Ford v. Moore

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MURPHY
• Citation: Ford v. Moore, 79 A.D.2d 403, 436 N.Y.S.2d 882 (N.Y. App. Div. 1981)
• Decision Date: 19 March 1981
• Parties: Probate Proceeding, Will of Thomas E. FORD, deceased, Anne W. Ford, as Executrix, Petitioner-Appellant, v. Marian MOORE, as Guardian of Naneen Evans Ford, Infant Respondent and Sheldon D. Camhy as Guardian ad Litem for Naneen Evans Ford, Infant Respondent, Respondents-Respondents.

Page 882

436 N.Y.S.2d 882

79 A.D.2d 403

Probate Proceeding, Will of Thomas E. FORD, deceased, Anne W. Ford, as Executrix, Petitioner-Appellant, v. Marian MOORE, as Guardian of Naneen Evans Ford, Infant Respondent and Sheldon D. Camhy as Guardian ad Litem for Naneen Evans Ford, Infant Respondent, Respondents-Respondents.

Supreme Court, Appellate Division, First Department.

March 19, 1981.

Gerard T. Shevlin, New York City, of counsel (Lunney & Crocco, New York City, attorneys), for petitioner-appellant.

Sheldon D. Camhy, New York City, of counsel (Adam B. Gilbert, New York City, with him on brief; Shea & Gould, New York City, attorneys), for respondents-respondents.

Before MURPHY, P. J., and KUPFERMAN, ROSS and CARRO, JJ.

MURPHY, Presiding Justice:

Thomas E. Ford died on June 3, 1979. He left an estate with an estimated value between $2,000,000 and $3,000,000. In a will dated December 22, 1978, the decedent left his entire residuary estate to Anne W. French, then his fiancee, and he named her as the executrix. On April 20, 1979, French became the decedent's second wife. Marian Moore, the decedent's first wife, and Naneen Evans Ford, the sole child of the first marriage, were not mentioned in that will.

Anne W. Ford (the proponent) petitioned to have the will, dated December 22, 1978, admitted to probate. On August 29, 1979, the return date of the citation, the firm of Shea and Gould appeared for Moore, the guardian of infant Naneen's property. The Shea firm objected to the probate of the will in behalf of Naneen (the objectant) because (a) the decedent was suffering from advanced chronic alcoholism on December 22, 1978 and (b) the will was induced by the undue influence of the proponent. Moore herself did not object to the probate of the will since she had renounced all rights to the estate in a prior separation agreement.

On that same date, the Surrogate, on his own initiative, appointed Ninette S. Bordoff as the guardian ad litem for Naneen (SCPA § 403 subd. 2). At the time of her appointment, Bordoff was acting as a "voluntary law assistant" in the Surrogate's Court. Bordoff duly filed her appearance and consent to act.

On November 2, 1979, Bordoff filed an eighteen page report in which she recommended to the Surrogate that the will not be probated at that time. Bordoff asked that the Surrogate grant her $2,500 to $5,000 so that a professional investigator could complete the investigation. Upon its face, the report appears to be thorough and fair. While the report notes that the decedent seemingly drank himself to death, it stresses that the proponent encouraged his rehabilitation after they had met at Alcoholics Anonymous. The report also emphasizes that Edward A. Reilly, the draftsman of the subject will, did indicate that the decedent may have become disenchanted with the objectant before this third will was drafted. Bordoff further stressed that the objectant was the income beneficiary and contingent remainderman of two trusts approximating $300,000 to $400,000 each.

In this background, Bordoff sought funds to interview the decedent's psychiatrists, to peruse his medical records and otherwise to develop a profile as to his personality and motivation. In one of her concluding paragraphs, Bordoff succinctly stated her position to the Surrogate:

"... While the known facts and circumstances prevent me at this time from recommending that the propounded will be admitted to probate, they do not, however, permit me to substantially join Messrs. Shea Gould Climenko & Casey in filing objections to probate in order to protect the best interests of my ward...."

On or about November 29, 1978, Sheldon D. Camhy of the Shea firm, on behalf of the objectant, mailed petitions to the guardian ad litem and to the proponent's law firm. In those petitions, the objectant sought the removal of Bordoff and the appointment of Sheldon D. Camhy as her replacement. Parenthetically, it should be observed that Camhy had previously been acting on behalf of the guardian, Marian Moore. In a supporting affidavit, Camhy advanced the reason why Bordoff should be replaced:

"After we had been retained, it was called to my attention that Ms. Bordoff was a volunteer law assistant to this Court. It also became apparent, after the service of a motion to strike virtually all the interrogatories propounded jointly by my firm and Ms. Bordoff, that this matter might involve lengthy and time-consuming litigation burdensome to Ms. Bordoff given her other duties, and that it might be more appropriate if Naneen's guardian ad litem were not associated with this Court. Under all circumstances, Naneen Evans Ford and my client, Mrs. Moore, thought it appropriate that I be nominated as guardian ad litem in the place of Ms. Bordoff, and requested me to assume such responsibilities."

On November 30, 1979, the Surrogate signed the order substituting Camhy as the successor guardian ad litem. Neither Bordoff nor the proponent's law firm had ever received the petition on the date the order was signed. In a motion returnable January 29, 1980, Camhy sought an order permitting the expenditure of $5,000 from estate funds to complete the investigation. The proponent cross-moved to vacate the order, entered November 30, 1979, appointing the successor guardian ad litem. The Surrogate denied the motion in chief on the ground that no precedent permitted him to allocate estate funds for such an investigation. This portion of the order is not contested upon appeal. The cross motion was denied on the ground that the proponent had no standing to object since her interests were totally adverse to those of the infant. This appeal is concerned solely with the denial of the cross motion.

The Surrogate's Court Procedure Act does not provide for the procedure to be followed or the criterion to be applied in removing a guardian ad litem. Nonetheless, implied in a Surrogate's power of...