                          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
