Matter of Huggins 2023 NY Slip Op 34620(U) December 29, 2023 Surrogate's Court, Bronx County Docket Number: File No. 2018-2367/B and C Judge: Nelida Malave-Gonzalez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. SURROGATE'S COURT, BRONX COUNTY
December 29 , 2023
ESTATE OF WALTER ISSAC HUGGINS, Deceased File No.: 2018-2367/B and C
Currently pending in this estate is a proceeding commenced
by one of the decedent's sons (Emmanuel) to be appointed administrator
(File No. 2018-2367/B) and a cross-petition (File No. 2018-2367/C) filed
by another son (Walter Jr.), also seeking appointment as administrator. In
addition, Walter Jr. filed objections to Emmanuel's application, despite
having initially signed a waiver and consent. Emmanuel now moves to
strike Water Jr.'s cross-petition as well as his objections arguing there is
no basis for the cross petition and given the filed waiver and consent, the
objections should not have been taken in. Walter cross-moves seeking to
set aside his previously executed and filed waiver and consent to
Emmanuel's application so that he may pursue his objections to that
petition and his cross-petition seeking to be appointed administrator.
The decedent died on October 2, 2018 survived by a spouse
and four children. A decree appointing the spouse as administrator was
entered on March 30, 2019 directing that letters would issue to her upon
her filing a bond in the penal sum of $200,000. No bond was filed and
letters never issued to the spouse.
Emmanuel's petition was filed on September 10, 2020 and
[* 1] 2
listed the spouse as having post-deceased. It also included documents
indicating that Emmanuel had been appointed personal representative of
the spouse's estate in South Carolina. He also filed waivers and consents
from all of the decedent's other children, including Walter Jr. who signed
his waiver and consent on July 8, 2020 which was filed with the court on
September 10, 2020. However, there appear to have been additional
clerical requirements for the issuance of a decree to Emmanuel that may
not have been conveyed to his attorney.
On December 1, 2021 Walter Jr., proceeding pro se, filed
objections to Emmanuel's petition despite his filed waiver and consent to
Emmanuel's application. However, the proper procedural remedy for
Walter Jr. was to seek withdrawal of the filed waiver and consent and then
leave to file objections. Notwithstanding, Walter Jr. retained counsel who
filed a cross-petition on September 16, 2022 and attempted to file
objections in proper form that were not accepted for filing at that time.
Walter's initial cross petition erroneously depicted certain additional
individuals as distributees who were not named in Emmanuel's petition,
causing delays in processing both applications. Those individuals were
ultimately determined to be distributees of the post-deceased spouse from
a prior marriage and not distributees of this estate.
Both sets of objections filed by Walter Jr. essentially allege
[* 2] 3
that Emmanuel is not qualified to serve as administrator of this estate as a
result of the long delay in attempting to secure his appointment as
administrator. He avers that the alleged deficiencies in Emmanuel's filings
and the long delays in correcting those deficiencies resulted in the estate's
languishing with no fiduciary. He further alleges that, as a result of this
delay, assets of the estate may have been lost, misplaced or
misappropriated and that Emmanuel has failed to secure additional estate
property located outside of New York. Accordingly, he alleges Emmanuel
is not qualified to serve as a fiduciary and Walter, Jr. should be appointed.
Thereafter, the parties unsuccessfully engaged in mediation, and the
estate remains unadministered.
In support of his motion Emmanuel argues that Walter Jr.
signed a waiver and consent to his application and as he had not
previously moved to set aside that waiver and consent his initial objections
were improperly filed. Emmanuel further notes that it was not until the
cross motion was filed that there was a formal request to withdraw
Emmanuel's waiver and consent to his proceeding. In order to set aside
the waiver and consent Walter Jr. has to allege proper grounds to do so.
Although a decree has not yet entered, a waiver and consent can be
deemed to be a stipulation which a court will only set it aside if the moving
party can demonstrate good cause, i.e. fraud, collusion, mistake or some
other similar ground, and Walter Jr. has not alleged any of these grounds.
[* 3] 4
Emmanuel also avers that a party seeking to set aside a stipulation must
demonstrate a reasonable probability of success. Walter Jr. has failed to
show that he will succeed in asserting his objections and the only reason
he furnishes for seeking to withdraw his consent is his allegation that
Emmanuel is not qualified to serve as a result of the delay in being
appointed fiduciary.
In opposition to the motion and in support of his cross-
motion Walter Jr. asserts the same allegations from his objections arguing
that Emmanuel has failed to timely follow through with his petition and as
a result of this failure the estate has been mishandled. Walter Jr. argues
three years have passed since the filing of the original petition in 2020 and
Emmanuel has not been appointed fiduciary to date, demonstrating he is
not qualified to serve as fiduciary pursuant to SCPA 707(1 )(d).
In opposition to the cross-motion Emmanuel notes that it is
Walter Jr.'s burden to prove grounds for setting aside his waiver and
consent and he has not met that burden. Noting that Walter Jr. has not
alleged any appropriate basis to set aside his waiver nor has he shown
that he will succeed on the merits of his objection, his cross-motion should
accordingly be dismissed. Moreover, based on the previously filed waiver
and consent, the objections and cross-petition should likewise be
dismissed and Emmanuel's petition granted.
[* 4] 5
Filing a "waiver and consent" serves as a notice of
appearance and serves to confer jurisdiction and waiver of the issuance of
citation thereby functioning as a consent to the relief sought in the
proceeding (SCPA 401 [4]; Estate of Frutiger, 29 NY2d 143 [19711). "In
this context, and absent any demonstrable consideration or other
contractual element, the consent is clearly and essentially a stipulation
made by a party to the proceeding; and it must be treated in accordance
with the rules governing stipulations in actions generally" (see Estate of
Frutiger, 29 NY2d at 148 [1971 ]). Courts reviewing requests to withdraw a
waiver and consent use a different standard based on whether a decree
has entered (see Matter of Frutiger, 29 NY2d 143, 149 [19711). Granting
leave to withdraw a filed waiver and consent is discretionary with the
Court, and upon a showing of good cause is available in instances of
fraud, collusion, overreaching, material misrepresentations, misconduct by
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Matter of Huggins 2023 NY Slip Op 34620(U) December 29, 2023 Surrogate's Court, Bronx County Docket Number: File No. 2018-2367/B and C Judge: Nelida Malave-Gonzalez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. SURROGATE'S COURT, BRONX COUNTY
December 29 , 2023
ESTATE OF WALTER ISSAC HUGGINS, Deceased File No.: 2018-2367/B and C
Currently pending in this estate is a proceeding commenced
by one of the decedent's sons (Emmanuel) to be appointed administrator
(File No. 2018-2367/B) and a cross-petition (File No. 2018-2367/C) filed
by another son (Walter Jr.), also seeking appointment as administrator. In
addition, Walter Jr. filed objections to Emmanuel's application, despite
having initially signed a waiver and consent. Emmanuel now moves to
strike Water Jr.'s cross-petition as well as his objections arguing there is
no basis for the cross petition and given the filed waiver and consent, the
objections should not have been taken in. Walter cross-moves seeking to
set aside his previously executed and filed waiver and consent to
Emmanuel's application so that he may pursue his objections to that
petition and his cross-petition seeking to be appointed administrator.
The decedent died on October 2, 2018 survived by a spouse
and four children. A decree appointing the spouse as administrator was
entered on March 30, 2019 directing that letters would issue to her upon
her filing a bond in the penal sum of $200,000. No bond was filed and
letters never issued to the spouse.
Emmanuel's petition was filed on September 10, 2020 and
[* 1] 2
listed the spouse as having post-deceased. It also included documents
indicating that Emmanuel had been appointed personal representative of
the spouse's estate in South Carolina. He also filed waivers and consents
from all of the decedent's other children, including Walter Jr. who signed
his waiver and consent on July 8, 2020 which was filed with the court on
September 10, 2020. However, there appear to have been additional
clerical requirements for the issuance of a decree to Emmanuel that may
not have been conveyed to his attorney.
On December 1, 2021 Walter Jr., proceeding pro se, filed
objections to Emmanuel's petition despite his filed waiver and consent to
Emmanuel's application. However, the proper procedural remedy for
Walter Jr. was to seek withdrawal of the filed waiver and consent and then
leave to file objections. Notwithstanding, Walter Jr. retained counsel who
filed a cross-petition on September 16, 2022 and attempted to file
objections in proper form that were not accepted for filing at that time.
Walter's initial cross petition erroneously depicted certain additional
individuals as distributees who were not named in Emmanuel's petition,
causing delays in processing both applications. Those individuals were
ultimately determined to be distributees of the post-deceased spouse from
a prior marriage and not distributees of this estate.
Both sets of objections filed by Walter Jr. essentially allege
[* 2] 3
that Emmanuel is not qualified to serve as administrator of this estate as a
result of the long delay in attempting to secure his appointment as
administrator. He avers that the alleged deficiencies in Emmanuel's filings
and the long delays in correcting those deficiencies resulted in the estate's
languishing with no fiduciary. He further alleges that, as a result of this
delay, assets of the estate may have been lost, misplaced or
misappropriated and that Emmanuel has failed to secure additional estate
property located outside of New York. Accordingly, he alleges Emmanuel
is not qualified to serve as a fiduciary and Walter, Jr. should be appointed.
Thereafter, the parties unsuccessfully engaged in mediation, and the
estate remains unadministered.
In support of his motion Emmanuel argues that Walter Jr.
signed a waiver and consent to his application and as he had not
previously moved to set aside that waiver and consent his initial objections
were improperly filed. Emmanuel further notes that it was not until the
cross motion was filed that there was a formal request to withdraw
Emmanuel's waiver and consent to his proceeding. In order to set aside
the waiver and consent Walter Jr. has to allege proper grounds to do so.
Although a decree has not yet entered, a waiver and consent can be
deemed to be a stipulation which a court will only set it aside if the moving
party can demonstrate good cause, i.e. fraud, collusion, mistake or some
other similar ground, and Walter Jr. has not alleged any of these grounds.
[* 3] 4
Emmanuel also avers that a party seeking to set aside a stipulation must
demonstrate a reasonable probability of success. Walter Jr. has failed to
show that he will succeed in asserting his objections and the only reason
he furnishes for seeking to withdraw his consent is his allegation that
Emmanuel is not qualified to serve as a result of the delay in being
appointed fiduciary.
In opposition to the motion and in support of his cross-
motion Walter Jr. asserts the same allegations from his objections arguing
that Emmanuel has failed to timely follow through with his petition and as
a result of this failure the estate has been mishandled. Walter Jr. argues
three years have passed since the filing of the original petition in 2020 and
Emmanuel has not been appointed fiduciary to date, demonstrating he is
not qualified to serve as fiduciary pursuant to SCPA 707(1 )(d).
In opposition to the cross-motion Emmanuel notes that it is
Walter Jr.'s burden to prove grounds for setting aside his waiver and
consent and he has not met that burden. Noting that Walter Jr. has not
alleged any appropriate basis to set aside his waiver nor has he shown
that he will succeed on the merits of his objection, his cross-motion should
accordingly be dismissed. Moreover, based on the previously filed waiver
and consent, the objections and cross-petition should likewise be
dismissed and Emmanuel's petition granted.
[* 4] 5
Filing a "waiver and consent" serves as a notice of
appearance and serves to confer jurisdiction and waiver of the issuance of
citation thereby functioning as a consent to the relief sought in the
proceeding (SCPA 401 [4]; Estate of Frutiger, 29 NY2d 143 [19711). "In
this context, and absent any demonstrable consideration or other
contractual element, the consent is clearly and essentially a stipulation
made by a party to the proceeding; and it must be treated in accordance
with the rules governing stipulations in actions generally" (see Estate of
Frutiger, 29 NY2d at 148 [1971 ]). Courts reviewing requests to withdraw a
waiver and consent use a different standard based on whether a decree
has entered (see Matter of Frutiger, 29 NY2d 143, 149 [19711). Granting
leave to withdraw a filed waiver and consent is discretionary with the
Court, and upon a showing of good cause is available in instances of
fraud, collusion, overreaching, material misrepresentations, misconduct by
the respondent or newly discovered evidence (see Estate of Knapp, 220
AD3d 529 [1 st Dept 2023][citations omitted]).
At the outset, the Court notes it was error to have taken in
both the pro se objections and cross-petition filed by Walter Jr. since
jurisdiction was rendered complete upon the filing of his waiver and
consent. Emmanuel's counsel correctly notes that there should have been
a request to set aside that waiver prior to any documents in opposition to
[* 5] 6
Emmanuel's petition being filed. Notwithstanding, the Court addresses the
contentions contained in Walter Jr.'s motion.
Where, as here, the application for leave to withdraw a
waiver and consent is made prior to the entry of a decree, courts liken the
waiver and consent to a stipulation, and treat the application accordingly
(see Matter of Frutiger, 29 NY2d at 143, 149-150 [19711). Specifically, in
Frutiger, a case of first impression, the Court of Appeals stated that a
waiver and consent could be withdrawn prior to the entry of a probate
decree, even though the movant had "inadvertently, unadvisably or
improvidently" executed the waiver, provided that it "would be inequitable
to hold" him to the waiver and "all parties can be restored substantially to
their former position" (29 NY2d at 150). Nonetheless, although proof of
"good cause" may be more relaxed prior to the entry of a decree, there
must still be a demonstration of merit and a reasonable probability of
success (see Matter of Frutiger, 29 NY2d at 150; Matter of Gunz, NYLJ,
Jun. 5, 1992, at 29, col 2).
Against this backdrop, it is clear there is no basis to set
aside Walter Jr.'s filed waiver as he fails to demonstrate any of the
requisite factors, for example, fraud, duress, material misrepresentation,
overreaching, etc. Instead, the crux of his argument stems from the
grounds contained in the objections concerning revocation of letters and
[* 6] 7
petitioner's fitness in serving as fiduciary. While his allegations allege that
the petitioner has delayed the matter, it is clear that the delays are not
entirely attributable to Emmanuel's conduct but rather misdirection and
miscommunication between counsel and the court -- matters that were not
under Emmanuel's control. The allegations that Emmanuel is unfit to serve
are all related to a delay in his appointment and not to any actions taken
or not taken by Emmanuel. The only allegation that perhaps might be
concerning is that he is alleged to have misappropriated funds. However,
this is a bare allegation with no supporting evidence and can be
addressed in an appropriate accounting proceeding and further mitigated
by requiring Emmanuel to procure a bond. At this time, allowing Walter Jr.
to withdraw his waiver and consent will only further delay this estate and
possibly jeopardize the assets that he is concerned about preserving.
Accordingly, this decision constitutes the order of the court
granting Emmanuel's motion striking the filed pro se objections and the
cross-petition and denying the cross-petition in its entirety. A decree may
be settled granting letters of administration to Emmanuel upon his filing a
bond in the penal sum of$200,000.00 _ _ __
Settle decree. /1 ~
1J_. i HC-t....J. ~ - ~ - -:,----+-;• - SURROGATE
[* 7]