18 | September/October 2022 | BAEC Bulletin Death & Taxes
Ehlenfiled v. Kingsbury , 206 A.D. 3d 1671 (4th Dept., 2022) This case contains several fascinating legal nuggets. Decedent was survived by his brother Richard, who was named executor of decedent’s Will. The Will left a parcel of real property to the Plaintiff. However, the estate lacked sufficient liquid assets to pay debts, funeral and administration expenses. With the knowledge and alleged consent of the Plaintiff and her first two attorneys, the executor sold the real property to defendant. After satisfying the mortgage on the property, the executor put the net proceeds of the sale in the estate account and waited for the seven-month creditors’ period to pass. After that period expired, the executor asked Plaintiff through her then-attorney, not one of the two original attorneys who were involved in the agreement, to sign a release for the balance of the cash. Plaintiff refused to sign the release and commenced the within action, seeking a declaration that the defendants had no interest in the property, and for costs and legal fees. Plaintiff and defendants each moved for summary judgment. Supreme Court denied Plaintiff’s motion, granted defendants’ motion, dismissed the complaint, and declared the deed to the property valid and that defendants are the owners of the property free and clear from any claim by Plaintiff. In the Appellate Division, Plaintiff argued that because of the specific devise of the property to her in the Will, title to the property vested in her at the moment of death. The Appellate Division agreed that title had vested, but that vesting was subject to the executor’s power to sell the property to satisfy the estate’s debts and other obligations. But, the Court pointed out that the executor cannot sell specifically devised property pursuant to EPTL 13-1.3(c) without leave of the Surrogate’s Court [EPTL 11-1.1(b)(5)(E)]. Unfortunately, the executor did not seek Surrogate’s permission before selling the property to the defendants. However, the Appellate Division concluded that the sale was valid because the Plaintiff and her first two attorneys affirmatively consented to the sale. The Court noted that the Plaintiff’s consent to the sale was evidenced by the terms set forth in various e-mails and text messages exchanged between Plaintiff, the executor and their respective attorneys. It is well established that “e-mails exchanged between counsel, which contain their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds” and can be the basis of a binding agreement (Williamson v Delsener, 59 AD3d 291, 291, 874 N.Y.S.2d 41 [1st Dept 2009]). 206 A.D.3d 1671 Plaintiff claimed that her initial two attorneys in agreeing to the sale either acted without her knowledge or were “tricked” into agreeing to the sale. While such questions of credibility are often an issue of fact for trial, the Court noted that there are instances where credibility may be determined as a matter of law. The Court concluded that the plaintiff’s self-serving statements were contrary to all of the other evidence, including Plaintiff’s own prior messages consenting to the sale. Further, the Court held that defendants had established on their cross motion that they are bona fide purchasers for value and, as such, are entitled to summary judgment. Plaintiff contended that the defendants had a duty to inquire because the sale was consummated via an executor’s deed.
PETER J. BREVORKA Partner, Hodgson Russ LLP
JILLIAN E. BREVORKA Partner, Hodgson Russ LLP
Plaintiff argued that the deed was void ab initio. The Appellate Divison held that
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