Matter of Murrell

Matter of Murrell 2024 NY Slip Op 34635(U) December 30, 2024 Surrogate's Court, New York County Docket Number: File No. 2021/251 Judge: Rita Mella Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

SURROGA TE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------x Probate Proceeding, Petition by Dana Holland, in the Estate of DECISION and ORDER ISSUING PRELIMIN ARY ESTHER MURRELL, LETTERS TESTAMENTARY and LETTERS of TEMPORARY Deceased ADMINISTRATION

File No.: 2021-251 -------------------------------------------------------------------------x Probate Proceeding, Cross-Petition by Carolyn Gilliard, in the Estate of

File No.: 2021-251/A ESTHER MURRELL,

Deceased. -------------------------------------------------------------------------x Application for Preliminary Letters Testamentary by Carolyn Gilliard, in the Estate of

ESTHER MURRELL, File No.: 2021-251/B

Deceased. -------------------------------------------------------------------------x MELLA, S.:

Presently before the court is an application by Carolyn Gilliard (Gilliard) for Preliminary

Letters Testamentary in the estate of Esther Murrell (decedent). The application is incident to

Gilliard's cross-petition for probate of an instrument dated February 5, 2019 (February Instrument).

Dana Holland (Holland) petitions for the issuance of Letters of Administration c.t.a. to her, attendant

to her petition for probate of a January 31, 2019 instrument (January Instrument), 1 and also opposes

Gilliard's application for preliminary letters.

For the purposes the present application, a brief recital of the pertinent history of this estate is

warranted.

1 It appears that no original of this instrument has been proffered.

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Background

Decedent passed away on March 11, 2020, at the age of 93. According to Gilliard' s and

Holland's petitions, decedent was not survived by any distributees. 2

Almost a year after decedent's death, Holland filed her petition, along with a Renunciation of

Appointment as Executor executed by Gilliard (SCP A 1417[ 1]), seeking probate of the January

Instrument, which bequeaths decedent's residuary estate to Holland and Gilliard in equal shares. It

nominates Gilliard as primary executor and Holland as the successor executor.

A few months later, Gilliard filed a Retraction of her Renunciation pursuant to SCP A

1417(2), and shortly thereafter her cross-petition for probate of the February Instrument and

application for Preliminary Letters Testamentary. Under this instrument, Gilliard is nominated as sole

executor with no named successors. The instrument bequeaths decedent's entire residuary estate to

Gilliard and Holland. Gilliard represents that she seeks to be appointed fiduciary to be substituted in

for decedent in a New York County Supreme Court action that Gilliard commenced against Citibank

and decedent's estate (''Supreme Court Action") regarding ownership of a bank account that decedent

and Gilliard jointly owned. 3 This action has been stayed pending the appointment of a fiduciary for

decedent's estate.

Holland objects to Gilliard's appointment as fiduciary arguing that she is ineligible, pursuant

to SCPA 707(1 )( d), because she engaged in self-serving behavior including the conversion of

decedent's assets at Citibank. Holland specifically requests that this court disqualify Gilliard from

serving as executor of decedent's estate and that Holland be appointed fiduciary instead.

2 No affidavit ofkinship has been filed with the court substantiating this allegation. 3 NY County Supreme Court, Index No. 159920/2022, Carolyn Gilliard v. Citibank et. al. 2

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In response, Gilliard maintains that no proof exists to substantiate Holland's claims. She also

argues that an inquiry into decedent's non-testamentary assets is the subject of the Supreme Court

action and need not be resolved at the appointment stage of this estate's administration.

Discussion

Having considered all the facts and in the exercise of its discretion, the court concludes that

Gilliard should be appointed as Preliminary Executor, with limitations, and that Holland should be

appointed as a Temporary Administrator of the estate, with limitations.

Preliminary Executor Appointment Requirements

Though the parties dispute who should serve as this estate's fiduciary, Gilliard is undoubtedly

the nominated executor in both propounded instruments. Over a century ago, the Court of Appeals

affirmed that, "the testator ... enjoys the right to determine who is most suitable among those legally

qualified to settle his affairs and execute his will, and his solemn selection is not lightly to be

disregarded" (Matter of Leland, 219 NY 387,393 [1916]). Additionally, hostility between a

nominated fiduciary and those interested in the estate does not itself require the denial of letters

(Matter of Rattner, 107 AD3d 600 [1st Dept 2013]).

The court, nevertheless, has the authority to "limit or authorize the person named in such

letters in any manner that the court deems advisable for the effective protection of the rights of all

persons who may have an interest in the estate of the decedent" (SCPA 1412[4][a]). Even, "[w]here

the will ... explicitly dispenses with the filing of a bond the court shall nevertheless have full and

complete discretion at any time ... to require the person seeking such letters to file a bond in such

amount as the court deems advisable under the circumstances of the particular case" (SCPA 1412[5]).

In this case, the primary dispute between the parties stems from the Citibank assets at issue in

the Supreme Court action and Holland's concerns about Gilliard's appointment as fiduciary in view

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of Gilliard's alleged misconduct related to decedent's assets. Since Gilliard has an interest in the

outcome of that action as a plaintiff, for her to serve as the fiduciary of the estate and thereby become

a defendant in that action appears to present a conflict of interest (Globe & Rutgers Fire Ins.

Co. v. Hines, 273 F 774, 777 [2d Cir I 921 ], cert denied 257 US 643 [I 921 ]["It is incongruous that the

same person should direct and conduct both the prosecution and the defense of the same suit, no

matter in what capacity he may appear"]; Matter of Hunter, 6 AD3d 117, 123 [2d Dept 2004]

["[T]hose who have a beneficial interest in a trust or estate 'ought not to be concluded by a

proceeding instituted by [the trustee or executor] against himself" (internal quotations and citations

omitted)]).

For present purposes, however, Gilliard's wholesale disqualification as fiduciary is not

warranted. That a nominated executor's character failings may be offensive to others is not a bar to

her appointment unless it is clearly demonstrated that in the aggregate, they are unworthy of the

fiduciary responsibilities to be undertaken (Matter of Gottlieb, 75 AD 3d 99 [1st Dept 2010]; Matter

of Flood, 236 NY 408, 411 [1923] [stating that a nominated fiduciary's improvidence can preclude

his appointment if his habits of mind render him generally unfit under all ordinary circumstances and

quoting Emerson v Bowers, 14 NY 449,454 (1856)]). Holland's concerns and the integrity of the

estate can be addressed by the imposition of a bond as well as limitations to Gilliard' s authority so

that she may not represent the estate in the Supreme Court action. In light of the foregoing,

Preliminary Letters will issue to Gilliard with bond and such limitations.

Temporary Administrator Appointment Requirements

Letters of Temporary Administration may be granted "within the sound discretion of the

Surrogate, who retains the power, in equity, to appoint a temporary administrator to conserve the

assets of the estate in question" (Matter of Mary T(ffany, NYLJ, July 20, 2000, at 34, col 4 [Sur Ct,

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Westchester County] [emphasis added]; see Matter of Erlanger, 136 Misc 793, affd229 App Div 778

[1st Dept 1930]; see also Matter ofSmith, 71 Misc 2d 248 [Sur Ct, Erie County 1972]; Matter of

Larsen, 13 7 Misc 271 [Sur Ct, Kings County 1930]). Moreover, any beneficiary or nominated

executor under the last will of a decedent is eligible to serve as Temporary Administrator (SCPA

902[7]).

The court may limit the authority of a temporary administrator, "in any manner that the court

deems advisable for the effective protection of the rights of all persons who may have an interest in

the estate of the decedent" (SCPA 903[4][a]).

As mentioned previously, as a result of Gilliard's interest in the outcome of the Supreme

Court action as plaintiff and considering the dispute as to whether the Citibank assets are estate

assets, it is not in the best interests of the estate to appoint Gilliard as fiduciary to substitute in that

action for decedent's estate as defendant.

The court therefore appoints Holland Temporary Administrator, with authority limited to

representing decedent's estate in the Supreme Court action (see CPLR § 1015 [a]).

Order

Consistent with these determinations it is hereby:

ORDERED that Preliminary Letters Testamentary shall issue to Carolyn Gilliard upon her

posting a bond in the amount of $300,000 and qualifying according to law; and it is further

ORDERED that the authority of Carolyn Gilliard as Preliminary Executor be limited, to the

extent that she shall have no power to appear on behalf of or represent decedent's estate in the

Supreme Court action (Gilliard v. Citibank et al. - NY County Supreme Court Index No:

159920/2022); and it is further

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ORDERED that Letters of Temporary Administration shall issue to Dana Holland with her

authority limited to representing the estate in the Supreme Court action (Gilliard v. Citibank et al. -

NY County Supreme Court Index No: 159920/2022).

This decision constitutes the order of the court.

Clerk to notify counsel whose names and email addresses appear below.

Dated: December 30, 2024 SURROGATE

TO: Russel Morgan, Esq. - attorney for Dana Holland - at rmorgan@morganlegalny.com

Neva D. Strom, Esq. - attorney for Carolyn Gilliard- at neva.strom@gmail.com

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