IN RE: THE ESTATE OF RUSSELL J. SOLOMON (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and decree so appealed from is unanimously affirmed without costs.

Memorandum: In this dispute arising from the sale of residential real property by petitioner, as executor of the estate of Russell J. Solomon (decedent), to respondents Lori VanDeWall and James VanDeWall (VanDeWalls), respondents Bridgette Solomon and Charles Solomon (respondents), decedent's adult children who were named as devisees of the property in decedent's will, appeal from an order and decree following an evidentiary hearing that, inter alia, adjudged nunc pro tunc that the sale of the property was proper under SCPA 1902, adjudged that the VanDeWalls were bona fide purchasers for value, and ratified the sale of the property. We affirm.

Although respondents correctly contend that title to real property specifically bequeathed in a will vests in the devisees immediately upon the decedent's death (see Waxson Realty Corp. v Rothschild, 255 NY 332, 336 [1931]; Ehlenfield v Kingsbury, 206 AD3d 1671, 1672 [4th Dept 2022]; Matter of Ballesteros, 20 AD3d 414, 415 [2d Dept 2005]), we note that “such vesting is not absolute, and there are circumstances that would allow the [executor] to dispose of the property in a manner that is not contemplated by the specific bequest” (Rhiney v Rhiney, — AD3d —, —, 2026 NY Slip Op 02428, *4 [2d Dept 2026]; see Ehlenfield, 206 AD3d at 1672-1673). “Stated another way, the law presents the anomalous situation in which, although title to the property technically vests in the devisees relating back to the date of [the] decedent's death once the will is admitted to probate, the executor ․ nevertheless has the power to sell the real property” (Rhiney, — AD3d at —, 2026 NY Slip Op 02428, *4 [internal quotation marks omitted]; see Ehlenfield, 206 AD3d at 1672-1673). “Where[, as here,] real property is specifically bequeathed in a will, the [executor] may still sell the property, subject [first] to approval from ․ Surrogate's Court” (Rhiney, — AD3d at —, 2026 NY Slip Op 02428, *4; see EPTL 11-1.1 [b] [5] [E]; Ehlenfield, 206 AD3d at 1673). For example, upon the approval of the Surrogate, the executor may sell specifically bequeathed property when doing so is necessary to satisfy the estate's debts and obligations (see EPTL 11-1.1 [b] [5] [E]; SCPA 1902; Ehlenfield, 206 AD3d at 1673).

There is no dispute here that petitioner did not seek leave of the Surrogate before selling the property to the VanDeWalls, and thus the sale was not statutorily authorized (see Ehlenfield, 206 AD3d at 1673). Nonetheless, “[e]ven though she did not do so, the fact that [petitioner] could have received express authority from the Surrogate[ ] ․ to make the transfer renders such a transfer voidable, but not void ab initio” (Rhiney, — AD3d at —, 2026 NY Slip Op 02428, *4). Indeed, “there remains ‘a difference in quality between an act which cannot be performed at all and an act which is authorized, but which requires judicial approval’; ‘[s]ometimes the latter may be deemed valid or become validated even if prior approval had not been obtained’ ” (Rockwell v Despart, 212 AD3d 27, 35 [3d Dept 2022], lv dismissed 40 NY3d 974 [2023]; see Rhiney, — AD3d at —, 2026 NY Slip Op 02428, *4). Contrary to respondents’ contention, we conclude that the Surrogate properly entertained the petition seeking to ratify the sale and had the authority to provide approval, nunc pro tunc, of the executor's sale of the property for the purpose of satisfying the estate's debts and obligations (see SCPA 201; see also EPTL 11-1.1 [b] [5] [E]; SCPA 1901, 1902). As the Surrogate properly determined on the merits, the evidence at the hearing established that, even excluding the mortgage debt that would have become the responsibility of respondents, the estate had numerous non-mortgage debts and obligations in excess of its liquid assets, and thus the sale of the property was necessary for the payment of those liabilities (see EPTL 11-1.1 [b] [5] [E]; SCPA 1902; see generally Ballesteros, 20 AD3d at 414-415).

Respondents next contend that the Surrogate erred in determining in the alternative that the VanDeWalls were bona fide purchasers for value who were thus protected against rescission on that basis. We reject that contention. “A bona fide purchaser is ‘one who purchases real property in good faith, for valuable consideration, without actual or record notice of another party's adverse interests in the property and is the first to record the deed or conveyance’ ” (SRP 2012-4, LLC v Chan, 176 AD3d 1628, 1629-1630 [4th Dept 2019]; see Ehlenfield, 206 AD3d at 1674). “It is only if the ‘facts within the knowledge of the purchaser are of such a nature, as, in reason, to put [them] upon inquiry, and to excite the suspicion of an ordinarily prudent person and [they] fail[ ] to make some investigation, [that] [they] will be chargeable with that knowledge which a reasonable inquiry, as suggested by the facts, would have revealed’ ” (Miner v Edwards, 221 AD2d 934, 934 [4th Dept 1995], quoting Anderson v Blood, 152 NY 285, 293 [1897], rearg denied 153 NY 649 [1897]).

Here, it is undisputed that the VanDeWalls purchased the property for valuable consideration. Moreover, the VanDeWalls had no “duty to inquire merely because the sale was consummated via an executor's deed” (Ehlenfield, 206 AD3d at 1674) and, contrary to respondents’ contention, the record does not support the conclusion that the VanDeWalls had “knowledge of any fact, sufficient to put [them] on [notice] as to the existence of some right or title in conflict with that [they were] about to purchase” (Williamson v Brown, 15 NY 354, 362 [1857]; see Ehlenfield, 206 AD3d at 1674; Miner, 221 AD2d at 934-935). To the extent that respondents contend otherwise, we also note that “the deed is not void ab initio but, at most, voidable” (Ehlenfield, 206 AD3d at 1674). Although “ ‘[a] deed based on forgery or obtained by false pretenses is void ab initio,’ ” respondents “do[ ] not contend that the deed was based on forgery or obtained by false pretenses”; rather, respondents “merely contend[ ] that [petitioner] lacked the authority to sell the property” (id. at 1674-1675). While petitioner lacked the statutorily required approval of the Surrogate at the time of the transaction, “ ‘sales of property by executors falling within certain prohibitions of a long public policy are voidable and not void’ ” (id. at 1675). Consequently, the VanDeWalls, as bona fide purchasers, are protected against rescission under the circumstances of this case (see id.).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court