IN THE MATTER OF DAVIS

JAMES D. PAGONES, J.

Residuary beneficiaries Ronnie Davis and Cheryl D. Kroll separately petition for letters of administration, c.t.a. in the above-referenced estate. Initially, Ronnie Davis objected to the issuance of letters of administration, c.t.a. to Cheryl D. Kroll; however, Ronnie Davis subsequently withdrew his objections and amended his petition by affidavit to request that letters be issued jointly to himself and Cheryl D. Kroll. Edward Davis, a residuary beneficiary, has executed a waiver of citation, renunciation and consent to the appointment of Ronnie Davis and Cheryl Kroll as administrators, c.t.a. The only other residuary beneficiary, Montelisa Davis, objects to the issuance of letters to either Ronnie Davis or Cheryl Kroll and requests the appointment of an independent third party as the administrator, c.t.a.

Surrogate's Court Procedure Act §1418 sets out the priority of persons entitled to letters of administration, c.t.a. as follows: (1) the sole beneficiary or his fiduciary; (2) one or more of the residuary beneficiaries or their fiduciary; (3) any person interested in the estate or his fiduciary; (4) the public administrator or treasurer of the county; (5) the petitioner or other person designated by the court. The court has no discretion when issuing letters and must follow the priority set forth by the statute. (In re Boyle, 224 A.D.2d 374 [1st Dept. 1996].)

While the priority for receiving letters of administration, c.t.a. is set forth in SCPA §1418, the question of ineligibility to receive letters is governed generally by SCPA §707. SCPA §707 contains six grounds for finding a person ineligible: (1) an infant; (2) an incompetent; (3) a non-domiciliary alien with certain exceptions; (4) a felon; (5) one who does not possess the qualifications required by a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of office; and (6) an individual who is unable to read or write the English language. The party alleging ineligibility has the burden of proof. (In re Krom, 86 A.D.2d 689 [3rd Dept. 1982].) Objectant Montelisa Davis' submission indicates that the basis for her objection is grounded in her contention that both petitioners are unfit for the execution of office.

Certain of the objectant's arguments, including the propriety of the disposition of particular items of the decedent's personal property, have already been disposed of by decree of this court in June 2010, settling an intermediate account of the previous executor. Many of the objectant's other arguments, including but not limited to her concerns relating to the decedent's real property, are premature and are more appropriately addressed in an accounting. A fiduciary is required to use good business judgment to sell the decedent's real property. To the extent the fiduciaries fail to do so, a beneficiary of the estate, including the objectant herein, may seek to surcharge the fiduciaries by showing that they "acted negligently, and with an absence of diligence and prudence which an ordinary man would exercise in his own affairs." (Matter of Lovell, 23 A.D.3d 386 [2nd Dept. 2005], citing Matter of Shurtleff, 206 Misc. 255 {NY Sur. Ct. 1954].) Therefore, the court finds as a matter of law that the Montelisa Davis' objection are without merit and insufficient to warrant the denial of letters of administration, c.t.a. to the petitioners. The petition of Ronnie E. Davis, as amended by his affidavit of December 2011, is granted and joint letters of administrator c.t.a. shall be issued to Ronnie E. Davis and Cheryl Kroll.

Counsel for petitioner Ronnie E. Davis is directed to submit a decree on notice consistent with the foregoing within ten (10) days from the date of this decision.