In re the Estate of McGarrity , 69 A.D.2d 819 ( 1979 )


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  • In a proceeding to settle the account rendered by the administrator of the estate of Ellen McGarrity, also known as Helen McGarrity, objectant Serena J. Largent, a first cousin of the deceased, appeals from so much of a decree of the Surrogate’s Court, Westchester County, dated November 30, 1977, as ordered that the administrator pay the balance of the estate ($21,479.54) to the Comptroller of the State of New York to be held for the benefit of the persons who might be entitled thereto, in accordance with the provisions of SCPA 2222. Decree reversed insofar as appealed from, on the law, without costs or disbursements, by deleting subdivision 2 of the third decretal paragraph thereof and substituting therefor a provision directing that the balance of the estate be paid equally to the appellant and her sister Eleanor Dagenais as the sole distributees. In our opinion it was established by a preponderance of the credible evidence that appellant and her sister, Eleanor Dagenais, were the sole distributees of the decedent (see Matter of Johnson v La Sala Mason Corp., 19 AD2d 925, mot for lv to app den 13 NY2d 601). We note that in addition to the testimony of appellant and her husband, there was also presented the testimony of decedent’s long-time friend, Margaret Fitzgerald, a disinterested witness, and decedent’s former tenant, James Leschen, also a disinterested witness. Under the circumstances of this case we find that appellant’s attorney made a sufficiently diligent search to warrant the application of SCPA 2225 in appellant’s favor. The estate is small and the status of appellant and her sister has been established. "Distribution of the estate should not be withheld from them merely because of the remote possibility, finding no support in the record, that there may be unknown distributees” (Matter of Deflacieuz, 87 *820Misc 2d 845, 847; Matter of Russo, 91 Misc 2d 984). Damiani, J. P., Titone and O’Connor, JJ., concur.

Document Info

Citation Numbers: 69 A.D.2d 819

Judges: Martuscello

Filed Date: 4/2/1979

Precedential Status: Precedential

Modified Date: 1/12/2022