The two cases below are about probate proceedings.
Probate Lawyers said in a probate proceeding to judicially settle the final accounts of an estate, the successor administrator, KG, appeals, as limited by his brief, from so much of a decree of the Surrogate’s Court, Kings County (Lopez Torres, S.), dated December 3, 2009, as, after a nonjury trial, denied his objections to and judicially settled the final account of KTLG, the original administrator of the estate, and granted the objections of Wendy Walton to his amended final account.
In an accounting proceeding, the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate (see Matter of Tract,284 AD2d 543; Matter of Schnare,191 AD2d 859, 860). While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete (Matter of Tract, 284 Ad2d at 543; see Matter of Campione,58 AD3d 1032, 1034; Matter of Schnare, at 860).
A New York Estate Lawyer said that on appeal from a decree entered after a nonjury trial, this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the [Surrogate] had the advantage of seeing the witnesses (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499, quotingYork Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134;Matter of Verdeschi,63 AD3d 1084, 1086;We’re Assoc. Co. v Rodin Sportswear, 288 AD2d 465;DiBruno v Abrams, 208 AD2d 672, 674).
New York Probate Lawyers said that upon our review of the record, we find no basis to set aside the determination of the Surrogate that the successor administrator, KG, failed to come forward with credible evidence to establish that the final account of the original administrator, KTLG, was inaccurate or incomplete.
The parties’ remaining contentions are without merit.
Accordingly, it was ordered that the decree is affirmed insofar as appealed from, with one bill of costs payable by the appellant personally.
New York City Probate Lawyers said the second case is about construction proceeding, petitioner seeks a determination that the proceeds of sale of certain real property are presently distributable to the beneficiaries named in the will. Testatrix died on September 13, 1954 leaving a will dated October 18, 1941 which was subsequently admitted to probate. She left her surviving two children, Anna, the petitioner herein, and Daniel who died intestate in 1957 survived by a spouse and issue.
Under article third of the will, testatrix devised a specific parcel of improved real property to her trustees in trust to furnish my daughter, Anna with one of the apartments in said premises rent free during her lifetime, and to pay the balance of the net income therefrom in equal shares to Anna and Daniel, with Daniel’s share of the income payable to his issue if he predeceased Anna. Upon the death of Anna it was provided that the realty become part of the residuary estate, which passes in equal shares to Daniel and Anna, with gifts over if either failed to survive testatrix. The will nominated them as co-executors and trustees, but Daniel renounced his appointment and Anna has acted in both capacities.
It is alleged that in 1964 Anna vacated the apartment provided her by the will, and that in 1965, because of the continued vacancy of the building and the general deterioration of the surrounding area, the trust realty was sold with the consent of the interested parties. In this proceeding the court must determine whether the proceeds of the sale are distributable outright to the persons interested therein or are to be held in further trust pursuant to the terms of the will. No objection has been raised by any of the interested parties to the petitioner’s proposed outright distribution.
The court initially finds that a valid trust was created by article third of the will (Matter of Goldenberg, 27 Misc.2d 425, 213 N.Y.S.2d 225). When, however, the purpose for which a trust is created has been accomplished or has become impossible of accomplishment, or if continuance of the trust is unnecessary to carry out the purpose of the trust, termination may be ordered before the period fixed by the creator (4 Scott on Trusts, 3d Ed., § 335). It is evident from the language of the will in question that the primary and dominant purpose of the testatrix was to furnish Anna with an apartment in the family home rent free for life. Once the apartment was vacated by Anna and the property thereafter sold, the necessity for continuance of the trust ceased. Under these circumstances, and bearing in mind the fact that Anna is the trustee, and together with her brother’s estate the only parties interested in the fund, there is no compelling reason why the trust should be continued. Additionally, the administration of such a trust would be economically unsound in view of the limited monies available for the funding thereof.
In the light of the purpose for which the trust was intended, and the facts and circumstances present herein, the court holds that the trust created by article third of testatrix’ will has terminated and the proceeds realized from the sale of the real property are presently distributable in equal shares to testatrix’ daughter, Anna, and the estate of testatrix’ son, Daniel (cf. Real Property Law, § 109, now EPTL 7–2.2).
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