Cite as: Matter of Cain, 2012-388/B, NYLJ 1202639807195, at *1 (Surr., NY, Decided January 8, 2014)


Surrogate Rita Mella

Decided: January 8, 2014





October 25, 2013 was the return date for two petitions by Jeanne Cain Dingle, a beneficiary under Article FIRST of the will of her mother, Jeanne W. Cain. The first petition sought to compel an accounting from Barbara C. Rucci as executor pursuant to SCPA §2205. That petition was granted and Ms. Rucci was directed to account within 45 days, as memorialized in a decision of this court dated October 30, 2013. The second petition sought an order compelling Ms. Rucci to pay petitioner all of her beneficial interest pursuant to SCPA §2102(4). For the following reasons, this petition is held in abeyance pending the accounting of Barbara C. Rucci.

Decedent died January 18, 2012. Her daughter, Ms. Rucci, was granted Preliminary Letters Testamentary on February 2, 2012, and decedent's will was admitted to probate and full Letters Testamentary issued to Ms. Rucci on February 24, 2012. Under Article FIRST of decedent's will, she left her entire estate to her five children, including Petitioner and Respondent, in equal shares.

Pursuant to SCPA §2102(4), a proceeding may be commenced to require a fiduciary to pay a legacy or distributive share, and it is in the discretion of the court to compel payment of




a legacy before the executor has accounted (Matter of Liebowitz, NYLJ, July 19, 1991, at 28, col 2 [Sur Ct, Kings County]). The usual procedure is to hold the relief in abeyance when an accounting has already been directed in order to avoid prejudice, unless there is adequate reason why payment should be directed immediately (Matter of Polacco, NYLJ, Apr. 25, 1995, at 32, col 5 [Sur Ct, Nassau County]; see Matter of Liebowitz, supra). The court finds no reason to stray from that procedure here.

Ms. Dingle has failed to present an adequate reason for directing immediate payment. For instance, she has not alleged any personal need, emergency, wrongdoing on the part of the fiduciary, nor egregious or unreasonable delay by the fiduciary which would provide cause for the court to grant the relief she requests (compare Matter of Beacher, 2010 N.Y. Slip Op. 33066 [Sur Ct, NY County]; Matter of Rutter, 173 AD 563 [1st Dept 1916]).

Furthermore, Ms. Dingle has not demonstrated that her requested relief will not adversely affect or possibly prejudice the rights of others (Matter of Polacco, supra ["In the absence of any showing that part of petitioners' interest can be satisfied without jeopardizing the rights of others, the court finds their payment should await the final accounting particularly where the court has directed such account to be filed."]; Matter of Beacher, supra). As aforementioned, Ms. Dingle is one of five beneficiaries to a percentage share of decedent's estate. The Inventory of Assets filed by the executor indicates that the largest asset of this approximately $850,000 estate is the shares of stock allocated to a cooperative apartment, and it appears that the apartment has not yet been sold. Thus, calculating the share to which Ms. Dingle is entitled at this point would yield an imperfect result (Matter of Liebowitz, supra [court found that an early distribution would prejudice the rights of other beneficiaries since estate assets had not been liquidated]).




For the above reasons, Ms. Dingle's request to compel Ms. Rucci to pay her legacy in full is held in abeyance pending the directed accounting by Ms. Rucci.

This decision constitutes the order of the court.

Dated: January 8, 2014