Estate of Barrie, Matter of

• Decision Date: 22 January 1987
• Citation: 511 N.Y.S.2d 524,134 Misc.2d 440
• Parties: In the Matter of the ESTATE OF Lillian A. BARRIE, Deceased. Surrogate's Court, Nassau County
• Court: New York Surrogate Court

Page 524

511 N.Y.S.2d 524

134 Misc.2d 440

In the Matter of the ESTATE OF Lillian A. BARRIE, Deceased.

Surrogate's Court, Nassau County.

Jan. 22, 1987.

Douglas S. MacKay, Douglaston, for petitioner.

Russo & Russo, North Bellmore, for respondent.

C. RAYMOND RADIGAN, Judge.

In this discovery proceeding (SCPA 2103), respondent's motion for dismissal is based on the allegation that all the information relating to his ownership of the real property in Belle Harbor was previously furnished to the former attorney for the estate. The gist of respondent's claim is that the deed to the property was given to him by the decedent during her lifetime as a gift.

According to the respondent, on August 12, 1977, his mother delivered to him the deed to a residence known as 241 Beach 130th Street, Belle Harbor, New York, which he had been occupying. The deed, however, was not recorded until February 25, 1981, and the respondent, as a notary public, took his mother's acknowledgement of the deed. The decedent died over five years later on April 13, 1986.

Petitioner asserts the acknowledgement of the deed is a nullity because taken by a person interested in the conveyance as a grantee (RPAPL sec 301[2] ). Petitioner additionally contends the deed is not entitled to any presumption of due execution, and that this proceeding is necessary to examine into the circumstances surrounding the delivery and execution of the deed.

The taking of an acknowledgement to a deed upon the oath of a person interested in the conveyance constitutes a violation of subdivision 2 of section 301 of the Real Property Actions and Proceedings Law. The consequences which the statute attaches to such conduct is the exclusion of the conveyance from being received in evidence until its execution is established by other competent proof (RPAPL sec. 301[2]; Jaffe v. 717-19 Southern Boulevard, Inc., 24 A.D.2d 440, 260 N.Y.S.2d 863). Since the validity of the deed is dependent upon proof of all the circumstances under which the instrument was executed (cf. Jaffe v. 717-19 Southern Boulevard, supra ), the petition must be deemed to state a viable cause and be free from dismissal as a matter of law unless it is not entertainable. The real issue that has not been raised is whether a proceeding under SCPA 2103 may be entertained to recover real property.

The question is a recurring one. The early cases involved an interpretation of the provisions of the various statutes that preceded section 2103 of the Surrogate's Court Procedure Act. These cases (See e.g. Matter of Tuitt, 17 Misc.2d 915, 188 N.Y.S.2d 117; Matter of Pucci, 14 Misc.2d 75, 179 N.Y.S.2d 43; Matter of Cofer, 121 Misc. 292, 200 N.Y.S. 906) concluded the statute--which spoke in unqualified terms of the recovery of "money or other personal property"--meant what it said, and foreclosed its use to entertain a petition to recover or determine title to real property. The language of the statute, said the Court of Appeals, discloses that: "[I]t was not the intention of the Legislature that all estate claims were to be adjusted by way of a discovery proceeding" (Matter of Trevor, 309 N.Y. 389, 392, 131 N.E.2d 561). Consequently, the Surrogate's Court lacked specific authority to adjudicate ownership of real property either in a discovery proceeding or any independent proceeding (See Matter of Sturmer, 277 App.Div. 503, 510, 101 N.Y.S.2d 25 revd. o/grds, 303 N.Y. 98, 100 N.E.2d 155) brought for that purpose (Matter of Moore, 10 Misc.2d 82, 168 N.Y.S.2d 992). Its power to determine title to realty was limited to those instances where such issue arose collaterally or incidentally in the context of another proceeding (Matter of Poth, 155 Misc. 116, 279 N.Y.S. 95). Under those circumstances, the court, in order to do full justice between the parties, could hear and determine all questions, legal and equitable (Matter of Rungo, 74 Misc.2d 239, 342 N.Y.S.2d 929; Matter of Hall, 54 Misc.2d 923, 283 N.Y.S.2d 540).

Recognition must be taken of the fact that jurisdiction of the Surrogate's Court was restricted to that conferred by the Legislature until 1962 (See Matter of Piccione, 57 N.Y.2d 278, 287, 456 N.Y.S.2d 669, 442 N.E.2d 1180). In that year, the State Constitution was amended to provide "The surrogate's court shall have jurisdiction over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto ..." ( N.Y. Const. Art. VI sec. 12[d] ).

Under this broad constitutional mandate, the need for specific statutory authorization to entertain a particular proceeding involving the affairs of a decedent or the administration of an estate no longer exists (Matter of Piccione, supra at 288, 456 N.Y.S.2d 669, 442 N.E.2d 1180). Today the emphasis has shifted, and it must appear, if the surrogate is to decline jurisdiction, that the matter in controversy...