In this proceeding to judicially settle the account of the co-executors, two alleged first cousins of the decedent, Frances Pacosz ("Frances"), claim to be her only distributees, thus entitling them to inherit her estate pursuant to EPTL 4-1.1 (a)(6).

Frances died at the age of 89 on June 6, 2003, leaving a Last Will and Testament dated June 20, 1984. This document was probated on November 10, 2003 and two co-executors, Carolyn [*2]Woloszyn ("Carolyn") and Mary S. Woloszyn ("Mary") were awarded letters testamentary at that time. This Will left specific dollar amounts to Frances' brother, Joseph Dzieciuch ("Joseph"); to Mary, who was Frances' sister-in-law; to other non-relatives; to a church; and to Carolyn, whom she identified as a "niece."^[FN1] The Will contained no residuary clause, and now the balance of this estate will be distributed through intestacy.

At the time of Frances' death, Joseph had predeceased her, and the class of distributees cited in the probate proceeding was cousins. Initially, only one maternal cousin's identity was known, Josephine Lortz ^[FN2] ("Josephine"). Later, the guardian ad litem appointed by the Court in that proceeding to represent unknown heirs discovered that Josephine had a living brother, John Kearns ("John K"), who also was alleged to be a maternal cousin.

The family tree ^[FN3] filed in the probate proceeding identified Josephine and John K as Frances' only living cousins, and it listed other family members who had predeceased Frances: her spouse, Stanley Pacosz ("Stanley"); her parents, Catherine Kosciuch ^[FN4] ("Catherine") and John Dzieciuch (John D"); her brother, Joseph; her maternal uncles, Anthony Kosciuch ("Anthony") and Frank Kosciuch ("Frank"); and her maternal cousins, Blanche Nowakowski ("Blanche"), Julia Kosciuch ("Julia"), Chester Kosciuch ("Chester"), Walter Kosciuch ("Walter"), Matthew Kosciuch ("Matthew"), and Lucy Sommersdorf ("Lucy"). Nothing was known about Frances' paternal line, other than the name of her father.

In the proceeding for judicial settlement pending before me now, the co-executors propose that the net residuary estate of approximately $120,000 first be paid toward outstanding administration expenses, with the balance to be distributed as follows: one quarter each to John K and Josephine, and one-half to the New York State Comptroller, "subject to SCPA §2225," ostensibly for unknown heirs on Frances' paternal side.

A kinship hearing was held on three separate dates before a Court Attorney-Referee to hear and report with respect to the issues which I now must decide. At the hearing, counsel for all parties consented to the appointment of the referee, waived the filing of a written referee report, and consented that I might determine the issues based on the testimony and documentary evidence adduced (see, SCPA 506 [6] [c]).

The proof adduced at the hearing consisted of oral testimony from both claimants and from [*3]four other witnesses, together with some documentary submissions.^[FN5]

Eugenia Dzieciuch ("Eugenia"), a ninety-year-old disinterested witness,^[FN6] stated that she had been married to Frances' brother, Joseph, until he died in the early 1990's. She testified credibly about the close relationship that she and Joseph had with Frances and her husband Stanley. Over the years the two couples had kept in close contact with each other and were friends. The couples were even married on the same day in the same church in 1946.

Eugenia testified that Joseph was married only to her, and that he never had children. Joseph had told Eugenia that his mother, Catherine, died when he was around 12 years old and that his father raised him and Frances. Joseph's father, John D, was alive when Eugenia first dated Joseph, but John D died locally before she was able to meet him.

Eugenia knew Frances for over 50 years and talked to her almost every day. After Stanley died in 1983, Frances came to live with Eugenia and Joseph for about a year, until she went to live with another sister-in-law. Frances had no issue and was married only to Stanley.

Eugenia stated that neither Joseph nor Frances ever spoke of any family on their father's side, and she does not recall ever seeing correspondence from any of his paternal family members.

Joseph had told Eugenia that his family lived in Geneva, New York for a period of time when he was a youngster before they moved to Buffalo. Eugenia never came to learn why they lived there, and said Joseph and Frances were "a little bit reserved, they didn't do much talking about anybody."

Eugenia had met some of Frances' maternal family members over the years. She seemed to recall that cousin Chester was a bachelor who had worked in a meat packing plant, and that cousin Julia never married or had children. She also knew cousins Lucy and Josephine, and Matthew, the latter of whom was her husband Joseph's good friend. Lucy visited them occasionally; however, Eugenia stated that she really was not close to that side of Frances' family, and she did not know if Frances had any maternal aunts or uncles other than Uncle Frank, who was the father of these particular cousins.

Carolyn, a co-executrix,^[FN7] testified that she was related to Frances through marriage, since she was Stanley's niece. She had known Frances for over 30 years and saw her at least once a month. Frances even lived with Carolyn for over 10 years after Stanley's death.

Despite this significant contact with Frances, Carolyn knew little about her family and described Frances as a "very private person" who "didn't discuss her relatives." Carolyn was aware of Eugenia and Joseph and knew that they had no children. She stated that Frances and Stanley also [*4]had no issue. With respect to Frances' maternal family, however, Carolyn knew little. She had never heard anything about John K, and she had never met Josephine, although she knew that Frances and Josephine wrote to each other periodically. Frances had never shared the contents of this correspondence with Carolyn.

Claimant John K testified that he was born in Buffalo in 1924 as "John Kosciuch," but he legally changed his name to "John Kearns" in 1944.^[FN8] He stated that his parents, Frank and Mary, and five of his six siblings, Lucy, Chester, Walter, Julia, and Matthew, were deceased. He identified himself and his sister, Josephine, as the last remaining members of his family.

John K believed that his parents were born in Poland and may have married there or in the United States; he was not sure.

He admitted that he did not know Frances or her mother, Catherine, who was his father Frank's sister. He further testified that he did not know about any of his father's siblings or his grandparents, whom he surmised had lived in Poland. His parents, to the best of his recollection, never talked about them. He thought that "a few cards" came from Poland, but it was "hard to remember these things."

Claimant Josephine testified about her knowledge of Frances and about Josephine's nuclear family to the best of her ability, but at the age of 88 ^[FN9] her memory of people and events oftentimes lacked clarity or even was at odds with the testimony of other witnesses and with the corroborating documentary evidence.^[FN10]

She testified that her parents never returned to Poland after emigrating to the United States and that they never spoke about her grandparents, speculating that "they [her grandparents] must have died before they [her parents] came." She admitted that there may have been cards that came to her parents from Poland many years ago, but it was "hard to remember years and years ago."

While Josephine's testimony was credible in parts, I give it little weight due to the variance within her own testimony and with that of other witnesses, as well as her seeming inability to formulate some answers without the assistance of leading questions.

Josephine's daughter, Anne Lortz Kasperek ("Anne"), testified about her [*5]knowledge of her mother and grandfather's (Frank's) family. Frank had lived with her family while she was a small child until he died in 1958. She recalled that her grandfather spoke little English, and that, in general, he was "a man of few words." The primary source of her knowledge about the members of this family came from her mother's sister, her Aunt Julia, whom Anne called a "big part" of her life. Julia

was "a storyteller" who produced a family tree history ^[FN11] sometime in the 1980's "to share with the children."

Anne did not know who her grandfather Frank's parents were, nor, she stated, was this information contained in her Aunt Julia's account of the family's history. Anne offered an explanation as to why this information was not known to her family:

"People that came [from Europe] at that time, my grandparents

... didn't want the old stuff. Although ... I remember ... my grand-

mother trying to write, so I would think she was writing back to

people in Poland, but you know, it wasn't like it is today. It was,

this is a new life and we're not going back there."

When asked about the number of brothers or sisters Frank had, Anne referred to two ^[FN12] that she recalled being mentioned in her copy of Aunt Julia's tree. She also remembered her family saying that her grandfather Frank had one brother, Anthony, and a sister, Catherine. She believed that Anthony died ^[FN13] prior to her own birth in 1953, because she never recalled meeting him. She further stated that Anthony's son, Anthony K,^[FN14] died in the mid-1960's.

Sandy Pieczynski ("Sandy"), the attorney for one of the maternal claimants, was the only witness to give testimony with respect to a search for Frances' paternal [*6]family. Sandy estimated that she spent over 100 hours checking kinship websites, census records, Ellis Island records and the like in an attempt to produce a duly diligent effort in locating any paternal heirs.

She wrote letters to some people with the same last name;^[FN15] she advertised in the Am Pol Eagle, a local Polish newspaper; she wrote to ten local Polish churches asking them to search their records; and she checked local Surrogate Court records. Sandy talked to an amateur geneologist at the Western New York Geneology Society, Edward Cornowski ("Edward"), who told her that 539 people in Poland had the "Dzieciuch" last name in 1990. She reviewed letters ^[FN16] from Poland that her client had given her, which she had translated, but, she stated, gave no information about family members. Edward assured her that she "had done everything that he would have done if he had been hired to assist in this matter."

John D's 1945 death certificate received into evidence listed the informant as his son, Joseph. John D's father's name was left blank, and the mother's first name was only listed as "Tekla." John D's birthplace was listed as "Poland," with no town or city identified. Without more specific information to refer to, Sandy felt that she could not go further in her efforts to locate heirs. Furthermore, she believed that, due to the ravages of World War II, it would be futile to do so, because, in her view, the search for records in Poland ends in frustration and failure "99 percent of the time."

Sandy was aware that a genealogist could be retained in kinship cases, but, when she had previously inquired as to the costs, she was told "it was thousands of dollars and it was based on how much time they spent and how far you wanted them to go ... they'll go to Poland if you want them to." She believed that her own cost-effective efforts ^[FN17] achieved the same results as would have been produced by hiring a professional genealogist.

In kinship proceedings, claimants have the burden of proving kinship (see, e.g., Matter of Morris, 277 AD 211 [1950]), 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, [*7]the class of heirs may be "closed" ( see, e.g., Matter of Alao, NYLJ, March 19, 2002, at 18, col 6).

"In all cases involving pedigree and the distribution of intestate property, it is first necessary to establish the identity of the common ancestor and from that point to construct the true 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, 662 [1956], affd 3 AD2d 834 [1957]). 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).

The proof adduced is sufficient to establish that Frances died having been married only once, to Stanley, who predeceased her in 1983. Frances had no issue. Her parents, John D and Catherine, predeceased her in 1945 and 1929, respectively. Her only sibling, Joseph, also predeceased her, without leaving issue.

Thus, I find that the classes of spouse, children or their issue, parents and siblings or their issue are closed.

The subsequent classes of aunts, uncles and cousins, however, have problematic proof. In order for the Court to determine status on this level, a common ancestor must be identified (Matter of Tim, 6 Misc 2d 47 [1956], affd 8 AD2d 720 [1959]). "Until such identification is made, no family tree can be traced, and no judicial determination of pedigree can be made" (id., at 51).

It is only from that point on that a family tree can be constructed so as to allow parties an opportunity to successfully attach themselves (Matter of Dinzey, supra).

The family tree submitted in this kinship hearing identifies no maternal or paternal grandparents, the necessary common ancestors when cousins are claimants. Indeed, the testimony was consistent throughout this proceeding that no one ever knew, or even heard mentioned, the names of any grandparents.^[FN18] It was a widespread belief that the grandparents on both sides of Frances' family tree had lived in Poland, but no proof has been submitted as to any efforts made to identify them.

Without such common starting point, claimants' attempts to establish their status as cousins and to "close the class," i.e., prove that there are no other cousins, are to no avail, because a complete identification of all potential heirs has not been [*8]made.^[FN19] Nor can claimants rely on SCPA §2225 and the fact that more than three years have elapsed since Frances' death, because this statute requires that diligent and exhaustive efforts be made to locate all heirs. At a minimum, a reasonable effort to garner information is necessary to satisfy the proof required by this statute (see, Matter of Schrake, 129 Misc 2d 671 [1985]).

No such efforts have been proven here. If, in fact, diligent attempts to locate Polish family members were previously made,^[FN20] proof in that regard has not been offered in this kinship proceeding. In cases where the level of proof is insufficient, the courts have denied distributions to claimants under SCPA §2225, notwithstanding salutary guardian ad litem recommendations to the contrary (Matter of Brandenburg, NYLJ, December 18, 2002, at 29, col 1).

Therefore, I find that the objectants have failed to establish that they have conducted a diligent and exhaustive search for maternal grandparents and their issue, pursuant to SCPA §2225.

The proof offered with respect to the diligent and exhaustive search for Frances' paternal family members also falls short of the standard required in pedigree cases.

First, no corroborating documentary evidence was offered to buttress the oral testimony of the claimant's attorney concerning results of her search. For example, no letters were produced from the churches that she contacted to confirm that the "Dzieciuch" name was not found; no census records were produced; no testimony or affidavit from the local genealogist, Edward, attesting to the diligence of her search ^[FN21] was offered; no search for heirs was produced for other cities where John D may have [*9]lived.^[FN22]

The law is clear that oral statements in a kinship hearing are to be accompanied by documentary proof (Matter of Layh, 55 Misc 2d 92 [1967]; Matter of Wood, 170 Misc 877 [1939]; Matter of Logue, NYLJ, June 19, 1998, at 30, col 3). Where there is a complete absence of documentary evidence, there is insufficient evidence upon which the Court can made a kinship determination (30A Carmody-Wait 2d §169:48; Matter of Layh, id.)

Second, and equally important, claimants cannot rely on Sandy's bald assertion that it would be futile to conduct a search for Polish records in light of their probable destruction during previous wars. This opinion testimony is not supported by any proof, and, in fact, is contrary to my decision in Matter of Lelito, 20 Misc 3d 1120(A) [2008], where a Polish genealogist and a Polish parish priest testified about the sources of their kinship documents and the extensive system of record-keeping utilized in their country. The Polish records produced in that proceeding were invaluable in the determination of kinship, and were readily available with the efforts of a Polish genealogist.

Third, there was no proof submitted in this proceeding whatsoever to show that any attempts were made to locate any Polish documents, such as Frances' relatives' birth certificates, marriage certificates, etc. Without evidence of such endeavors, I cannot find that diligent and exhaustive efforts have been made to locate paternal heirs.

Therefore, based on the record before me, I find that the claimants have not met their burden of establishing their status as Frances' distributees by a preponderance of the evidence, and further, that diligent and exhaustive efforts have not been made to close the maternal and paternal classes of grandparents, aunts and uncles, and cousins. Consequently, no distribution to the claimants can be made at this time.

In the event that claimants are able to present additional competent evidence, a motion for such purpose can be made. If no such motion is made on or before December 12, 2008, the net estate, after payments of commissions, attorney's fee and guardian ad litem's fee shall be paid to the New York State Comptroller for the benefit of decedent's unknown heirs.

The guardian ad litem fee application shall be filed with this Court and served on the estate attorney and on the Attorney General's office on or before November 12, 2008, who will have until November 21, 2008, to serve and file any [*10]responding papers, after which I shall decide the fee request on the papers submitted.

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

DATED:BUFFALO, NEW YORK

October 17, 2008

BARBARA HOWE

Surrogate Judge