This is a judicial settlement proceeding in an estate with present net proceeds available for distribution in excess of $1,000,000.00. The issue of kinship was set down for a hearing, on consent of the parties, before the Chief Attorney of this Court as Referee to hear and report (SCPA 506). At the commencement of the hearing, all parties consented to waive a formal report by the Referee and consented that this Court should decide the issues based upon the record of the proceedings. The guardian ad litem has submitted his report and recommendations, counsel for claimant Anna Podgorny Toporek [hereafter, Anna] responded, and the guardian ad litem replied to that response.

I now find and decide as follows.

In kinship proceedings, claimants have the burden of proving kinship (see, e.g., Matter of Morris, 277 AD2d 211), and must establish that they are decedent's closest surviving blood relatives as defined in EPTL 4-1.1 (see, Matter of Dinzey, NYLJ, June 9, 2003, at 33, col 4). For kinship to be established to the satisfaction of the Court, claimants must make an evidentiary showing (1) how each is related to decedent, and (2) that no other persons of the same or a nearer degree of relationship survived decedent. Upon proof that no heirs other than those before the Court exist, the class of heirs may be "closed" ( see, e.g., Matter of Alao, NYLJ, March 19, 2002, at 18, col 6).

In proving kinship, the Uniform Rules for Surrogate's Court [22 NYCRR §207.1, et. seq.]^[FN1] require that claimants "must" meet certain proof requirements. 22 NYCRR §207.16(c) provides as follows:

"If the petitioner alleges that the decedent was survived by no distributee or only one distributee, or where the relationship of distributees to the decedent is grandparents, aunts, uncles, first cousins or first cousins once removed, proof must be submitted to establish:

(1) how each such distributee is related to the decedent; and

(2) that no other persons of the same or a nearer degree of relationship survived the decedent.

Unless otherwise allowed by the court, the proof submitted pursuant to this subdivision must be by an affidavit or testimony of a disinterested person. Unless otherwise allowed by the court, if only one distributee survived the decedent, proof may not be given by the spouse or children of the distributee. The proof shall include as an exhibit a family tree, table or diagram, except no such table or diagram shall be required if the distributee is the spouse or only child of the decedent." (emphasis added)

"In all cases involving pedigree and the distribution of intestate property, it is first [*2]necessary to establish the identity of the common ancestor and from that point to construct the family tree to which all claimants must attach themselves to be successful" (Matter of Whalen, 146 Misc 176, 180 [1932]). "When persons of the nearest degree of relationship establish their standing, those more remote are excluded (Matter of Henesey, 3 Misc 2d 660, affd 3 AD2d 834). One who seeks to establish an interest in a decedent's estate as a collateral relative must show that all lines of descent which would precede his or her claim as a distributee are exhausted" (Matter of Dinzey, supra).

Decedent [hereafter, Walter] died intestate in Cheektowaga,

New York, on December 19, 2003. It is satisfactorily established that he was never married and never had any children.

Walter had what can best be described as a complicated family history. He was born on January 7, 1925, and his mother was Bernice Piotrowski ^[FN2] (who was 19 years old when Walter was born). It has been determined in the course of these proceedings that Walter's father was Ignacy Lelito, who was married at the time to Bernice's aunt, Eva Piotrowski Lelito.^[FN3]

After Walter's birth, Eva appears to have separated from her husband, Ignacy. Then, in 1930, Eva adopted Walter as her child through this Court,^[FN4] and the circumstances of his birth and the adoption remained generally secret until after Walter's death and these proceedings were commenced. Walter, however, became aware of the adoption at or around the time he sought to enter the United States Army in the early days of World War II.

Bernice Piotrowski, Walter's birth mother, lived with her Aunt Eva and with Walter. However, in 1928 she married Julian Szlachcic, who was born in Gromiec, Poland in 1906 and was Bernice's first cousin. Julian and Bernice had no children together, but at some point they resided together with Walter. Although details of this are very sketchy, Walter is known to have referred to Bernice as his mother and to Julian as "dad." The records, however, support no conclusion other than that Walter was adopted by Eva, and no other adoption of him ever took place. Julian died in 1987 in Cheektowaga, New York, and Bernice died there in 1991.

Based upon a prior application made on Anna's behalf, this Court has already found "that Ignacy Lelito, the issue of Ignacy Lelito, the parents of Ignacy Lelito and the issue of the parents of [*3]Ignacy Lelito are not entitled to a distribution from decedent Walter Lelito's estate" (Order, dated April 30, 2007). This Court has also found "that Bernice [Piotrowski] Szlachcic, the issue of Bernice Szlachcic, the parents of Bernice Szlachcic and the issue of the parents of Bernice Szlachcic are not entitled to a distribution from decedent Walter Lelito's estate" (id.).

In this posture of the case, there is no paternal line of inheritance from Walter's estate, and the kinship issues center solely on the family of his adoptive mother, Eva Piotrowski Lelito. Testimony has been taken both in this country and in Poland concerning the kinship issues, and a substantial number of documents have been admitted into evidence.

The guardian ad litem for unknown heirs — whose function in a kinship proceeding has been said, in effect, to be to hold claimants' feet to the evidentiary fire ^[FN5] — has submitted his report and recommendations, in the course of which he raises several evidentiary issues. Counsel for claimant Anna has responded to those issues, and the guardian ad litem replied to that response.

I now take up certain of the evidentiary issues to clear the way for a determination of the facts.

First, I have already held that the principles set out in §207.16(c) of the Uniform Rules for Surrogate's Courts apply in a kinship proceeding such as this. That being so, "[u]nless otherwise allowed by the court" (id.), proof must come at least in part from a "disinterested person" (id.). That does not mean, however, that the proof cannot consist of a mix of testimony from those who are not interested in the outcome, within the meaning of the law, as well as from those who may have a stake in the results of the case. As to the latter, I believe such testimony is permissible, with the weight to be accorded to the testimony an issue for the Court (see, e.g., Coleman v New York City Transit Authority, 37 NY2d 137, 142-143). In this context, I find that Anna is an interested witness under the circumstances of this case. However, a review of her testimony persuades me that her evidence should be accepted as given. The tenor of her answers to the questions posed gives reliability to the substance of those answers, especially because she had no hesitation in admitting when she did not know something (where another, perhaps less candid, person might have been willing to slant a response more favorable to the outcome she desired).

In a related vein, I find that the testimony, and documents provided by Krystyna Wadolek, Andrzej Szlachcic and Adam Szlachcic, as presented at this hearing, were not only not "interested" within the meaning of the law but were in fact clearly given against their financial interests. Those three witnesses are decedent's maternal first cousins once removed (see infra). As such, they could only inherit if it were determined that Anna was not Walter's first cousin and that no other first cousins had survived Walter. Their testimony, however, was unequivocal that they believed Anna was Walter's first cousin and that, to the best of their knowledge, no other first cousins had survived his death, all of which, if true, would preclude their inheriting.

Furthermore, the evidence received from Anna, Krystyna Wadolek, and Andrzej and Adam Szlachcic, is also admissible as pedigree testimony. See, generally, Prince, Richardson on Evidence, §§8-901 to 8-911 [Farrell, 11th ed], and Aalholm v People, 211 NY 406.

The guardian ad litem also urges that Anna's attorney and the genealogists, and their [*4]documentary submissions and testimony, are not "disinterested" because they will be compensated only if it is determined that Anna is entitled to share in Walter's estate. Although the record shows that certain of the work done by the genealogists occurred before Anna became a client of anyone included in this category of witnesses, it is equally true that the efforts at the hearing of Mr. Collesano, Anna's attorney, and Robert Katz, a representative of Hoerner Polska (a "genealogical research firm located in Poland which works with the Hoerner Bank of Heilbronn, Germany" [affidavit of Robert Ratz, sworn to December 5, 2007]), were all designed to establish that Anna is Walter's sole surviving first cousin and, therefore, is entitled to inherit the full net proceeds of his estate. Thus, although this evidence is "interested", it is nevertheless admissible, and, overall, I find it credible and persuasive.

Second, although urged otherwise by the guardian ad litem, the so-called "Deadman's Statute," CPLR 4519, has limited applicability in this case. "The purpose of the dead man's' statute is to protect estates from perjurious claims.CPLR 4519, in substance, provides that a party or person interested in the outcome of the litigation ... is incompetent to testify to a personal transaction or communication with a deceased ... person, when the testimony is offered against the representative ... of the deceased ... person" (Prince, Richardson on Evidence, supra, §6-121 [Farrell, 11th ed], emphasis added).

A review of the entire record shows that there is very little evidence of conversations or transactions with Walter by anyone who seeks to inherit from him. Nothing of that sort exists in Anna's testimony; and the few references in the evidence of Krystyna Wadolek, Adam Szlachcic or Andrzej Szlachcic are generally of inconsequential significance and would be admissible in any event (id., §6-125 ["a witness is competent to testify against his or her own interest"]). With respect to Walter's statements to federal examiners over the years contained in the sealed files from the Veterans Administration, the Deadman's Statute does not apply.

Third, the guardian ad litem contends that there is no adequate showing that Antoni Szlachcic is dead. However, I find the evidence concerning the death by Nazi firing squad at Auschwitz Concentration Camp of Walter's maternal first cousin, Antoni Szlachcic, is credible and adequately documented. While certain discrepancies exist in the records as to the precise date of death — in late 1944 or in early 1945 — I can perceive of no reason why the government of Poland, as it clearly did, would have awarded a posthumous medal in the 1970s for Szlachcic's activities in the Polish resistance unless that government had been convinced the records of Szlachcic's death were conclusive. See, additionally, the testimony of Andrzej and Adam Szlachcic, infra at p 15. Thus, I conclude that Antoni Szlachcic predeceased Walter by nearly 60 years.

Fourth, an issue has been raised concerning Jan Piotrowski [hereafter, Jan], a younger brother of Walter's adoptive mother, Eva, and a son of Jan Piotrowski and Anna Manka (who are the starting point in the maternal family tree). Put simply, the guardian ad litem urges that the record fails to establish that Jan had no descendants, whereas Anna contends the proof amply shows that he had none and that his "line" died out with him. Some extended discussion is necessary concerning this issue.

The Piotrowski family, at least starting in the mid-1800s with Jan Piotrowski and Anna Manka, came from Gromiec, a rural village in southern Poland, near Auschwitz and not far from Krakow. Many of the family members still reside either in Gromiec, or Bobrek, or in other places in that part of southern Poland. The area has been characterized in the record as staunchly Roman Catholic, with the church and its records dating back (at least) into the early 1800s accorded great [*5]deference.

Eva's younger brother Jan was born in Gromiec in 1879 and died there in June 1904. With one exception, everyone who testified about Jan referred to him as a priest.^[FN6] Each of the Polish witnesses who was questioned about whether Jan had had children responded to the effect that "no, priests don't have children." There seems to have been a sense of incredulity by these witnesses, including genealogist Robert Ratz, about the fact that such a question would even be asked.^[FN7]

The guardian ad litem suggests that insufficient efforts have been made to determine whether Jan's line died out with him. I find that, pursuant to SCPA 2225, "reasonable, diligent and exhaustive efforts" were in fact made in this regard. Keeping in mind the cultural milieu in which this extended family lived,^[FN8] coupled with the fact that, in the over 100 years since Jan's death, and in the four years now since Walter's death, no one has ever come forward claiming to be descended from "Father" Jan, and that nobody in this close-knit area has ever heard of any descendant of Jan's, I believe that no efforts beyond those actually expended were needed in this case. I conclude, therefore, that Jan died in 1904 without issue or descendants.

The "common ancestor" (Matter of Dinzey, supra,) for the starting point of the family tree ^[FN9] of the maternal side of Walter's family begins, as noted supra, with the elder Jan Piotrowski, who was born in 1842 in Gromiec, Poland, and Anna Manka, who was born there in 1854. Jan and Anna were married in 1872, and both died in Gromiec (Jan in 1911 and Anna in 1921).

Jan and Anna Piotrowski had 11 children: Rozalia (born in 1874); Eva (born in 1876); Jan (born in 1879); Gustav (born in 1881); Marianna (born in 1883); Anna (born in 1885); Wladyslaw (also known as John) (born in 1888); Bronislawa (born in 1890); Franciszek (born in 1893); Wojeiech (born in 1895); and (another) Bronislawa (born in 1897). Of those 11 children, the final four died in their very early years: both Bronislawas (the first in 1893 and the second in 1899), Franciszek (in 1893), and Wojeiech (in 1898).

Rozalia Piotrowski, the eldest of Jan and Anna's children, married Joseph Michniak in [*6]Bobrek, Poland. Joseph died in 1911and Rozalia died in 1942, and they had 7 children (who would have been Walter's first cousins). All Joseph and Rozalia's children predeceased Walter, the last of Walter's Michniak first cousins, Joanna Michniak Bebak, having died in Auschwitz, Poland in December 1988.

Eva Piotrowski , Jan and Anna's second child, is Walter's mother (by adoption) and has already been discussed supra. Eva had no children other than Walter.

Jan Piotrowski, Jan and Anna's third child, "Father" Jan, has also already been discussed supra. He had no descendants.

Gustav Piotrowski was Jan and Anna's fourth child, who was born in 1881 and died in 1918. He and his wife, Veronica Karez (who died in 1916) had two children: Bernice Piotrowski (Walter's birth mother, who died in 1991) and Isabella Piotrowski. From the time Walter was adopted in 1930 by Eva Piotrowski Lelito, Bernice and Isabella legally became his first cousins. Bernice married Julian Szlachcic, as noted, who was her first cousin through her father Gustav's sister, Marianna (see, infra). Isabella, who was married twice, died in 1974 in Florida.

Marianna Piotrowski was Jan and Anna's fifth child. She married Jan Szlachcic in 1905, and they both predeceased Walter, Marianna dying in Auschwitz, Poland in 1951 and Jan dying in Babice, Poland in 1960. Marianna and Jan had seven children: Julian (born in 1906); Bronislawa (born in 1908); Eugeniusz (born and died in 1916); Helena (born in 1914); Antoni (born in 1919); Marian (born and died in 1921); and Marian Kazimierz (born in 1923). These children would all have been Walter's first cousins and all predeceased him, the last child of Marianna and Jan, Helena, dying in Babice, Poland in 1999.

Of Marianna and Jan Szlachcic's seven children, three require brief discussion. Julian Szlachcic, of course, married Walter's birth mother, Bernice.

Helena Szlachcic married Bronislaw Guitkowski in 1945, and they had a daughter, Krystyna Guitkowski Wadolek, who would be Walter's first cousin once removed. Krystyna and her mother over the years gathered a great deal of information and documents about the family descending from Jan and Anna, and that family history, both oral and documentary, has proved to be especially important and helpful in this case.It is worth pointing out that both Krystyna and her mother were well-educated, Krystyna holding a post-graduate degree in education (philosophy and ethics), and appear to have taken great interest and pride in their family's history. I note, too, that both Helena and Krystyna were educators, Helena having been a teacher and Krystyna having retired in 2007 as a Senior Inspector of her Board of Education. Given their backgrounds, it is unlikely that either Helena or Krystyna would have accepted (or reported) at face value every scrap of gossip or piece of information about their family without having some considered basis for belief. Thus, I find that Krystyna's testimony is entitled to great deference.

Marian Kazimierz Szlachcic and his wife, Franciszka Lorenz, were married in 1947 and had (at least) two children, Adam and Andrzej Szlachcic. Adam and Andrzej would be Walter's first cousins once removed, and both testified at the hearing in Poland. Andrzej, the older of the two, has a Ph.D. in biomedical sciences, and did research in nuclear resonance for six months in Buffalo, New York in 1984-1985; he is a physicist and is a senior lecturer in Krakow, Poland, in biophysics and medical physics. Adam is a physician who heads a hospital in Auschwitz, Poland. Both have great pride in their family history and gave useful, detailed testimony about the family descended from Jan and Anna Piotrowski to the extent they know it. Their testimony was particularly enlightening about their paternal uncle, Antoni Szlachcic, who was killed as a captured Polish [*7]resistance leader by the Nazis in the waning days of World War II. Andrzej, who knew Walter particularly from the time he, Andrzej, studied in Buffalo, New York, was also helpful on the issue of whether Walter had ever married or whether he had had any children. And, in general, both Adam and Andrzej, from stories recounted to them, or in their presence, about their family history, and from a rich trove of family documents they had available to them, gave insightful evidence about the family.

Anna Piotrowski, was Jan and Anna's sixth child. She was born in 1885 and died in Gromiec, Poland in 1969. She was married twice, and by her first husband, John Podgorny, she had three children: Gustaw Feliks (born in 1912), Melania (born in 1914), and Anna (born in 1922). All three children would be Walter's first cousins. Gustaw Feliks and Melania both predeceased Walter, Gustav Feliks in 1995 and Melania in 1943. Anna, the still-surviving first cousin, married Roman Toporek in 1947, has children, and is the present claimant. The evidence, while minimal, also satisfactorily establishes that Anna Piotrowski had no children by her second husband, Franciszek Piwowarczyk.

Wladyslaw (John) Piotrowski was Jan and Anna's seventh child. He married Victoria Piecthowicz in 1911, and they had five children, all of whom would have been Walter's first cousins and all of whom predeceased Walter. Wladyslaw (John) died in 1948 in Detroit, Michigan.

Jan and Anna's last four children all died before each was three years old and their "lines" died out with them.

Anna, the claimant in this case, gave testimony at the hearing in Poland. Although 85 years old, her memory in most areas of the questioning was extremely good, and I found her evidence persuasive. She had specific, interesting family details that lent credible, sometimes colorful, insights into the family, such as how she and her mother learned about the death of her - - Anna Podgorny Toporek's - - father in 1926.

Finally, my review of the evidence shows that the testimony of Robert Ratz, a Hoerner Polska genealogist, and Father Maslanka, the Bobrek parish priest, was particularly helpful in understanding the sources of Polish documents and system of record keeping in that country, and, in particular, the reliance placed by the Polish government - - and before that, by the government of the Austro-Hungarian empire - - on parish (and related) records of the Roman Catholic Church. Those parish records have been invaluable in this case in certain critical areas, but it is the Ratz-Maslanka testimony that illuminates the weight and worth of those documents.

If all outstanding fees and expenses are known and have been presented to this Court, they are hereby approved as presented, there having been no objections to the same. If there are any other fees or expenses which must be considered and approved, the same must be submitted to the undersigned in writing with a copy to any other presently-interested party, on or before April 15, 2008. If such additional submissions are received, the other parties may respond in writing, if they care to, on or before April 22, 2008. Decision on any such matters will be on the papers only, and a summary order will issue no later than April 25, 2008. [*8]

This decision shall constitute the Order of this Court and no other or further order shall be required.

DATED:BUFFALO, NEW YORK

March 31, 2008

BARBARA HOWE

Surrogate Judge