Specific Devisee

This week we wanted to direct your attention to a very interesting case out of the Fourth Department which involved an Executor who, without Surrogate’s Court authority, sold a property that was left to a Specific Devisee under the probated Last Will and Testament of the decedent. As discussed in detail in the Court Order (see Link to case below), while it is undisputed under New York law that the interest of a specific devisee vests immediately on the death of a decedent, under the specific facts of this case, the Appellate Division nonetheless refused to void the Deed and quieted Title of the property in the name of the Bona Fide Purchasers. The facts of the case are summarized as follows:

The Last Will and Testament specifically devised real property located in Buffalo, New York to the Plaintiff. Notwithstanding, without leave of the Surrogate’s Court required by Estates, Powers and Trusts Law Section 13-1.3 (“Assets chargeable with payment of estate obligations…”), the Executor sold the property to persons whom the Supreme Court, Erie County, found were bona fide purchasers. The specific devisee commenced an action seeking to have that deed declared void ab initio and to be declared the owner of the property.

The Appellate Division, Fourth Department, affirmed the judgment of the Supreme Court dismissing the complaint and declaring that the purchasers owned the property “free and clear of any claim by” the Plaintiff. It was established at trial that the Plaintiff and her attorneys, by exchanges of emails and texts with the Executor and his attorneys, had consented to the sale and also that the purchasers were bona purchasers for value without notice of an adverse interest. Further, notwithstanding the requirement that leave of court be obtained for an Executor to sell specifically devised property, “[e]ven if we assume, arguendo, that plaintiff is correct on the issue of the brother’s authority, ‘sales of property by executors falling within certain prohibitions of a long public policy are voidable and not void’ [citation omitted]. As a result, defendants, as bona fide purchasers, are protected against rescission under the circumstances of this case [citation omitted].”
Ehlenfield v. Kingsbury, 2022 NY Slip Op 03817, decided June 10, 2022, is posted at
https://www.nycourts.gov/reporter/3dseries/2022/2022_03817.htm

While the specific facts of this case supported the Bona Fide Purchaser’s claim to Title, it took extensive litigation to sort out the issues. This case is a reminder of the importance of determining whether your client’s Last Will and Testament include any Specific Devise of Real Property before preparing your Contract of Sale, so that you can be certain whether your Executor has the proper authority to sell.