Surrogate Edward McCarty III
Texin was survived by his spouse, Linda, from whom he was separated under an agreement, as well as two daughters, Jessica and Melissa. The daughters filed cross-petitions for letters of administration. Jessica’s petition was supported by a waiver and consent from Linda, and she claimed Melissa had a “negative personal bias towards her mother” that would interfere with the impartiality required by a fiduciary. Melissa alleged Jessica was biased and sympathetic toward Linda. The court noted where there was apparent antagonism between persons in the same class of priority, it was probable they were incapable of administering the estate together. It noted, however, Linda’s waiver and consent was of no effect as she was not a distributee entitled to a share of Texin’s estate, but a question remained if she also forfeited her rights to exempt property. The court found Melissa’s appointment as administrator was in the best interests of the estate, opining Jessica’s more sympathetic views toward Linda may skew her fiduciary duties by failing to properly assert claims against Linda, or defend the estate from claims Linda may raise, including for exempt property. Hence, it granted Melissa’s cross-petition.