Estate of Steward

The following papers were considered in determining these motions:Notice of Motion by Order to Show Cause and Affirmation by Frederick C. Kelly, Esq., in Support, with Exhibits           1, 2Affirmation by Emory Housworth, Sr., in Opposition          3Affirmation by Menfus Housworth in Opposition and Cross-Motion to Dismiss, with Exhibits           4DECISION and ORDER  In this contested miscellaneous proceeding, RMX, LLC (RMX), moves by Order to Show Cause for an order of the court i) dismissing the objections interposed by Menfus Housworth (Menfus) to its petition to revoke letters of administration c.t.a. issued to Menfus and Calvin Hill (Calvin) in the estate of Mary E. Steward, a/k/a Mary Steward (the decedent) and to appoint a principal of RMX as fiduciary of the decedent’s estate, ii) immediately suspending Menfus and Calvin as co-administrators pursuant to SCPA §719(10), and iii) directing Menfus to file and serve a “verified statement” of the names of, and contact information for, the distributees of Hattie Housworth (Hattie), a legatee who post-deceased the decedent. Menfus, a pro se litigant, has filed opposition to the instant motion in which he also seeks an order of the court dismissing the instant petition to revoke and appoint. BackgroundThe decedent died on July 15, 1999, without issue. On April 2, 2001, the decedent’s last will and testament dated February 23, 1991 (the will), was admitted to probate, and letters of administration c.t.a. were issued to Menfus and Calvin. Pursuant to Article SECOND of the will, the decedent directed that certain real property located at 1888 Delphine Drive (1888 Delphine), in Dekalb County, Georgia, be sold and the proceeds thereof be distributed in six equal shares to her siblings Hattie, Minnie Hall (Minnie) and Rufus Tutt (Rufus), and her nieces Sara Martin (Sara), Jennifer Martin (Jennifer) and Sharon Martin (Sharon). Similarly, the decedent directed in Article THIRD of the will that certain real property located at 302-304 Fortune N.E., Atlanta, Georgia (302-304 Fortune, and together with 1888 Delphine, the Georgia real properties), be sold and the proceeds thereof divided equally among the above-named persons.Petition to Revoke and AppointOn October 4, 2018, RMX submitted a petition by Order to Show Cause,¹ which seeks to revoke the letters of administration c.t.a. issued to Menfus and Calvin, and to have a principal of RMX appointed as fiduciary of the decedent’s estate. RMX asserts its standing to petition as the holder of, purportedly, a five-sixths interest in the Georgia real properties and the decedent’s estate obtained in 2016 by assignments of interest and quitclaim deeds from legatees Sara, Jennifer and Sharon directly, and from the heirs of Rufus and Minnie, legatees who post-deceased the decedent. The remaining one-sixth interest in the decedent’s estate is asserted to belong to the heirs of Hattie.RMX asserts that Menfus and Calvin have failed to complete administration of the decedent’s estate, and that Menfus has actively “plundered” the decedent’s estate. RMX sets forth a narrative of various proceedings in Georgia, including i) tax foreclosure and redemption actions, ii) an action by RMX against Menfus and “unknown heirs” of the decedent’s distributees for, inter alia, an accounting and partition, and iii) a proceeding for issuance of ancillary letters to RMX.² In addition, RMX asserts that Menfus and Calvin have improperly executed deeds transferring ownership of the Georgia real properties to Menfus in 2001, and that in 1999 and/or 2000 Menfus asserted personal ownership of 302-304 Fortune in order to secure personal loans. RMX further alleges that Menfus has permitted his father, Emory Housworth, Sr. (Emory), to reside in one of the Georgia real properties without paying rent.By decision and order dated October 4, 2018, this court declined to sign the Order to Show Cause and entertain RMX’s petition pursuant to SCPA §2101(1)(b), noting that both the partition action and the proceeding for ancillary probate had been dismissed by Georgia courts. The court stated that RMX’s attempt to secure the entirety of interest in the decedent’s estate and in the Georgia real properties should not be determined by this court, but rather should be addressed by courts in Georgia, as it is the situs of the real property, the jurisdiction in which extensive prior litigation has ensued and in which all of the decedent’s heirs have not been identified; thus, the facts did not warrant the involvement of yet another court in another state.On November 5, 2018, on appeal by RMX, the Appellate Division, Second Department (the Appellate Division), reversed this determination after RMX withdrew its request for issuance of a temporary restraining order. The Appellate Division signed the Order to Show Cause, directing that the matter be calendered and returnable to this court on December 11, 2018. This court thereafter calendared the matter for December 11, 2018, as directed.On December 7, 2018, a verified answer was filed by Calvin, which he offers in support of the relief requested. Calvin states that while he no longer wishes to serve as co-administrator of the decedent’s estate, he will not renounce until Menfus is removed, believing that Menfus poses a danger to the estate if permitted to remain as sole fiduciary. On December 10, 2018, Menfus filed verified objections, asserting, inter alia, that RMX lacks standing, the proceeding is barred by the statute of limitations, unclean hands, fraud and breach of contract.At the call of the court’s calendar on December 11, 2018, RMX appeared by counsel, as did Emory, while Menfus appeared on his own behalf. As objections had been filed, the matter was marked for the court’s conference calendar; however, upon review of the petition, the court determined that the instant petition fails to comply with the requirements of SCPA §304(3), including that the failure to set forth the names and addresses of all interested parties.Accordingly, the court sent correspondence to all appearing parties, advising of the petition’s deficiencies and directing RMX to amend the instant petition and present a new citation for issuance.The Instant MotionOn December 21, 2018, RMX moved by Order to Show Cause for an order of the court dismissing Menfus’ objections and immediately suspending the letters of administration c.t.a. issued to Menfus and Calvin. In an affirmation in support, counsel for RMX asserts that the objections interposed by Menfus must be dismissed as “unintelligible” and “devoid of factual content.” He asserts that Menfus’ objections do not deny the allegations in RMX’s petition to revoke and appoint, thus conceding the truth of the matters alleged and warranting immediate suspension of his letters.Counsel to RMX also opines in his affirmation that the court “apparently believes that jurisdiction on [the instant petition to revoke and appoint] was never completed.” Nonetheless, he argues at length that jurisdiction over the heirs of Hattie, the legatee of the remaining one-sixth interest in the decedent’s estate, is not required pursuant to SCPA §712, and thus jurisdiction must be deemed complete. Indeed, counsel extrapolates a finding that jurisdiction is complete from the Appellate Division’s failure to direct service of the Order to Show Cause on any parties other than Menfus and Calvin. Counsel asserts that this court’s determination, upon review of the petition as directed to be calendared, to exercise its discretion to require service on all interested parties, including at a minimum the heirs of Hattie, would be neither “fitting” nor “proper.”In addition, counsel argues that the petition meets the requirements of “substantial compliance” with the provisions of SCPA §304 which govern the contents of a petition properly before this court. Counsel argues that the failure to identify the names and addresses of Hattie’s distributees must be laid at the feet of Menfus, who he asserts has refused to cooperate in fulfilling his purported “duty” to provide that information to RMX. Thus, counsel asserts that the court must direct Menfus to “track down and clearly set forth” the identity of Hattie’s distributees.Both Menfus and his father Emory, Hattie’s son, filed opposition to the instant motion. Emory simply asserts that while he consents to the removal of Calvin as co-administrator, he does not consent to the removal of Menfus. He asserts that any principal of RMX appointed as fiduciary of the decedent’s estate would not have his best interests at heart.In his opposition, Menfus again asserts that RMX lacks standing to bring the instant petition, and further that RMX has obtained its interests in the decedent’s estate “from known and unknown persons of interest, without the binding signature of [Menfus].” He also repeats his assertion that the petition is barred by the statute of limitations, and appears, somewhat opaquely, to assert that he and Calvin had an agreement as to the administration of the estate which now binds RMX. Menfus also appears to dispute the validity of the assignments and quitclaim deeds executed by the purported heirs of Minnie and Rufus. He asserts that RMX has acted in a predatory manner to secure its five-sixths interest in the Georgia real properties and decedent’s estate, and denies RMX’s claims of urgency in completing administration of the decedent’s estate, stating, in essence, that RMX is in a situation of its own making.On January 29, 2019, the return date of the instant motion, the court marked the motion submitted for its decision. Later on that date, RMX presented for filing two documents, each of which is denominated an “Amended Verified Petition in Support of Removal of Fiduciaries, Etc.” One of the “amended petitions” is proffered by RMX as “co-petitioner,” but does not specifically amend the instant petition to identify a co-petitioner. In addition, RMX’s amended petition identifies the parties interested in the instant proceeding to include Menfus, together with the issue of Hattie, namely Emory, Ann Housworth and Greg Housworth.³ RMX again argues in this document that service on the distributees of Hattie is not required, and sets forth at length its “due diligence” in support of its determination of the identities and whereabouts of Hattie’s distributees.The second “amended petition” is proffered by Calvin as “co-petitioner.” In this document, Calvin asserts that he now joins RMX in seeking revocation of Menfus’ letters. Calvin asserts that he and Menfus have not completed administration of the decedent’s estate, and that Menfus has been the “active figure” in controlling the course of action. He asserts that he is an heir of Minnie, who died in 2015 and for whom a personal representative has never been appointed.⁴DiscussionPursuant to the provisions of SCPA §712, process on a petition praying for a decree suspending or revoking letters must, if entertained, be issued to the fiduciary against whom the relief is sought, “and to such other persons as the court may direct.” RMX argues strenuously that service on any party other than the fiduciary is not required, and that this court’s exercise of its discretion to direct service on all parties interested herein is unwarranted. RMX stated its desire to spare the court the “embarrassment” of appearing to “overrule” the Appellate Division — this concern is disingenuous. The order issued by the Appellate Division makes no mention of the jurisdictional status of the instant proceeding. To construe the Appellate Division’s order as a determination that the petition was in proper form and identified all necessary parties, and that jurisdiction had been obtained over all necessary parties, is a misinterpretation. Clearly the Appellate Division’s order was limited to its direction that this court accept for filing and calendar the instant petition, and was not a determination of any other issue relating to the form, substance or merit of the petition.In proceedings to revoke or suspend letters where as a related relief, the appointment of a successor fiduciary is requested, the court may exercise its discretion specifically granted by SCPA §712 and direct service on all parties interested in the decedent’s estate. The court must be assured that jurisdiction is obtained over all parties as it deems necessary. In the instant matter, where all parties reside, and the assets of the decedent’s estate are located, outside the State of New York, the court believes that the best interests of the estate and its beneficiaries are served by ensuring notice to all persons who are entitled to distribution. The court notes in particular that the partition proceeding commenced by RMX in Georgia,⁵ the location of the real properties, was dismissed for, inter alia, failure to follow the special master’s directive to submit a pleading in proper form for a proceeding to determine the heirs of the decedent. Accordingly, the instant motion to dismiss the objections of Menfus is denied, without prejudice to renewal upon completion of service upon all interested parties as directed herein.In addition, the request by RMX for a court order directing Menfus to file and serve a list identifying the names and whereabouts of the distributees of Hattie is denied. It is the burden of a petitioner to file and serve a petition in proper form, with complete information regarding necessary parties and obtain jurisdiction of same.Finally, the court notes that two documents, purporting to be “amended verified petitions,” were filed by RMX and Calvin following submission of the instant motion and are not in proper form. Co-petitioners seeking revocation and appointment should not submit separate petitions which request identical relief. An amended petition must contain all information required by the SCPA, including the identities of the petitioner or co-petitioners, the names and addresses of all interested persons, and whether any such person is under a disability.⁶ In addition, an amended pleading shall not contain a lengthy exposition regarding the parties’ efforts to determine the identities and whereabouts of interested persons. Rather, this information is properly set forth, where necessary, in a separate application with affidavits of due diligence prepared in support of securing jurisdiction through alternate means of service of process.Accordingly, the documents denominated as “amended petitions” are returned to RMX and Calvin Hill as not being in proper form.This constitutes the decision and order of the court.The Clerk of the Court is directed to mail a copy to all parties appearing herein.Date: February 20, 2019Brooklyn, New York