State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 521306 

________________________________

In the Matter of the Estate of

CHARLOTTE E. JEWETT,

Deceased.

BETH NILAN,

Respondent;

CHARLENE TEDESCO, Individually

and as Executor of the 

Estate of CHARLOTTE E.

JEWETT, Deceased,

Appellant.

(Proceeding No. 1.)

________________________________ MEMORANDUM AND ORDER

In the Matter of the Estate of

CHARLOTTE E. JEWETT,

Deceased.

CHARLENE TEDESCO, as Executor 

of the Estate of CHARLOTTE

E. JEWETT, Deceased,

Appellant;

BETH NILAN,

Respondent.

(Proceeding No. 2.)

________________________________

Calendar Date: October 18, 2016

Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.

__________

Tabner, Ryan & Keniry, LLP, Albany (Brian M. Quinn of

counsel), for appellant.
-2- 521306 

Donohue, Sabo, Varley & Huttner, LLP, Albany (Kenneth G.

Varley of counsel), for respondent.

__________

Clark, J.

Appeals (1) from an order of the Surrogate's Court of

Albany County (Maney, S.), entered May 12, 2015, which, among

other things, granted petitioner's application, in proceeding No.

1 pursuant to SCPA 2102, to, among other things, transfer certain

properties that had been devised to her by decedent's will, and

(2) from an order of said court, entered May 29, 2015, which

granted petitioner's application, in proceeding No. 1, for an

award of counsel fees.

Charlotte E. Jewett (hereinafter decedent) died testate on

January 15, 2012 and was survived by her two daughters, Charlene

Tedesco and Beth Nilan. On January 27, 2012, decedent's last

will and testament was admitted to probate and letters

testamentary were issued to Tedesco as the executor of decedent's

estate. Decedent's will specifically devised to Tedesco two

parcels of real property in the Town of Colonie, Albany County –

namely, 133B Boght Road and 135 Boght Road (hereinafter the Boght

Road properties) – and specifically devised to Nilan a

condominium in Naples, Florida, the value of decedent's bank

accounts and timeshares in Cancun, Mexico and Fort Lauderdale,

Florida. The will further provided that any residuary be split

equally between Tedesco and Nilan.

In October 2013, after Tedesco had refused to deliver to

Nilan possession of the condominium and the Mexico and Florida

timeshares, Nilan commenced proceeding No. 1 to, among other

things, compel distribution of the timeshares and the

condominium. Tedesco answered and asserted a cross claim seeking

to stay distribution of the devised property until all of the

estate's liabilities had been satisfied. Thereafter, pursuant to

court order, Tedesco commenced proceeding No. 2 for judicial

settlement of the estate and submitted a final accounting. Nilan

filed numerous objections alleging that the accounting omitted
-3- 521306 

certain property and contained various inaccuracies. 

Following a nonjury trial, Surrogate's Court, among other

things, determined that Tedesco's accounting included invalid

funeral and administration expenses and creditor claims and

omitted certain estate property and income, directed Tedesco to

deliver to Nilan executed deeds for the condominium and

timeshares, imposed upon Tedesco a surcharge in the amount of

$74,140.54 and awarded Nilan reasonable counsel fees and costs. 

Nilan subsequently submitted invoices reflecting that she had

incurred $21,946.83 in counsel fees and costs, and Surrogate's

Court directed Tedesco to pay that amount in full. Tedesco

appeals from the order judicially settling the account, as well

as the subsequent order directing payment of Nilan's counsel fees

and costs.

I. The Accounting Generally

Tedesco argues, among other things, that Surrogate's Court

erred in rejecting certain creditor claims, concluding that the

estate had income remaining and an available residue, imposing a

surcharge upon her and awarding Nilan counsel fees and costs. 

The executor of an estate is primarily charged with settling and

distributing the estate of the decedent (see Matter of Kohler,

231 NY 353, 365 [1921]; Matter of Camarda, 63 AD2d 837, 837

[1978]), and it is incumbent upon the executor to maintain "clear

and accurate accounts of the estate" (Matter of Camarda, 63 AD2d

at 837; see Matter of Carbone, 101 AD3d 866, 869 [2012]; Matter

of Mink, 91 AD3d 1061, 1063-1064 [2012]). 

In an accounting proceeding, the party submitting the

account has the ultimate burden of demonstrating that all the

assets of the estate have been fully accounted (see Matter of

Tract, 284 AD2d 543, 543 [2001]; Matter of Capaldo, 263 AD2d 910,

912 [1999]; Matter of Schnare, 191 AD2d 859, 860 [1993], lv

denied 82 NY2d 653 [1993]). "If left uncontested, the account

stands proved pro confesso[,] except in as far as it may be

patently contrary to law" (Matter of Curtis, 16 AD3d 725, 726

[2005] [internal quotation marks and citations omitted]). Where

the account is contested, the objectant bears the initial burden

of proffering evidence to establish that the account is
-4- 521306 

inaccurate or incomplete, and, upon satisfaction of that burden,

the burden shifts to the executor to prove, by a preponderance of

the evidence, that the account is accurate and complete (see

Matter of Gallagher, 81 AD3d 825, 825 [2011]; Matter of Curtis,

16 AD3d at 726-727; Matter of Robinson, 282 AD2d 607, 607 [2001];

Matter of Schnare, 191 AD2d at 860). "In reviewing a

determination made after a nonjury trial, the power of this Court

is as broad as that of the trial court, and this Court may render

the judgment it finds warranted by the facts, bearing in mind

that in a close case, the trial judge . . . had the advantage of

seeing the witnesses and hearing the testimony" (Matter of

Albert, 137 AD3d 1266, 1267 [2016] [internal quotation marks and

citation omitted], lv denied 27 NY3d 910 [2016]; see Matter of

Hunter, 100 AD3d 996, 997-998 [2012], lv dismissed 21 NY3d 1037

[2013], lv denied 22 NY3d 860 [2014]; Matter of Neustein, 97 AD3d

684, 685 [2012], lv denied 20 NY3d 858 [2013]).

At the outset, we note that, as highlighted by Nilan's many

successful objections, Tedesco's accounting was markedly

deficient. Nilan demonstrated, among other things, that Tedesco

omitted certain principal and income received by the estate,

underrepresented the date of death value of decedent's bank

account, included improper funeral and administration expenses,

while also leaving out valid expenses, and listed numerous

invalid creditor claims. Overall, Tedesco provided incomplete

documentation to support her accounting, often leaving alleged

expenses and creditor claims unsubstantiated, and her testimony

did little to illuminate the unsubstantiated creditor claims and

expenses, as she was frequently unable to explain various alleged

transactions. Furthermore, when questioned, Tedesco admitted

that certain alleged creditor claims were improper. Given the

utter deficiency of the accounting, coupled with the incomplete

supporting documentation and Tedesco's largely unhelpful

testimony, "all presumptions are against her and all doubts are

to be resolved adversely to her" (Matter of Camarda, 63 AD2d at

837; see Matter of Carbone, 101 AD3d at 869; Matter of Mink, 91

AD3d at 1063-1064).

A primary point of contention in the proceeding was the

inclusion in the accounting of expenses and creditor claims

relating to real property that was specifically bequeathed to
-5- 521306 

either Tedesco or Nilan. Title to real property that is

specifically bequeathed vests at the time of a decedent's death,

subject to the right of the executor to resort to it for the

payment of the administration and funeral expenses and the

decedent's debts (see SCPA 1902; Matter of Seviroli, 31 AD3d 452,

454-455 [2006]; Matter of Columbia Trust Co., 186 App Div 377,

380 [1919]; 7-92 Warren's Heaton on Surrogate's Court Practice

§ 92.05 [1] [2016]). In addition, "[a] specific legatee or

devisee is entitled to the profits produced by the property after

the death of the decedent and is also liable for all expenses

incurred in operating and maintaining the property thereafter"

(Matter of Williams, 71 Misc 2d 243, 247 [Sur Ct, NY County

1972]). 

Here, the record, including the few bank statements

provided by Tedesco, demonstrates that, from decedent's death in

January 2012 through the end of the accounting period, March 1,

2014, Tedesco took immediate possession of the Boght Road

properties, made improvements to those properties with funds from

decedent's bank account or the estate bank account and collected

and personally retained any rental income derived from the

properties. At the same time, however, Tedesco refused to

deliver to Nilan title to, and possession of, the Florida and

Mexico timeshares and the condominium, claiming that she was

entitled to hold them until she was certain that all of the

funeral and administration expenses had been paid and all of the

estate's debts had been satisfied. Tedesco paid some expenses

relating to the Mexico and Florida timeshares and the condominium

with funds from decedent's bank account or the estate bank

account, while, other times, she required Nilan to pay the

properties' expenses. Since, as set forth below, it appears that

the estate had sufficient principal and income to pay the valid

funeral and administration expenses and creditor claims, we

conclude that the most equitable resolution would have been for

Surrogate's Court to have held Tedesco and Nilan independently

responsible for the expenses and carrying charges of their

respective specific bequests of real property. Our determination

in this regard results in various modifications to the decree of

Surrogate's Court, as set forth in further detail below. To

outline these modifications, and others required upon our review

of the record, we address each relevant schedule of the account
-6- 521306 

in turn.

II. Schedule A: Principal Received

Beginning with schedule A of the account, because title to

specifically bequeathed real property vests at the time of death,

subject to the prior right of the executor pursuant to SCPA

article 19, Tedesco was not required to account for the Boght

Road properties, the condominium or the Mexico and Florida

timeshares (see SCPA 1902; Matter of Seviroli, 31 AD3d at 454-

455; Matter of Columbia Trust Co., 186 App Div at 380; 7-92

Warren's Heaton on Surrogate's Court Practice § 92.05 [1]

[2016]). However, Tedesco was required, and failed, to account

for the value of three vehicles that belonged to decedent and

were not specifically devised, namely, a 2007 Lincoln valued at

$12,000, a 2005 Mercury valued at $6,000 and a 1996 Ford F150

valued at $600. While Tedesco asserted that she and decedent

jointly held title to these three vehicles, she provided no

documentary evidence whatsoever to support this claim. 

Furthermore, we reject Tedesco's challenge to the valuation of

the vehicles, inasmuch as one of the exhibits that she submitted

with the account reflected these precise values. Resolving any

doubt adversely to Tedesco (see Matter of Carbone, 101 AD3d at

869; Matter of Mink, 91 AD3d at 1064; Matter of Camarda, 63 AD2d

at 837), Surrogate's Court properly concluded that these

vehicles, having a total date of death value of $18,600, should

have been included in schedule A of the account.1

Furthermore, Tedesco incorrectly listed the date of death

value of decedent's bank account as $8,078.54. Notably, Nilan,

not Tedesco, submitted the bank statements associated with

decedent's bank account from January 2012, the month in which

decedent died, through May 2012, when the remaining funds were

transferred by Tedesco into the estate bank account. On January

1, 2012, decedent's bank account had a balance of $37,051.37;

$1,020.77 was deposited into the account prior to decedent's

1 To the extent that Tedesco may no longer be in possession

of these vehicles, she is responsible to the estate for the date

of death value of each vehicle.
-7- 521306 

death and $14,594.44 was withdrawn from the account either before

decedent's death or pursuant to checks that were written prior to

her death. Accordingly, subtracting $14,594.44 (the total amount

of withdrawals) from $38,072.14 (the beginning balance of the

account, plus the amount of deposits made prior to decedent's

death), Surrogate's Court correctly determined that the date of

death value of decedent's bank account was $23,477.70. Based on

the foregoing errors and omissions, schedule A of the account

should have read as follows:

Description Date of Death Value

Grandview at Las Vegas $8,0002

2007 Lincoln $12,000

2005 Mercury $6,000

1996 Ford F150 $600

Personal Items $1,500

Decedent's Bank Account $23,477.70

Total: $51,577.70

III. Schedule A-2: Income Collected

 In schedule A-2, Tedesco solely listed rental income from

the Boght Road properties. Initially, inasmuch as Tedesco was

responsible for all expenses and carrying charges related to the

Boght Road properties (see Matter of Williams, 71 Misc 2d at

247), she was entitled to all rental income derived therefrom. 

Tedesco, however, erroneously omitted $9,784.70 in estate income. 

The May 2012, August 2012 and September 2012 statements for the

estate bank account, as well as a notice dated August 20, 2012

from the Internal Revenue Service, irrefutably demonstrate that

deposits were made into the account in the amounts of $237.05,

$545.65, $8,002 and $1,000.3 Accordingly, schedule A-2 should

2 We are unpersuaded by Tedesco's challenge to the date of

death value of the Las Vegas timeshare since she alleged this

valuation in the account.

3 Tedesco testified that her husband accidently deposited

$5,000 into the estate bank account and, as corroborated by the
-8- 521306 

have reflected the following:

Date Description Income

5/22/12 National Grid $237.05

8/13/12 21st Century N. Am. Ins. $545.65

8/31/12 IRS Refund $8,002

9/19/12 Unknown Contribution $1,000

Total: $9,784.70

IV. Schedule C: Funeral and Administration Expenses

 Turning to schedule C, administration expenses, followed by

funeral expenses, are preferred to all other debts and claims

against the estate and must be paid first (see SCPA 1811 [1]). 

"Administration expenses are limited to those expenses that are

actually and necessarily incurred in the administration of the

estate," including, among other things, expenses incurred in the

collection of assets and payment of debts, counsel fees, court

fees, appraisal fees and accountants' fees (7-93 Warren's Heaton

on Surrogate's Court Practice § 93.04 [1] [2016]; see e.g. EPTL

11-1.1 [b] [22]). Funeral expenses include the "reasonable

expense of a funeral, suitable church or other services as an

integral part thereof, expense of interment or other disposition

of the body, a burial lot and suitable monumental work thereon

and a reasonable expenditure for perpetual care of a burial lot

of the decedent" (SCPA 103 [22]). 

 Here, it is apparent from a review of the January 2012

through May 2012 statements for decedent's bank account and the

seven months of statements provided for the estate bank account

that the administration and funeral expenses listed by Tedesco

were both incomplete and inaccurate. First, Tedesco improperly

included as administration expenses costs associated with the

Boght Road properties, the timeshares and the condominium –

corresponding bank statement, this amount was immediately

withdrawn. Accordingly, we did not include this $5,000 deposit

as income of the estate.
-9- 521306 

including water, cable and electricity bills – and omitted proper

funeral and administration expenses. It is further apparent,

having reviewed each withdrawal from decedent's bank account and

the estate bank account in the statements in evidence, that

Tedesco routinely used the funds in the bank accounts to pay for

expenses related to the specifically-devised properties, for

which, as we have already held, Tedesco and Nilan were

individually responsible. Thus, exercising our factual review

power (see Matter of Albert, 137 AD3d at 1267; Matter of Hunter,

100 AD3d at 997-998; Matter of Neustein, 97 AD3d at 685), the

following checks were properly withdrawn from decedent's bank

account:

Check No. Date Description Amount

667 1/01/12 Dave Baker $500

668 1/19/12 Deacon Blues $785

790 1/02/12 Community Health Care $3,344

791 1/20/12 Felthousen Florist $1,944

792 1/20/12 Parker Brothers Memorial $10,405.50

Total: $16,978.504

 The remaining charges to decedent's bank account were

improper, as they reflected expenses associated with one of the

specifically-devised properties.5 Accordingly, Tedesco and Nilan

are responsible for reimbursing the estate for those expenses

that related to their respective specific bequests of real

property. Because it is unclear from the record which of these

4 It should be noted that, in Nilan's proposed findings of

fact and conclusions of law, she did not contest that these are

proper funeral and/or administration expenses.

5 In particular, these improper charges were: the January

23, 2012, February 21, 2012, March 27, 2012 and April 20, 2012

payments to National Grid; the January 31, 2012, March 27, 2012

and May 1, 2012 payments to FPL; the February 1, 2012, March 1,

2012, April 2, 2012 and May 1, 2012 payments to Pearl Carroll;

the April 3, 2012 payment to "21St Century/Pnot. Ded."; and check

number 793.
-10- 521306 

expenses should have been borne by Tedesco and which should have

been borne by Nilan, we remit the matter for a determination as

to which charges they are each responsible for paying.

 With respect to the estate bank account, we have reviewed

the bank statements from May 2012 through December 2012 and

October 2013 – the only ones provided by Tedesco – and find that

the following charges were properly paid by the estate:

Check No. Date Description Amount

5/08/12 Deluxe/Chk Order $19.70

139 8/11/12 Primary Care Physicians $9.62

135 8/20/12 East Greenbush Neurology $19.76

140 8/22/12 Burdett Orthopedics $20

141 8/22/12 Albany Medical College $20

142 8/22/12 Samaritan Hospital $15.83

143 8/22/12 St. Peter's Hospital $49.13

9/13/12 NSF Charge $25

Total: $179.04

The remaining expenditures from the estate bank account, as

reflected in the statements for May 2012 through December 2012,6

were improper and, to the extent that they are expenses of the

specifically-devised real properties, they must be repaid to the

estate by either Tedesco or Nilan, as determined by Surrogate's

Court upon remittal. 

 Because Tedesco only provided the estate bank account

statements for May 2012 through December 2012 and October 2013,

we are unable to conduct an exhaustive review of the funds

expended from that account to determine which additional charges,

if any, were proper funeral and/or administration expenses. 

Therefore, upon remittal, we direct Tedesco to produce the

monthly estate bank account statements from January 2013 through

September 2013 and November 2013 through April 2014 so that

Surrogate's Court can, with the benefit of further submissions

6 There were no deposits or withdrawals reflected in the

October 2013 statement.
-11- 521306 

from the parties, if they so choose, determine which

expenditures, if any, were properly paid by the estate as funeral

and/or administration expenses and which should be reimbursed by

Tedesco and/or Nilan.

V. Schedule C-1: Unpaid Administration Expenses

 In schedule C-1, Tedesco solely listed, as an unpaid

administration expense, $2,500 in counsel fees owed to the

estate's attorney. Although Tedesco testified at trial that she

had not yet paid this fee, she did not submit a retainer

agreement or invoice to confirm this alleged charge. 

Accordingly, we decline to disturb the determination of

Surrogate's Court to invalidate this allegedly unpaid

administration expense. 

VI. Schedule C-2: Administration, Expenses Chargeable to Income

 Each of the 18 alleged expenses listed by Tedesco in

schedule C-2, totaling $22,193.12, relate to one of the Boght

Road properties or the condominium. As such, none of these

expenses was properly included in schedule C-2.

VII. Schedule D: Creditor's Claims

 The majority of alleged creditor claims included by Tedesco

on schedule D were invalid and, having reviewed each alleged

claim, we find only the following to be proper:

Date Description Amount

1/06/12 Southwest Airlines $1,275.20

1/31/12 St. Basils $1,800

1/31/12 Felthousen's Inc. $2,052

2/01/12 William A. Turchick $1,500

2/08/12 Probate Fee $655

7/13/12 Grethen – Cahrenger Memorials $458

11/15/12 The Grandview of Las Vegas $174.75

Total: $7,914.95
-12- 521306 

The remaining alleged creditor claims, which appear to have been

personally paid by Tedesco, are not chargeable to the estate (see

generally 7-96 Warren's Heaton on Surrogate's Court Practice

§ 96.15 [1] [2016]). Nor is Tedesco entitled to reimbursement by

Nilan for these charges, as most relate to the Boght Road

properties or were expended for her benefit. With respect to the

expenses that Tedesco incurred in traveling to the Florida

condominium and the locksmith charge, such charges were improper

because they resulted from Tedesco's efforts to prevent Nilan

from taking possession of and renting the condominium that Nilan

lawfully took title to at the moment of decedent's death. 

VIII. Summary of the Account

 In sum, the account should have listed $51,577.70 in

principal on hand and $9,784.70 in income. In addition, insofar

as can be determined from the bank statements included in the

record on appeal, $25,072.49 was properly chargeable to the

estate as valid expenses and creditor claims. Upon remittal,

Surrogate's Court should determine, following Tedesco's

submission of the missing monthly estate bank account statements,

whether there were any additional valid funeral and/or

administration expenses paid by the estate and the total amount

that Tedesco and Nilan must individually pay to the estate as

reimbursement for expenses and carrying charges relating to their

respective specific bequests of real property. If, upon

remittal, Surrogate's Court determines that the total date of

death value of the principal on hand, plus the income of the

estate, exceeds the total value of the valid funeral and

administration expenses and valid creditor claims, Nilan is

entitled to receive the difference, up to $23,477.70 – the date

of death value of decedent's bank account, which Nilan was

specifically devised. The remainder of the principal on hand and

income, should there be any, is to be evenly split between

Tedesco and Nilan, as specifically provided for in decedent's

will.
-13- 521306 

IX. Surcharges, Counsel Fees and Costs

 Tedesco further challenges the surcharges imposed by

Surrogate's Court and the award of counsel fees to Nilan. A

fiduciary "owe[s] a duty of undivided loyalty to the decedent and

ha[s] a duty to preserve the assets that [decedent] entrusted to

him [or her]" (Matter of Donner, 82 NY2d 574, 584 [1993]). 

Generally, "[a] surcharge is warranted where a demonstrated

financial loss is suffered as a result of the fiduciary's

imprudent conduct" (Matter of Braasch, 140 AD3d 1341, 1343

[2016]; see Matter of Donner, 82 NY2d at 585). 

 Here, it is evident from the record that Tedesco took a

lackadaisical approach to accounting for the assets that were

entrusted to her and was completely derelict in fulfilling her

duties as the executor of the estate. She actively withheld from

Nilan title and possession of the condominium, thereby thwarting

Nilan's ability to rent the property and derive rental income

therefrom. In fact, as alluded to earlier, Tedesco flew to

Florida after having learned from the estate's attorney that

Nilan was at the condominium preparing it for rent, caused Nilan

and the contractors that Nilan had hired to perform improvements

to vacate the premises and thereafter prevented Nilan from

accessing the property. Meanwhile, Tedesco allowed herself full

access to, and benefit of, the Boght Road properties, deriving

rental income from them and largely paying for their expenses

with estate funds. Accordingly, Surrogate's Court did not abuse

its discretion in surcharging Tedesco $6,000 for lost rental

income, $2,892.04 as reimbursement for travel expenses and the

cost of materials relating to Nilan's trip to the condominium,

$10,000 for the date of death value of the Mexico timeshare, $900

as reimbursement for the membership fee for the Mexico timeshare

and $2,000 as reimbursement for the ancillary probate fees

incurred by Nilan (see Matter of Donner, 82 NY2d at 585; Matter

of Braasch, 140 AD3d at 1342; see generally SCPA 1807 [2]). 

Tedesco is further surcharged interest from the date of the

accounting for the date of death value of decedent's bank account

($23,477.70), or whatever amount Nilan is entitled to after

payment of the valid expenses and creditor claims, as set forth

in part VIII of this decision and determined by Surrogate's Court

upon remittal.
-14- 521306 

 Contrary to the determination of Surrogate's Court, because

we have held that Tedesco and Nilan are separately responsible

for the expenses and fees associated with their respective real

properties, we vacate the surcharge of $6,347.05 for

reimbursement of taxes and fees paid by Nilan for the

condominium. We further note that Tedesco is not surcharged for

the date of death value of decedent's bank account, as that is to

be paid to Nilan from the principal on hand and the income of the

estate, after payment of the valid administration and funeral

expenses and creditor claims.

 Finally, considering the substantial amount of time and

effort required to defend against the deficient account submitted

by Tedesco, we discern no abuse of discretion in the

determination of Surrogate's Court to surcharge Tedesco for the

full amount of counsel fees and costs incurred by Nilan (see

Matter of Braasch, 140 AD3d at 1342-1343; Matter of Pati, 151

AD2d 1006, 1007 [1989]). To the extent that any of Tedesco's

arguments are not expressly addressed by the foregoing, we have

reviewed and rejected such arguments.

 Peters, P.J., Garry, Devine and Aarons, JJ., concur.

 ORDERED that the order entered May 12, 2015 is modified, on

the law, without costs, as specifically set forth herein; matter

remitted to the Surrogate's Court of Albany County for further

proceedings not inconsistent with this Court's decision; and, as

so modified, affirmed.
-15- 521306 

 ORDERED that the order entered May 29, 2015 is affirmed,

without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court