ESTATE OF MARY DAVIS, Deceased In this SCPA 2103 proceeding, the administrator d.b.n. who is a granddaughter of the decedent and a son of the decedent move, pursuant to CPLR 3212, for summary judgment dismissing the objections of the respondent son and the entry of a decree declaring that real property located at 1042 Woodycrest Avenue in the Bronx constitutes an asset of the estate. The motion is opposed by the objectant who contends that he is a one-half owner of the realty as tenant in common with the decedent. Although the petition also sought a declaration with respect to a separate parcel of realty, in their motion papers the movants expressly withdraw all claims with respect to any property other than the realty at issue. Resolution of the motion turns on the identity of "Albert Davis" who appears on a deed and mortgage of the realty, with the movants claiming that the decedent’s predeceased husband is the "Albert Davis" on those documents, and the objectant claiming that he is the "Albert Davis" who is named as a grantee on the deed. The decedent died intestate on May 18, 1992 at the age of 66. Her distributees are 13 children, five of whom post-deceased, including the original administrator of the estate.
In their petition the movants alleged that: (1) in 1977, the U.S. Department of Housing and Urban Development (HUD) deeded property consisting of a three-family home to the decedent and her husband Albert Davis for $1; (2) when the decedent’s husband predeceased her intestate, the property vested in decedent alone, as the deed is silent as to the form of ownership so the property is presumed to have been held by them as tenants by the entirety, and the decedent lived at the property until her death; and, (3) when the decedent died, the objectant, who is also named Albert Davis, took possession of the realty and held himself out as owner and converted same. The documentary evidence annexed to the petition and submitted on the motion reveals that by bargain and sale deed dated June 24, 1977 and duly recorded, "Mary Davis and Albert Davis" obtained the property from HUD through the Federal Housing Commissioner. On April 18, 1985, "Mary Davis and Albert Davis" obtained a mortgage on the realty in the amount of $4,800 from Central Federal Savings Bank FSB, which was also duly recorded. The objectant originally claimed that he, as tenant in common, owned one-half of the realty outright and owned the other one-half of the realty by adverse possession; however, he now proceeds solely on the theory that he owns one-half of the realty as tenant in common based on the deed, and that he owns another one-thirteenth interest as a distributee of this estate.
