The Facts of the Case:
On 30 December 2006, the decedent died a resident of Nassau County leaving a last will and testament dated 13 July 2006. On 19 March 2007, the will was admitted to probate and letters issued to A and B as co-executors and co-trustees. After making some specific bequests, the decedent left her residuary estate to her four daughters, A, B, C, and D, in equal shares; and placed C’s share in a Supplemental Needs Trust under her name created pursuant to Article Fourth of the will. Under the will, the trustees were given discretion in distributing income and principal to C; that at C’s death, the remainder of the trust, if any, will pass to C’s son, CC; and D is the named successor fiduciary. The estate contains approximately $125,000.00 in personal property and three homes, which are valued in the aggregate at $1,285,000.00.
Thereafter, a New York Probate Lawyer said five miscellaneous proceedings were filed with the court in connection with the estate administration and that of the trust. On 10 December 2008, some of the issues raised were resolved in a stipulation of partial settlement entered into by all the interested parties, viz: that A and B, as co-trustees of the supplemental needs trust, would enter into a contract for the purchase of property-two which C and CC agreed to use as their long-term primary residence; that C and CC, who were residing in decedent’s real property, property-one, would vacate that property and move to property-two; and that the fiduciaries are obliged to put property-one up for sale within 90 days after respondents move out. Pursuant to the agreement, the co-executors purchased property-two and made it available to respondents as of 16 March 2009. Nonetheless, respondents refused to move out of property-one, and the agreement does not specify a date by which they are required to do so.
Consequently, a Queens Probate Lawyer said the co-executors filed a motion for eviction and asked that the court issue: a decree directing C and CC to vacate property-one; a warrant of eviction directed to the Sheriff of Suffolk County, where the property is located; and a decree surcharging the supplemental needs trust for the benefit of C for all of the costs and expenses relating to the proceeding and eviction, including attorneys’ fees, sheriff fees and expenses, and related storage expenses.
Respondents filed a verified answer and argued that since the stipulation did not include a specific date for respondents to move out, there cannot be one added thereafter. A Staten Island Probate Lawyer said a reply to the answer was then filed by petitioners and they argued that the stipulation is essentially irrelevant to the proceeding before the court, as the legal basis underlying petitioners’ order to show cause and petition is the right of the co-executors to evict respondents from an estate asset, in order that it may be liquidated. The matter was submitted for decision, but subsequently, respondents filed an answer to the reply on 6 June 2009 where they asked that: the court deny the motion for eviction; impose sanctions on petitioners for frivolous litigation; and revoke petitioners’ letters testamentary. Petitioners objected to the court’s consideration of this sur-reply on the grounds that: the court doesn’t allow sur-replies without authorization; the matter had already been submitted for decision; and respondents advised the court that they will not vacate property-one without a court order, forcing petitioners to bring the instant proceeding.
The Ruling of the Court:
The question whether petitioners are empowered, in their capacity as co-executors of the estate or as signatories to the stipulation of settlement, to evict C and CC from property-one, depends, in part, upon the nature of the interest held by C and CC in the occupied property. As a rule, when a residuary estate includes real property, and there are two or more residuary beneficiaries, the beneficial interest of each is that of a tenant in common. However, an executor has the right to possess and manage the decedent’s realty so that he may sell the property in accordance with the statutory authority with which estate fiduciaries are imbued, as well as to collect the rentals thereof, and otherwise preserve the asset and make it productive to all those with a beneficial interest therein. This right is superior to that of a beneficiary. Here, it is not C or CC individually who holds a tenancy in common in property-one, along with A, B and D. Rather, it is the co-trustees of the supplemental needs trust, viz., A and B, who are tenants in common with the other three residuary beneficiaries, A, B and D, in their individual capacities. Neither C nor CC has any direct title or interest in property-one. Thus, the removal of C and CC from property-one is warranted.
The court need not reach the question of whether the absence of a specific date in the agreement empowers C and CC to reside at property-one indefinitely since it has been established that petitioners have the right to evict C in their capacity as co-executors; and the court also need not consider any of the other issues raised in the responsive papers filed, some of which may be addressed within the context of the two ongoing accounting proceedings.
In sum, a judgment of possession and a warrant of eviction are ordered. The motion is granted to the extent of an award of possession together with a warrant of eviction; the respondents are granted a thirty (30) day stay of the execution of the warrant; the respondents are prohibited from interfering in any manner with the possession, control or management of said premises by the co-executors of the estate for the purpose of selling the premises, which the executors are authorized and empowered to do; however, insofar as petitioners seek recovery from the supplemental needs trust of all of the costs and expenses relating to the proceeding and the eviction, including attorneys’ fees, sheriff fees and expenses, and related storage expenses, that part of the application is denied.
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