| Matter of Mink |
| 2012 NY Slip Op 00149 [91 AD3d 1061] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Estella May Mink, Also Known asEstella M. Mink, Deceased. David Schramm, as Administrator of the Estate of Estella MayMink, Also Known as Estella M. Mink, Deceased, Appellant; Walter J. DeWitt, as Administratorof the Estate of Sharon L. Cromie, Deceased, Respondent, et al.,Respondent. |
—[*1] David L. Gruenberg, Troy, for Walter J. DeWitt, respondent.
Egan Jr., J. Appeals (1) from an order of the Surrogate's Court of Rensselaer County(Hummel, S.), entered December 2, 2009, which, [*2]amongother things, directed petitioner to make certain reimbursements to decedent's estate, and (2) froman order of said court, entered March 25, 2010, which, among other things, denied petitioner'smotion for reconsideration.
Estella May Mink (hereinafter decedent) died in 2005 in Rensselaer County and wassurvived by four children: petitioner, Harold Schramm, Sharon L. Cromie and Darlene Carter.After Cromie, whom decedent had appointed as her executor, died and Carter, whom decedenthad nominated as her alternate executor, declined to so serve, petitioner—a resident ofAlabama—was appointed as the administrator c.t.a. of decedent's estate. Cromie diedshortly after decedent, and Carter died approximately two years later.
In January 2009, respondent Walter J. DeWitt (hereinafter respondent), Cromie's son and theadministrator of her estate, successfully sought to compel an accounting, and petitioner thereaftercommenced this proceeding seeking a judicial settlement of his accounts. Respondent filedvarious objections thereto contesting, among other things, certain travel expenses andcommission fees. Petitioner then filed an amended accounting and additional objectionsfollowed.[FN1]A hearing ensued and Surrogate's Court, by order entered December 2, 2009, directed petitionerto reimburse the estate in the amount of $16,129.74. Thereafter, by order entered March 25,2010, Surrogate's Court denied petitioner's subsequent motion for, among other things,reconsideration, prompting these appeals.[FN2]
We affirm. "[T]he long established view is that a fiduciary voluntarily accepts anappointment with an awareness of the general obligations to be performed, and the direct andindirect costs of performing tasks to fulfill such obligations are covered by the [statutory]commission" (Perez v Rodino, 184 Misc 2d 855, 858 [2000]). Hence, a fiduciarynormally [*3]should not agree to serve "where the distancebetween his residence and this jurisdiction is so great that he cannot properly discharge hisfiduciary responsibility without incurring expenses for travel that are in a greater sum than hewishes to absorb as a charge against his statutory commissions" (Matter of Picker, 103Misc 2d 594, 596 [1980]). Nevertheless, "the expenses incurred by a fiduciary as an incident ofnecessary travel in the discharge of his fiduciary duties may be paid from the estate to the extentthey are reasonable and necessary" (id. at 595; see SCPA 2307 [1]).
Here, petitioner purportedly incurred $14,460.13 in travel expenses for which he reimbursedhimself from the assets of decedent's estate. Inasmuch as Cromie's death and Carter'sunwillingness to serve as an executor in accordance with decedent's wishes appears to havenecessitated petitioner's appointment, we agree with Surrogate's Court that petitioner's travelexpenses were both necessary for the orderly administration of decedent's estate and anticipatedby the other beneficiaries thereof. We also agree, however, that the sum claimed by petitioner,which represents more than 14% of the total estate assets, was not reasonable under thecircumstances—particularly in view of the fact that petitioner accepted his statutorycommission. Hence, Surrogate's Court properly reduced the travel expenses claimed by petitionerto $8,460.13 and ordered him to reimburse the estate for the difference.
We reach a similar conclusion regarding the $3,193.49 disbursement that petitioner madefrom estate assets to Schramm, a resident of Virginia, for travel expenses that Schramm allegedlyincurred traveling to New York to assist petitioner with the disposal of decedent's personalproperty. Assuming, without deciding, that reimbursing a nonfiduciary for travel expenses indeedis permissible, we cannot say that Surrogate's Court erred in disallowing such reimbursementhere. By all accounts, decedent's personal property had little or no monetary value. Accordingly,while Schramm's assistance in this regard may have personally benefitted petitioner byexpediting the process of sorting and disposing of decedent's personal effects, we fail to see howSchramm's contribution substantially benefitted decedent's estate (see Matter of Lurje, 64Misc 2d 569, 573 [1970]).
Finally, petitioner contends that Surrogate's Court erred in directing him to reimburse theestate $3,625—allegedly representing a cash payment of counsel fees—as well as$3,311.25 in excess statutory commissions, the latter of which petitioner asserts he already hasrepaid. As the administrator of decedent's estate, it was incumbent upon petitioner to maintain"clear and accurate records," absent which "all presumptions . . . and all doubts areto be resolved adversely to [him]" (Matter of Camarda, 63 AD2d 837, 837 [1978]).Although petitioner provided—in the context of his posttrial motion—billingrecords suggesting that counsel for the estate did receive a payment in the amount of $3,625(even though such payment was not reflected on the initial accounting filed in this matter),petitioner neither tendered any such proof at trial nor offered any explanation for failing to do so.More to the point, petitioner neglected to establish the source of the funds utilized to make thepayment in the first instance. Indeed, all that petitioner's testimony on this point doesestablish—with any degree of clarity—is that he did [*4]not disburse such funds from estate assets in his fiduciary capacity.We reach a similar conclusion regarding petitioner's claim that he repaid the estate in full for theexcess commissions that he received. Although petitioner testified that he repaid $8,542.16 inexcess commissions, the original accounting only reflects a repayment in the amount of $5,400,and petitioner did not otherwise document or substantiate the additional sum he purportedlyrepaid. In light of petitioner's failure to appropriately document these transactions, we cannot saythat Surrogate's Court erred in ordering petitioner to reimburse decedent's estate accordingly.
As for petitioner's subsequent motion for reconsideration and leave to file an amendedaccounting, it is apparent from a review of the record that petitioner's motion, insofar as it soughtreconsideration, actually was one to reargue—the denial of which is not appealable (see Matter of Biasutto v Biasutto, 75AD3d 671, 672 [2010]; Suarez v State of New York, 193 AD2d 1037, 1038 [1993]).Notably, petitioner "failed to present any new facts or change in the law that would require adifferent determination" (Marquis vWashington, 85 AD3d 1338, 1338 [2011]); rather, petitioner simply attempted topersuade Surrogate's Court to grant him the substantive relief that the court denied him in thefirst instance. As to the balance of petitioner's motion, we conclude that Surrogate's Courtproperly denied his request for leave to file an amended accounting.
Spain, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote 1: The objections filed by LanceCarter—Carter's son—to both the original and the amended accounting subsequentlywere dismissed by Surrogate's Court, and he has not filed a brief on appeal.
Footnote 2: Although respondent asserts thatpetitioner's appeal from the December 2009 order is untimely because the underlying notice ofappeal was not filed until April 2010, the record does not contain any proof that petitioneractually was served with a copy of the December 2009 order and written notice of its entry(see SCPA 2701 [1]; CPLR 5513 [a]). Accordingly, if anything, petitioner's appeal fromthat order appears to be premature (see Ahlers v Ahlers, 226 AD2d 1134 [1996]).Nonetheless, we will treat petitioner's notice of appeal as valid and address his claims on themerits (cf. Davis v Wyeth Pharms.,Inc., 86 AD3d 907, 908 n 2 [2011]).