In re Kirchner — 89 Misc. 717

Majority

p. 717

Matter of the Application of Sophie Kirchner for a Decree Revoking Letters of Administration Issued upon the Estate of Ann Elizabeth Gimpel to Louis Gimpel and John Henry Gimpel, as Administrators.

(Surrogate’s Court, Kings County,

March, 1915.)

Headnote

Administration — revocation of.

It is dishonesty on the part of the sons of decedent, now her administrators, to take from her for themselves and a sister to the exclusion of another sister all the property their mother had at a time when her competency was questionable and to avail themselves of her willingness to give away all she had and to so distribute it that one of her children was disregarded, and letters of administration granted to said sons will be revoked.

Application to revoke letters of administration.

Aron & Vanderveer, for petitioner.

Kiendl & Sons (Theodore Kiendl, Jr., of counsel), for respondents.

The letters of administration will be revoked.

It was dishonesty on the part of the two sons of the decedent, now the administrators, to take from their mother, for themselves and a daughter of the decedent, to the exclusion of another daughter, all the property which she had, under the circumstances established with respect to her mental weakness and dependence.

If the condition of health into which she had fallen in her old age was not enough to demonstrate her com

p. 718

píete incompetency to understand and manage her affairs, it was still dishonesty, at a time when her competency was seriously questionable, to avail themselves of her willingness to give away all that she had and to distribute it among themselves and their sister in such a way that one of her children was disregarded.

The mother’s gifts were made to three of her sons and daughters, while they had access, opportunity and incentive to profit by her improvidence. At the same time the daughter to whom she gave nothing was without opportunity to impress her needs, her claims or her desert upon the mother.

Of the children who have partaken of the decedent’s inconsiderate generosity, two have taken administration upon her estate without any assignable motive, unless it be to intrench themselves against such legal attack as their conduct during the decedent’s lifetime would naturally invite.

There will be no finding that the transfers of property made by the decedent were obtained at a time when' she was mentally incompetent or that they were induced by abuse of the dependent relation which she bore toward those who got her property. A sufficient basis of the decree of revocation will be that the transfers were made by one who was in physical and moral dependency upon those who made gain from her infirmity, and that her mental condition was such that it was dishonesty to make use of it to obtain all her property.

A further ground for the decree is that the administrators’ own interest is hostile to the safety and welfare of the estate in every substantial respect.

Beyond the fifty dollars which has been taken into the care of the administrators, upon their allegation that nothing else was left by their mother, there is no need for their remaining in office.

p. 719

The assertion and maintenance of control over an estate under these circumstances is said to be misconduct. Matter of West, 40 Hun, 291 ; affd., 111 N. Y. 687 ; Matter of Gleason, 17 Misc, Rep. 510 ; Matter of Wallace, 68 App. Div. 649 ; Matter of Stallo, 82 Misc. Rep. 135 ; reversed on grounds not material to this discussion, 209 N. Y. 567 .

The petitioner may take a decree revoking the respondents ’ letters and directing them to render and settle their accounts.

Decreed accordingly.

Cases cited

In re Stallo 82 Misc. Rep. 135 N.Y. Sur. Ct. p. 719
In re Sweeney 209 N. Y. 567 N.Y. 1913-10-29 p. 719