From Casetext: Smarter Legal Research

In re Accounting by Mancini

Surrogate's Court, Schenectady County, New York.
Apr 27, 2012
35 Misc. 3d 1224 (N.Y. Surr. Ct. 2012)

Opinion

No. 2009–308/A.

2012-04-27

In the Matter of the ACCOUNTING by Deborah M. MANCINI, Finance Commissioner Of the County of Schenectady as the Administrator of the Estate of Stanley Elmer Pitcher, Deceased.

Tabner, Ryan and Keniry, LLP, John W. Tabner, Esq., of counsel, Albany, Attorneys for Deborah M. Mancini, Administrator. Chad E. Balzer, Esq., Balzer & Leary, PLLC, State of New York, Attorney General, Patrick T. Morphy, Esq., Assistant Attorney General, Albany, Guardian ad Litem for Unknown Distributees.


Tabner, Ryan and Keniry, LLP, John W. Tabner, Esq., of counsel, Albany, Attorneys for Deborah M. Mancini, Administrator. Chad E. Balzer, Esq., Balzer & Leary, PLLC, State of New York, Attorney General, Patrick T. Morphy, Esq., Assistant Attorney General, Albany, Guardian ad Litem for Unknown Distributees.
VINCENT W. VERSACI, J.

VINCENT W. VERSACI, S.

By Petition dated March 10, 2010, the Administrator of this Estate petitioned this Court to judicially settle the final account. This account was subsequently amended on two occasions, and now before the Court is the Second Amended Final Account of the Administrator for the period from July 22, 2009 to May 13, 2011. A Citation was issued to the interested parties to this proceeding (who will be individually and specifically discussed below), along with an Order for Publication of the Citation. Proof of service of the Citation by publication, and by personal service on the Attorney General, have been filed with the Court. Also filed with the Court are the Notice of Appearance of the Attorney General, and the Waivers of Citation and Consents to the Accounting executed by three maternal first cousins of the Decedent, namely, Sheridan Crowningshield, Ellen Burke, and Alberta Gentles.

The Administrator of this Estate at the time this Petition was filed was George A. Davidson, the former Schenectady County Commissioner of Finance. Subsequent thereto, Mr. Davidson was replaced by the current Commissioner of Finance, Deborah M. Mancini. By Order dated March 23, 2011, this Court sua sponte granted Amended Letters of Administration in this Estate to Ms. Mancini.

On the return date of the Citation, the Court appointed a Guardian ad Litem to represent the interests of the unknown distributees of the Decedent. The Guardian ad Litem has submitted his Report along with an Affidavit of Services Rendered, which the Court has reviewed and considered. The Court has also reviewed and considered the Affidavits of Attorney Tabner, and all of the exhibits annexed thereto, dated June 23, 2010, November 16, 2010, and August 18, 2011, respectively.

The Decedent died intestate over 14 years ago, on December 1, 1997, at the age of 87. In the first Petition for Judicial Settlement of the Account filed by the former Administrator George A. Davidson, the Administrator reported that there were no known distributees of the Decedent and that the Attorney General was therefore the only interested party to this proceeding. In response to the Court's request for an Affidavit of Due Diligence, Attorney Tabner submitted his Affidavit dated June 23, 2010, which simply annexed an “Investigation File” previously complied by the attorney who handled the Supreme Court conservatorship proceeding that was filed while the Decedent was alive. Also annexed to Attorney Tabner's Affidavit were the pleadings and other court documents relating to the conservatorship. Upon review of all these documents, the Court found that additional due diligence was required, and requested the Administrator to retain the services of a genealogist to complete the search for any heirs of the Decedent.

The Administrator thereafter retained the services of Von Langen, LLC, a forensic genealogist firm. Investigator Cliff von Langen completed a Report of Findings, dated October 14, 2010, which report is annexed as Exhibit “B” to Attorney Tabner's Affidavit of Due Diligence, sworn to on November 16, 2010. The undisputed findings of the genealogist are as follows: the Decedent was not survived by a spouse and had no issue. Both of the Decedent's parents predeceased him. The Decedent had one sibling who predeceased him without issue. The Decedent's grandparents, aunts and uncles all predeceased him on both the paternal side and the maternal side of the family.

Neither the Attorney General's Office, the Guardian ad Litem, nor any other interested party to this proceeding has disputed the findings of the genealogist, requested a kinship hearing, or filed Objections to the Accounting. Accordingly, the Court finds that all parties have waived their right to a kinship hearing. Furthermore, and in consideration of the limited resources of this Estate, the Court finds that there is no need to conduct such a hearing, and will rely upon the findings set forth in the genealogist's report in rendering this decision.

The genealogist's report further reveals that twenty (20) paternal first cousins were identified and determined to have either predeceased or post-deceased the Decedent. In addition, a minimum of eight (8) “possible” paternal first cousins were identified, but further research is required to confirm their relationship to the Decedent. Eleven (11) maternal first cousins were also identified, three of whom survived the Decedent and are still living. The remaining maternal first cousins who were identified were determined to have either predeceased or post-deceased the Decedent. In addition, a “possible” post-deceased maternal first cousin, Wilhelmina A. Crowningshield, was identified and determined to have possibly been adopted by one of the Decedent's maternal uncles; however, a formal adoption was not verified.

The genealogist's report goes on to further list the issue of post-deceased first cousins “per Client's instructions regarding the scope of the assignment”. Notably, the genealogist indicated that this further search for heirs beyond the level of first cousins was “for informational purposes only” (page 1 of the genealogist's report).

Despite the findings of the genealogist that specifically identified thirteen (13) first cousins who survived the Decedent both on the paternal and maternal sides, the Administrator, in amending her Accounting, proposes that the entire net estate, after payment of all expenses, be distributed equally among the three living maternal first cousins. In support of this proposed plan of distribution, the Administrator erroneously states in Supplemental Schedule J of the Second Amended Accounting that “there were no paternal distributees surviving. He [Decedent] was survived by three (3) maternal first cousins and other first cousins once removed ... [N]one of such first cousins once removed have filed a claim or contacted the decedents estate.”

The Administrator cites to EPTL § 4–1.1(a)(6), EPTL § 4–1.1(a)(7), SCPA § 2225, Matter of Donohue, 163 Misc.2d 537, and Matter of Briggs, 167 Misc.2d 972 as the legal authority for this proposed plan of distribution. However, elsewhere in the Second Amended Accounting, namely, in Schedule H and in Schedule J, contrary to the proposed plan to pay the entire net estate to the three living maternal first cousins, the Administrator proposes that one-half of the estate be distributed to the paternal side and one-half be distributed to the maternal side, and that the shares of the post-deceased first cousins and any other unknown distributees be paid into court pursuant to SCPA § 2223.

As will be discussed at length below, while some of the legal authority cited above does govern the outcome of this case, none of the cited authority, or any other legal authority for that matter, supports the Administrator's proposed plan to distribute the entire net estate to the three living maternal first cousins. Any such distribution is fundamentally improper and would be contrary to the clear black letter laws of intestacy and common law precedent.

EPTL § 4–1.1 governs the descent and distribution of an intestate estate. It is clear based on the findings of the genealogist that the closest relatives who survived the Decedent are a minimum of thirteen (13) first cousins, or, to use the specific language contained in subparagraph (6) of the statute, “the issue of grandparents”. Thus, distribution of this Estate is governed by EPTL § 4–1.1(a)(6), as amended in 1992, which provides in pertinent part as follows:

(a) If a decedent is survived by:

* * *

(6) One or more grandparents or the issue of
grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; ... For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.

In its 1992 amendment to this subparagraph, the Legislature added the last sentence in order to “impose a limit on the level of distribution” by cutting off “issue” at the level of first cousins. Matter of Briggs, supra, at 973–974. “First cousins once removed were not totally cut off, but they only take if the decedent was survived by no first cousins.” Id. In other words, once a decedent dying intestate is found to have been survived by even just one first cousin (and no other relative closer in descent), then by virtue of the limiting definition of “issue of grandparents” as contained in the last sentence of subparagraph (6) of EPTL § 4–1.1(a), the level of distribution stops at the generation of first cousins, and never gets to the generation of first cousins once removed. Thus, under this scenario, a first cousin once removed never qualifies as a distributee in this decedent's estate, and EPTL § 4–1.1(a)(7) never comes into play when there is at least one surviving first cousin. The class of first cousins would inherit all “as they are one step nearer in relationship to the decedent than the first cousins once removed.” Matter of Donohue, supra, at 539. See also, Matter of Briggs, supra; Matter of Shumavon, 260 A.D.2d 140, 141; 6 Warren's Heaton on Surrogate's Court Practice § 74.12[6] (7th ed. LexisNexis Matthew Bender).

To the extent that the last sentence of EPTL § 4–1.1(a)(6) might be interpreted to be in conflict with the directive contained elsewhere in the subparagraph that distribution is to be made “by representation”, the Second Department explained away this misinterpretation in Matter of Shumavon, 260 A.D.2d 140, 142–144. The majority court in Shumavon held that the final sentence of EPTL § 4–1.1(a)(6) expressly excludes great-grandchildren of the decedent's grandparents, or first cousins once removed, from the class of potential distributees. “The use of the phrase by representation' elsewhere in the statute simply means that where the potential distributees, as defined so as to exclude first cousins once removed, are members of different generations, then a particular method for calculating each distributees' share is to be used.” Id. at 142. In other words, the “by representation” language becomes particularly relevant to the calculation of distributive shares when a decedent is survived by members of two different generations, such as an aunt or uncle and a first cousin. Pursuant to EPTL § 4–1.1(a)(6), their distributive shares will be determined “by representation” as that term is defined in EPTL § 1–2.16. Id. at 142–143.

Similar to the majority opinion in Shumavon, this Court does not see any inconsistency between the “by representation” language and the last sentence of EPTL § 4–1.1(a)(6). Simply stated, the “by representation” language does not in and of itself determine who the class of authorized distributees is, but rather governs the calculation of their distributive shares once the class has been determined. The class is determined by giving effect to the last sentence of EPTL § 4–1.1(a)(6) which disinherits not only all first cousins once removed, regardless of whether their parents (the decedent's first cousins) post-deceased the decedent or predeceased the decedent, but also in essence, disinherits predeceased first cousins and their surviving issue. Once the class is identified, the distributive shares will be determined “by representation” as required by the statute but only up to the generation of first cousins and limited to only those first cousins who survived the decedent.

Thus, the last sentence of EPTL § 4–1.1(a)(6) does not render meaningless or “detract from the force of the by representation' language used elsewhere in the statute.” Id. at 143. It simply cuts off intestate distribution under EPTL § 4–1.1(a)(6) at the generation of first cousins and excludes those first cousins who pre deceased the decedent and their surviving issue. Nowhere in the statute or in any case law interpreting it are post -deceased first cousins, meaning those first cousins who survived the decedent but have since died, excluded from inheriting under EPTL § 4–1.1(a)(6).

Attorney Tabner argues that Matter of Donohue, supra and Matter of Briggs, supra support the Administrator's proposed plan to distribute the entire net estate to the three living maternal first cousins to the exclusion of the post-deceased first cousins identified by the genealogist. He cites those cases in support of his argument that SCPA § 2225 and EPTL § 4–1.1(a)(6), when read together, stand for the proposition that all persons beyond the status of first cousins may be found to have predeceased the decedent when more than three years have elapsed without any such distributees coming forward claiming entitlement to a share of the estate.

Counsel's argument is fatally flawed and his reliance on those cases is misplaced for several reasons. First, neither of those cases even mentions SCPA § 2225 or its relationship to EPTL § 4–1.1(a)(6), let alone them being read in conjunction with one another. Secondly, the facts of those cases are completely dissimilar to the circumstances herein. Neither of those cases involved post-deceased first cousins, as in the case at bar. Both of those cases involved a failed attempt by the surviving children of the first cousins who had pre deceased the decedent to inherit along with the surviving first cousins under EPTL § 4–1.1(a)(6). The courts in those cases found that only the surviving first cousins inherit under EPTL § 4–1.1(a)(6), to the exclusion of the surviving issue of predeceased first cousins, or first cousins once removed. Id.

This is not the scenario we have in this case, where the Decedent was survived by many first cousins, some of whom have since died and some of whom are still living. Given the factual distinctions between this case and Donohue and Briggs, those cases are of limited relevance to the disposition of this case. In any event, those cases clearly do not support Attorney Tabner's argument that the post-deceased first cousins should forfeit their inheritance simply because they are no longer alive.

On the contrary, there are several cases that clearly do not exclude post-deceased first cousins from inheriting under EPTL § 4–1.1(a)(6). See, e.g., Matter of Riley, NYLJ, Jan. 14, 2009, at 34, col. 1 (Sur. Ct. Kings County) (court determined that the decedent's sole distributee on the paternal side was the estate of a post-deceased first cousin); Matter of Packin, 237 NYLJ 14 (court found that a post-deceased first cousin was entitled to inherit, and ordered that his share be paid to the duly appointed fiduciary of his estate); Matter of Weiss, NYLJ, Dec. 28, 2004, at 2, col. 3 (Sur. Ct. Bronx County) (court ordered that the distributive shares owed to post-deceased distributees be paid to the duly appointed fiduciaries of their respective estates). See also, New York Estate Administration § 4.01[a] (LexisNexis Matthew Bender) (“When a distributee survives the decedent but dies before the administrator distributes her share, it passes to her estate.”)

Thus, the fact that a distributee dies after the decedent but before final distribution does not change the fact that such distributee “survived” the decedent for purposes of EPTL § 4–1.1(a). Counsel seems to think that a “surviving” distributee means surviving as of today, not as of the Decedent's date of death. Clearly, this is a misunderstanding of the term “surviving”, as a distributee need only survive the decedent by one day to qualify as a distributee under EPTL § 4–1.1(a). The fact that several first cousins died after the Decedent's date of death does not mean they forfeit their inheritance and are cut off like the first cousins who died before the Decedent's date of death. To put it another way, the Decedent's three living first cousins do not “luck out” and inherit the whole estate just because they were fortunate enough to be the only distributees to have out-lived the final distribution of this estate.

Based on all of the foregoing, the Court finds that the class of distributees who are entitled to inherit under EPTL § 4–1.1(a)(6) consists of all of the Decedent's first cousins who were alive at the time of his death. Turning back now to the genealogist's report, it is unclear why the genealogist included a search for the distributees of post-deceased first cousins. Once all of the surviving first cousins were identified, whether alive or deceased at the time they were found, the inquiry with respect to their distributive shares should have ended there. Their shares are to be paid to them directly if they are still living or to their respective estates if they are now deceased. As discussed at length above, the shares of the post-deceased first cousins can never be paid to their respective distributees because EPTL § 4–1.1(a)(6) prohibits first cousins once removed from directly inheriting from this estate. Thus, the genealogist did not need to search for the distributees of post-deceased first cousins as he did, albeit for “informational purposes only”. Perhaps the genealogist's services could have been put to better use to investigate whether estates have been filed for the post-deceased first cousins and if so, who are the duly appointed fiduciaries of those estates.

This is not to say that the children of the post-deceased first cousins could never receive their parent's share of this estate. Whether they will ultimately receive their deceased parent's share of this estate depends on who the beneficiaries are of their parent's estate. The proper place for that determination to be made is in the context of a separate estate proceeding filed for the post-deceased first cousin, not in this estate.

Having determined that there is no need to know the identity or whereabouts of the Decedent's first cousins once removed for purposes of this estate proceeding, the Court finds that, despite the arguments of Attorney Tabner to the contrary, there is no need to even consider applying the provisions of SCPA § 2225(a) or (b) vis-a-vis the first cousins once removed because they never qualify as distributees. Nor can SCPA § 2225 ever be applied to declare a distributee to have predeceased the decedent when we know for a fact that such distributee survived but post-deceased the decedent, as several of the Decedent's first cousins did in this case.

This is not to say that SCPA § 2225 does not apply to this case vis-a-vis other potential distributees. Pursuant to the genealogist's report, a minimum of eight (8) “possible” paternal first cousins were identified, but it was indicated that further research would be required to confirm their relationship to the Decedent and to determine whether there are more. In addition, there are six (6) first cousins who were identified and are presumed to be dead based on their respective ages as of the Decedent's date of death or based on information the genealogist obtained from other family members. However, their exact dates of death are unknown, so the genealogist could not conclusively state whether these first cousins predeceased or post-deceased the Decedent.

With respect to these identified individuals for whom confirming documentation could not be found, the Court finds that the ameliorative provisions of SCPA § 2225 should be utilized to exclude them from the class of authorized distributees of the Decedent. Applying the criteria used by the courts to determine whether a sufficiently diligent search as required by SCPA § 2225(a) has been completed, “including the size of the estate, the amount of time which has elapsed since any other possible distributees were heard from, and the lack of any leads as to their whereabouts” ( Matter of Packin, supra ), this Court finds that a reasonably diligent search was made and no further information can be ascertained. See also, Matter of Beimel, NYLJ, July 29, 2004, at 26, col. 4 (Sur. Ct. Bronx County); Matter of Weiss, supra.

As determined in Matter of Schrake, 129 Misc.2d 671:

... Under SCPA § 2225, all that a successful petitioner need prove is that within the context of what can reasonably be expected in relation to the sum of money involved, despite a reasonably diligent search, no information about the missing potential distributee ... was ascertained. In each SCPA § 2225 case, what constitutes a reasonable effort is necessarily circumscribed by the sum of money involved. Clearly, one cannot be expected to embark on a diligent search that would be of such a scope that it would be disproportionately expensive in relation to the sum at issue ... The level of proof required to give rise to a SCPA § 2225 presumption so that an estate can be distributed involves no more than establishing an absence of information despite a reasonable effort to garner such information. [Internal citations omitted].
Id. at 672.

The Second Amended Accounting shows that there is a balance on hand of only $34,961.29. This balance will be further reduced after the payment of the Administrator's commission, the Guardian ad Litem's fee for the services he rendered, and attorneys' fees before distributing the net estate. The Decedent died more than fourteen (14) years ago, and none of these other possible distributees have been heard from in all this time despite the proper service of a Citation upon them by publication. Currently, there are no leads as to their whereabouts despite the diligent efforts of the genealogist to locate them.

Accordingly, the Court hereby determines that the following individuals all predeceased the Decedent pursuant to SCPA § 2225(a): the eight (8) “possible” paternal first cousins who were identified by the genealogist, namely, Arthur Pitcher, Pearl Pitcher, Alice Pitcher, William Pitcher, Emily Pitcher, Eva Pitcher, George Pitcher and Frank Pitcher; and the six (6) first cousins who were identified but whose exact dates of death could not be confirmed, namely, Donald Pitcher, Dorothy A. Abbott, Robert C. Abbott, Raymond Abbott, Winona Abbott and Leita A. Crowningshield.

To the extent that the genealogist intimated that there may be possible additional first cousins who were not identified and are presently unknown, the Court is satisfied pursuant to the provisions of SCPA § 2225(b) that diligent and exhaustive efforts have been made from all available sources to ascertain the existence of any additional distributees, that at least three years have elapsed since the Decedent's death, that the parties before the Court know of no distributees other than those stated in the record, and that no claim to a share in the estate has been made by any person whose relationship or existence has not been established in the record. Accordingly, pursuant to SCPA § 2225(b), the Court determines that no other distributees of the Decedent exist other than those whose status has already been established in the record before the Court and in this decision. See, Matter of Riley, supra; Matter of Shillington, 235 NYLJ 5.

The Court also applies the provisions of SCPA § 2225(b) to the “possible” post-deceased maternal first cousin, Wilhelmina A. Crowningshield, whose possible adoption by one of the Decedent's maternal uncles could not be confirmed or verified. Without proof of a formal adoption, and no claim to a share in this estate having been made by her in all of the years since the Decedent died, the Court hereby finds that she is not an authorized distributee of the Decedent.

Taking all of the foregoing into consideration, the Court hereby determines that the distributees of the Decedent on the paternal side are eight (8) surviving first cousins: Mildred Pitcher Cranston (post-deceased), Bessie J. Abbott (post-deceased), Thelma Abbott (post-deceased), Frank Jasper Dix (post-deceased), Sanford W. Dix (post-deceased), Elsie Carrie Dix (post-deceased), Mary Florence Dix (post-deceased), and David Jasper Dix (post-deceased); and the distributees of the Decedent on the maternal side are five (5) surviving first cousins: Albert Crowningshield (post-deceased), Sheridan Crowningshield, Stanley Elmer Crowningshield (post-deceased), Alberta Crowningshield Pulsifer Baker Gentles, and Ellen Crowningshield Howard Lesperance Burke. There are no other distributees that exist.

With regard to unpaid administration expenses, the following are hereby approved and can be paid from the balance on hand. The Court finds that the Administrator's commission was properly computed in Schedule I of the Second Amended Accounting, and approves a total commission in the amount of $1,974.35. This total commission shall be pro rated between the current Administrator Deborah M. Mancini and the former Administrator George A. Davidson as follows. The total period of account is from July 22, 2009 to May 13, 2011, or a total of 22 months. The first Accounting that was presented by Mr. Davidson was for the period from July 22, 2009 to February 18, 2010, or 7 out of the total 22 months. The Amended Accounting and Second Amended Accounting that were presented by Ms. Mancini extended the period of account to May 13, 2011 to include the remaining 15 months of the total accounting period. Accordingly, Mr. Davidson is entitled to 7/22 of the total awarded commission, or $628.20, and Ms. Mancini is entitled to 15/22 of the total awarded commission, or $1,346.15.

With respect to attorneys' fees, Attorney Tabner requests that the Court approve a fee in the amount of $9,295.45. In determining the reasonableness of an attorneys' fee in an estate proceeding, the Court will take into consideration a number of factors, including the “time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved”. Matter of Freeman, 34 N.Y.2d 1, 9,citing Matter of Potts, 241 N.Y. 593;Matter of Von Hofe, 145 A.D.2d 424, 425.

The Court has reviewed the billing records that Attorney Tabner annexed as Exhibit “D” to his Affidavit of Due Diligence sworn to on November 16, 2010. As of that date, approximately 40 hours had been spent on this file, billed at the rate of $250.00 per hour, and an additional 5 hours were estimated to be required to complete this estate proceeding. There is no question that this file required extraordinary work to satisfy the due diligence requirements in order to identify and locate the Decedent's distributees who were initially unknown. There is also no question that the work performed by Attorney Tabner benefitted the distributees who were found and will now receive their rightful inheritance.

While the fee requested amounts to roughly 23% of the gross estate, the Court finds that the amount requested is reasonable in light of the time spent, the complexity of the legal issues and the benefit to the estate. Accordingly, the Court hereby approves an attorneys' fee in the amount requested of $9,295.45, plus disbursements in the amount of $639.64.

With respect to the Guardian ad Litem's fee for the services he rendered, the Court has reviewed the Affidavit of Services submitted by Attorney Balzer, along with the itemization of time spent attached thereto. Attorney Balzer indicates that he spent a total of 6.2 hours in this matter and that his normal and usual hourly rate is $325.00 per hour.

Pursuant to the provisions of SCPA § 405, the Guardian ad Litem is entitled to receive reasonable compensation for the services he rendered to this estate. In determining what amount is reasonable, the Court will consider the same criteria used in determining the reasonableness of an attorneys' fee as set forth above. Id. See also, Matter of Burk, 6 A.D.2d 429. No one factor is determinative of the issue; rather, the Court will weigh all of the factors and in its sound discretion, determine the amount of compensation that is reasonable. Id.

The Court finds that the services rendered by Attorney Balzer were reasonable and necessary in the performance of his duties as Guardian ad Litem in this matter. However, the Court finds that Attorney Balzer's hourly rate is higher than the rate that would customarily be used for services rendered pursuant to a Court appointment. Accordingly, the Court reduces Attorney Balzer's hourly rate for this appointment to $200.00 per hour, and awards to Attorney Balzer the sum of $1,240.00 as reasonable compensation for his services as Guardian ad Litem.

Subtracting the above fee awards from the balance on hand leaves a net estate of $21,811.85. Pursuant to EPTL § 4–1.1(a)(6), one-half of this net amount shall be distributed to the eight (8) surviving paternal first cousins who are each entitled to an equal 1/8 of the paternal one-half of the estate, and the other one-half of the net estate shall be distributed to the five (5) surviving maternal first cousins who are each entitled to an equal 1/5 of the maternal one-half of the estate. See, Matter of Packin, supra; Matter of Beimel, supra. The Administrator is directed to pay the shares owed to the post-deceased distributees to the duly appointed fiduciary of each of their respective estates. Matter of Weiss, supra.

To the extent that the Administrator alternatively proposes that the shares of the post-deceased distributees be paid into court pursuant to SCPA § 2223, the Court hereby denies such relief as being premature. In all the due diligence that was performed in this case, there is no mention of any search being done to determine whether estate proceedings have been filed for the post-deceased first cousins and if so, who are the duly appointed fiduciaries of those estates. If after such a further search is completed and the Administrator believes that SCPA § 2223 relief is still appropriate, then the Administrator may present to the Court the results of the further search and renew her request to have the shares of the post-deceased distributees paid into court. However, such relief is not appropriate at this juncture.

To the extent not otherwise inconsistent herewith, the Second Amended Accounting is in all other respects hereby approved as being accurate and complete.

The foregoing shall constitute the Decision and Order of this Court.

Submit Decree.


Summaries of

In re Accounting by Mancini

Surrogate's Court, Schenectady County, New York.
Apr 27, 2012
35 Misc. 3d 1224 (N.Y. Surr. Ct. 2012)
Case details for

In re Accounting by Mancini

Case Details

Full title:In the Matter of the ACCOUNTING by Deborah M. MANCINI, Finance…

Court:Surrogate's Court, Schenectady County, New York.

Date published: Apr 27, 2012

Citations

35 Misc. 3d 1224 (N.Y. Surr. Ct. 2012)
953 N.Y.S.2d 548
2012 N.Y. Slip Op. 50856