When thinking of the Surrogate’s Court, jurisdiction over eviction proceedings does not normally come to mind. Yet, over the past 18 months, the Surrogates of New York and Bronx counties have found cause to order an eviction from estate or trust property in order to facilitate its sale. Consider the following:

In In re Jenkins, 2020 NYLJ LEXIS 1723, the Surrogate’s Court, Bronx County, was confronted with an application, characterized as the equivalent of a proceeding pursuant to SCPA 1902, to sell the decedent’s interest in a parcel of realty, and to evict the decedent’s grandson from the premises. The application was supported by two of the decedent’s granddaughters. However, it was opposed by the decedent’s grandson, who stated that he wished to buy the realty, but for a price less than the contract price.  The court noted that courts have liberally granted SCPA 1902 (1), (6) and (7) applications to sell realty over the objections of some of the co-tenants in common who derived their interest in the realty from the decedent, provided that there is a sufficient nexus between the relief requested and the administration of the decedent’s estate.

The record revealed that the decedent died on August 18, 2006 owning several parcels of realty. Letters of administration issued to her son on June 12, 2007. Thereafter, one of the decedent’s granddaughters commenced a compulsory accounting proceeding in October, 2015 not only seeking an accounting for almost a decade of stagnation, but more importantly for payment of her distributive share.

In view of the foregoing, and the delay in administering and distributing the estate for the 14 year period since the decedent’s death, the court, although sympathetic to the decedent’s grandson, granted the petitioner’s application, and issued a warrant of eviction, which was stayed for thirty days in order to allow the grandson to vacate the premises voluntarily.

Prior to the decision in Jenkins, the Surrogate’s Court, New York County, (Anderson, S.) in In re Flender, 2019 NY Slip Op 33676(U), issued a warrant of eviction from trust property finding that it was in the best interests of the beneficiaries, and in keeping with the intent of the testator.

The subject proceeding had been commenced by the co-executors and co-trustees of the estate against the decedent’s daughter, her companion, and their two children. The decedent’s daughter opposed the application alleging that the executors had withheld a distribution of funds to which she, and/or a trust for her benefit, was entitled, and thus, effectively deprived her of her right to purchase the premises within the time frame authorized under the decedent’s will.  After denying the petitioners’ motion for summary judgment, the court held a three day evidentiary hearing to determine whether the daughters’ failure to purchase the property was due to petitioners’ abuse of discretion as trustees of trusts in which the daughter had a beneficial interest.

In determining that the petitioners acted properly in denying the daughter certain requested distributions, the court first considered the provisions of the decedent’s will which directed that the property be sold. Secondly, the court recognized that the will of the decedent expressly conferred absolute discretion on the petitioners as to how and when to invade the trust principal with which they were entrusted. The court noted that while this discretion could not be abused, where a fiduciary’s discretion is exercised in good faith, it may not be superseded by a court’s own sense of what might be wiser or fairer. Assessed within this context, the court found that there was no evidence of bad faith or misconduct in the petitioners’ refusal to make a substantial invasion of trust principal in order to enable the daughter to purchase the subject property, which was demonstrably beyond her means. Indeed, it appeared that the daughter would have been unable to maintain the property even if she obtained the requisite funds to satisfy the purchase price.

As such, the court found the record amply supported the petitioners’ conclusion that the daughter and other trust beneficiaries would be better served by avoiding depletion of the trust assets in order to enable the daughter to continue to reside in the property. In fact, the court observed that the decedent’s direction in his will that the premises be sold soon after her death reflected her intention that the property be utilized as a source of liquidity for his children’s trusts, an objective that would have been undermined by a reduction of the trust funds in order to accommodate the daughter’s requested invasion of principal.

Accordingly, the court granted the petitioners’ application, and directed a turnover of the premises, and that an order be settled providing for the issuance of a warrant of eviction.