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Court Decides Will and Trust Dispute


A resident of Connecticut died in 1936. He left a will duly admitted for validation in the State of Connecticut. He created a testamentary trust providing payment of the one third of the income to a life beneficiary, his nephew. The nephew bearing the same name as his uncle is a resident of Cattaraugus County, New York. The instant proceeding is brought in the Surrogate’s Court, Cattaraugus County in connection with the administration of the estate of the deceased nephew. The proceeding follows proceedings earlier brought in the validation court of Fairfield County, State of Connecticut referable to intermediate and final accountings of the testamentary trustee, a Chemical Bank.

A petition of a trust company for the determination of the validity and enforceability of claim of a chemical bank to the last will and testament of the man was filed. New York Probate Lawyers said that the trust company was the appointed representative for the administration of the estate and the said chemical bank was the beneficiary of a large trust set up by a will. The facts in support of the petition have been agreed to by opposing counsel in a written condition. It states that the man properly accepted to validate his will in the state of his residency.

The life beneficiary of a man died and with his death, payments of income terminated as well as the trust. The remaining principal of the trust was directed to be paid over to the designated remaindermen.

During the operation of the trust, Nassau Probate Lawyers said that the chemical bank filed intermediate accountings. In an account filed, commissions on income were claimed by the chemical bank and the same were allowed in an amount which is not set forth in the requirement of facts. For reasons not stated, it positively appears, however that only a portion of the payment allowed on the accounting were paid by the chemical bank. Some were allowed to be remained unpaid. In addition, all income in the hands of the trustee was paid over to the life beneficiary thus, depleting any source of cash in the hands of the trustee for payment of the allowed. The chemical bank again, paid over all trust income then on hand to the beneficiary, retaining no dues supposedly for the period.

Discovering its failure to collect the noted allowed and allowable payments, the chemical bank contained in its final account, filed to the court of the deceased residency. After setting forth various calculations for receiving, it concludes that the due payment plus taxes will be charge to the properties of the man.

Under the set facts, the court considered the discrepancy between the amount of commissions presently claimed and the amount of commissions purportedly allowed by the deceased’s court of residency as insignificant. Further, it appears from the set facts that the claim for a tax summary letter supposedly allowed under the court order is not asserted by the claimant. Whether it has been abandoned or waived does not positively appear and it is sufficient that it has not been asserted.

The attorney for the trustee concedes in his memorandum that the order of the court, with authority to supervise asset administration, is not in such form as to be an enforceable judgment in the state. He concedes that a suit in their superior court would be required to reduce the order of the court with authority to supervise asset administration. The court review of the applicable law supports the statements of the trustee’s attorney.

In adopting the procedures of the uniform act to the case for the decision, it appears that a filing of an authenticated copy of the order of the man’s residency court with any county clerk in the state of New York, together with the required affidavit stating the amount due and other required information would give such order the status of a decision of the Supreme Court of the State of New York immediately enforceable by execution. Under the terms of the act the foregoing result would apply despite the fact that the order of the other court, without additional suit and reduction to judgment in the superior court is unenforceable in that state. In brief, the provisions of the uniform act would improve the effect and finality of the order of the man’s residency court over that accorded it in the state of rendition. Whether or not the legislature of the State of New York envisioned any such peculiar result, it has, nevertheless, clearly provided for it.

Brooklyn Probate Lawyers said that reassessment by the legislature of the act and possible amendment thereof might be in order.

Based on records, the uniform act then provides in detail for the effect of a foreign judgment, decree or order filed in accordance with the recited provisions for the effect of a foreign judgment, decree or order filed in accordance with the recited provisions.

The order of the man’s residency court has been submitted as a part of the set facts. After reciting that an account of the trustee had been revealed to the court for payment, it ordered a hearing to be held on the payment of the account. It further ordered that notice of such hearing be given both by publishing a copy of this order in a newspaper having a circulation in said district, and by mailing a copy of the order, postage prepaid, to the beneficiaries under the trust to the legal representative of those who have died and other at their last known addresses. In addition, it is important to note that the trust company, as legal representative did not appear in person or through an attorney in any proceeding in the man’s residency court relative to the accountings of the trustee. The set facts indicate clearly that the representative bank was in default of appearance in any and all such proceedings.

It is not claimed or argued that the New York legal representative of the properties committed a tortuous act either within or without the State of the deceased man. The asserted legal basis for liability of the legal representative for the return of trust income voluntarily paid, but alleged to be subject to trustee’s commissions is unjust improvement. The proceedings giving rise to the asserted liability is grounded in the areas of equity. Further, it is not asserted that the New York legal representative was engaged in business in the State of the deceased, nor in interstate commerce. Similarly, it appears that the accounting proceeding did not involve real property within the State of the deceased.

The court holds that the applicable principle of law of the State of New York in force at the death of the man was that the payment of all trust income without condition of trustee’s commissions on such income constituted a waiver of commissions on the income. The court further holds that the trust in issue was made subject to the principle of law.

Given that it is factually set that the trustee did pay out all income without the condition of commissions. The decision of the court is that the claim of the trustee for the return of commissions is invalid, an order of the court of the man’s residency to the contrary notwithstanding. But, such order is void for the want of jurisdiction. Comity should not be accorded an order which improperly construes the applicable New York law. The claim of the trustee is rejected. Decision is for the executor.

It is important that we choose who to entrust with our properties with. Legal issues arise when we are not aware whether or not our legal obligations are taken cared off. If you or anyone you know get into this kind of situation, call the New York Estate Administration Lawyers at Stephen Bilkis and Associates.

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