Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the March 3, 2014 mailing of "Constructive Notice":

Surrogate's Court Jurisdiction Over Title Disputes

The Surrogate’s Court lacks jurisdiction over a title dispute that arose between a life tenant devisee and a remainder devisee. Matter of the Last Will and Testament of Escobar, Kings County Surr. Ct. # 3280/2001/A (Lopez-Torres, J.) (reported in the NYLJ 2/11/14).

The decedent’s will left the real estate to her nephew for his life, provided he lived in the house until his death. At that time, the property was to be sold and the proceeds divided between two charities. The executor transferred the property to the nephew for his life, with the remainder to the charities. Following the nephew’s apparent removal to Florida and sufferance of waste on the property, the charities petitioned for an order vesting their remainder interests.

The Surrogate’s Court lacked subject matter jurisdiction because the “controversy in no way affects the affairs of the decedent or the administration of her estate. Rather, it relates to an independent matter involving a controversy between living parties or entities.” The Court reasoned that even if the life estate were terminated, the property would not revert to the estate nor would the Surrogate's Court be required to determine how the property would be distributed.


The opinion is silent as to whether the residency condition was included in the executor’s deed. Yet the Court places great weight on the fact that the property “clearly passed from the estate to the life tenant.” The Court holds that “the matter in controversy relates to the determination of whether the life tenant has repudiated his obligation on property which was deeded to him as a life tenant.” As such, the Court need not determine if a breach of the residency condition contained in the devise has occurred.