Ray D. Morningstar and Juanita Morningstar, as Administrators of the Estate of Ray F. Morningstar, Deceased, Respondents-Respondents. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of the ESTATE OF Ray F. MORNINGSTAR, Deceased. Pryde L. Trill and Ray F. Davis, Petitioners-Appellants; Ray D. Morningstar and Juanita Morningstar, as Administrators of the Estate of Ray F. Morningstar, Deceased, Respondents-Respondents.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, PINE, AND HAYES, JJ. Hogan & Willig, PLLC, Amherst (Diane R. Tiveron of Counsel), for Petitioners-Appellants. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (James M. Gerlach of Counsel), for Respondents-Respondents.

Petitioners, alleged nonmarital children of decedent, commenced this proceeding seeking, inter alia, to remove respondents, marital children of decedent, from their position as administrators of decedent's estate pursuant to SCPA 711.   Decedent died intestate on September 4, 2001.   Respondents previously filed a petition seeking a decree establishing the right of inheritance to real property owned by decedent at the time of his death, and petitioners filed a cross petition seeking a decree establishing that they are each entitled to inherit a share of decedent's estate.   During the course of those proceedings, petitioners moved to compel the production of available blood and/or tissue samples of decedent for the purpose of conducting DNA testing (Matter of Morningstar, 17 A.D.3d 1060, 794 N.Y.S.2d 205).   We affirmed the order granting that motion.   Before Surrogate's Court issued the order granting the motion, petitioners filed the instant petition herein.   We conclude that the court properly denied the instant petition.

 Contrary to respondents' contention, petitioners have standing to seek respondents' removal as administrators.   Pursuant to SCPA 711, a “person interested” in an estate may petition the court for removal of the fiduciary charged with administering the estate.  “Person[s] interested” are those, inter alia, who are “entitled or allegedly entitled to share as [a] beneficiary in the estate ․” (SCPA 103[39] [emphasis added] ).  “Where [the SCPA] provides that a ‘person interested’ may apply for relief, a verified allegation of an interest in fact[ ] suffices for the purpose of the application, although the interest may be disputed, unless or until the fact of interest has been judicially determined and no appeal is pending therefrom” (id.;   cf. Matter of Lally, 215 App.Div. 369, 213 N.Y.S. 511). Although petitioners' status as nonmarital children of decedent is disputed, there has been no judicial determination of that issue, and thus petitioners are still “allegedly entitled” to share as beneficiaries in the estate (SCPA 103[39];  cf. Matter of Diaz, 102 Misc.2d 817, 819, 424 N.Y.S.2d 590).

 With respect to the merits of the petition, it is well settled that “[a] potential conflict of interest between a fiduciary and a party interested in the estate does not warrant the ․ removal of [ ] a fiduciary․ Rather, it is actual misconduct, not a conflict of interest, that justifies the removal of a fiduciary” (Matter of Shaw, 186 A.D.2d 809, 810, 589 N.Y.S.2d 97;  see Matter of Marsh, 179 A.D.2d 578, 580, 578 N.Y.S.2d 911;  Matter of De Belardino, 77 Misc.2d 253, 255-256, 352 N.Y.S.2d 858, affd. 47 A.D.2d 589, 363 N.Y.S.2d 974;  Metropolitan Trust Co. of City of N.Y. v. Stallo, 166 App.Div. 639, 644-645, 152 N.Y.S. 183).   A court may order the removal of a fiduciary if he or she has “wasted the assets of the estate or has otherwise improvidently managed or injured the property committed to his [or her] charge” (Matter of Giaimo, 73 Misc.2d 130, 133, 341 N.Y.S.2d 165, affd. 41 A.D.2d 600, 339 N.Y.S.2d 1000).   Additionally, “well-documented hostility” between a fiduciary and persons interested in the estate may provide a basis to remove the fiduciary if that hostility “jeopardizes the interests of the beneficiaries and the proper administration of the estate” (Matter of Rad, 162 Misc.2d 229, 232, 616 N.Y.S.2d 684;  see Matter of Jurzykowski, 36 A.D.2d 488, 491-492, 321 N.Y.S.2d 438, affd. 30 N.Y.2d 510, 330 N.Y.S.2d 60, 280 N.E.2d 887;  Matter of Duell, 258 A.D.2d 382, 382-383, 685 N.Y.S.2d 686).

 Petitioners contend that respondents have wasted estate assets and acted improvidently by engaging in unnecessary and frivolous litigation.   Respondents, however, have a duty to protect the estate from claims of “doubtful legality” (Matter of Hollinger, 93 Misc.2d 926, 931, 403 N.Y.S.2d 857;  see Matter of Lyons, 186 App.Div. 161, 166, 173 N.Y.S. 590, affd. 227 N.Y. 564, 124 N.E. 899;  Matter of Williams, 139 N.Y.S.2d 483, 487, mod. on other grounds 1 A.D.2d 1022, 151 N.Y.S.2d 561;  see generally Matter of Taylor, 251 N.Y. 257, 263-264, 167 N.E. 434).   Although respondents have a concomitant duty to avoid unnecessary, frivolous and “vexatious litigation” (Hollinger, 93 Misc.2d at 931, 403 N.Y.S.2d 857;  see e.g. Matter of McGillivray, 138 N.Y. 308, 312-313, 33 N.E. 1077), we conclude that respondents are fulfilling their duty to the estate by requiring petitioners to establish their entitlement to share as beneficiaries in the estate.

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

MEMORANDUM: