| Matter of Curtis |
| 2011 NY Slip Op 02773 [83 AD3d 1182] |
| April 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Martha I. Curtis, Deceased. PatriciaErickson, Appellant; Gail Akins, as Coexecutor of the Estate of Martha Curtis, Deceased,Respondent. |
—[*1] Girvin & Ferlazzo, P.C., Albany (Lauren A. Atwood of counsel), for respondent.
Mercure, J.P. Appeals (1) from an order of the Surrogate's Court of Rensselaer County(Hummel, S.), entered February 25, 2010, which, among other things, partially grantedpetitioner's application, in a proceeding pursuant to SCPA 2105, to, among other things, compeldelivery of certain property or the proceeds thereof, and (2) from a decree of said court, enteredMarch 22, 2010, which, among other things, judicially settled the final accounting of decedent'sestate.
The parties are decedent's daughters and coexecutors of her estate. In 2002, after a series ofstrokes left decedent physically debilitated, she moved in with respondent and respondent'shusband, Raymond Akins, and they cared for her until her death in 2004. During that period,respondent also acted as decedent's attorney-in-fact pursuant to a power of attorney executed bydecedent.[*2]
Decedent died testate,[FN*]and letters testamentary were issued to the parties. Petitioner commenced this proceeding seekingboth to compel respondent to deliver the proceeds of certain of decedent's assets and anaccounting. After respondent submitted an accounting in her capacities as attorney-in-fact andcoexecutor, petitioner filed objections. At the ensuing bench trial, petitioner pursued objectionsonly to the accounting submitted by respondent in her capacity as attorney-in-fact, alleging,among other things, self-dealing and violations of fiduciary obligations. Surrogate's Courtultimately determined that respondent's actions were taken with the express consent of decedent,whom the court found to have been competent to make such decisions. The court modified theaccounting by directing respondent to reimburse the estate the stipulated sum of $1,268.73, andotherwise approved the accounting. The court thereafter entered a decree judicially settling thefinal account.
On this appeal from the order and the decree, petitioner generally takes issue with Surrogate'sCourt's conclusions that decedent's mental capacity was not diminished, and that decedentdirected and actively participated in the management of her assets. Specifically, petitioner claimsthat respondent failed to prove that decedent agreed to pay Akins for services performed inconnection with the sale of certain real property, or to pay respondent and Akins $2,500 permonth for home care. Where parties to an alleged agreement are related, a presumption arises"that the services were rendered in consideration of love and affection, without expectation ofpayment, only to be rebutted by clear and convincing evidence that there was anagreement—whether express, implied in fact, or implied in law" (Matter of Barr,252 AD2d 875, 877 [1998] [internal quotation marks and citations omitted]; see generallyMatter of Naumoff, 301 AD2d 802, 804-805 [2003], lv dismissed 100 NY2d 534[2003]). Here, the court credited Akins' testimony that decedent expressly agreed to pay for hisservices in connection with preparing her real property for sale, and credited the testimony ofboth respondent and Akins that decedent expressly agreed to pay $2,500 per month for homecare.
Notably, while this Court has "broad authority in a nonjury trial to independently weigh theevidence and render a determination warranted by the record" (Matter of Giles, 74 AD3d 1499,1503 [2010]), we will defer to the trial court's assessment of credibility issues "given [its] abilityto observe the witnesses' demeanor during testimony" (id. at 1504; see Matter of Breistol, 64 AD3d1122, 1122-1123 [2009]). According such deference here, and noting that petitioner putforth no evidence that would tend to contradict the testimony at issue, we find that respondentrebutted the presumption by clear and convincing evidence.
Petitioner further contends that the transfer of an investment account to respondent andrespondent's inclusion as a mortgagee upon the sale of decedent's mobile home did not constitutevalid gifts by decedent. " '[A]bsent a specific provision in the power of attorney documentauthorizing gifts, an attorney-in-fact, in exercising his or her fiduciary responsibilities to theprincipal, may not make a gift to himself [or herself] or a third party of the money or propertywhich is the subject of the agency relationship' " (Matter of Masterson, 46 AD3d 1091, 1092 [2007], quoting Marszal v Anderson, 9 AD3d 711,712-713 [2004]; see Matter of Naumoff, 301 AD2d at 803). " 'Such a gift carries with it apresumption of impropriety and self-dealing, a presumption which can be overcome only withthe clearest showing of intent on the part of the [*3]principal tomake the gift' " (Matter of Masterson, 46 AD3d at 1092, quoting Semmler vNaples, 166 AD2d 751, 752 [1990], appeal dismissed 77 NY2d 936 [1991]; seeMatter of Naumoff, 301 AD2d at 803, 805). Here, as Surrogate's Court noted, the power ofattorney specifically authorized respondent to make gifts to decedent's children, which wouldinclude respondent. Furthermore, the court credited respondent's testimony that the investmentaccount was transferred in decedent's presence, and that decedent was also present at the closingwhen her mobile home was sold and respondent was named as a comortgagee. Under thesecircumstances, we agree with Surrogate's Court that respondent established that the challengedactions were taken with decedent's knowledge and at her direction.
Petitioner's remaining contentions are either unpreserved or, upon consideration, have beenfound to be without merit.
Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the order and decree are affirmed,with costs.
Footnote *: The terms of decedent's willdistributed her estate among the parties and the two surviving children of decedent's predeceaseddaughter.