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Court Interpretes Last Will and Testament


This is an application made by Julia E. Paige to obtain a construction of the last will and testament of Fred Edey, who is deceased, as a way to determine the proper rates of commissions that are to be paid to the testamentary trustee under the will. This matter is being heard in the Surrogate’s Court of Suffolk County.

Case History

The Surrogate’s Court of Suffolk County in 1929, appointed Old Colony Trust Company from Boston, Massachusetts as the testamentary trustee of the estate of Fred Edey. Old Colony Trust Company has been acting as trustee since this time. From the years 1929 through 1954 the compensation rates as the trustee were calculated in accordance with the statutory rates of New York. Since 1954, the rates have been calculated using their own schedule of charges, which is some what higher than the New York statutory rates. Massachusetts law does not provide specific statutory rates.

A New York Probate Lawyer said the petitioner, who is a beneficiary of the trust, has requested that the compensation rates be based on the New York rates and is seeking to have the trustee repay the commissions that have been taken in excess of these statutory rates.

The trustee is requesting that the court determine which law should govern their compensation and claims that the compensation should be based on the applicable Massachusetts laws.

Case Discussion

The decedent passed away in August of 1926. He was a resident of Suffolk County in New York at the time of his passing. His will was executed in New York and admitted to probate in Suffolk County. His wife and son – in-law were named as the executors of the will and qualified and acted as such. Old Colony Trust Company was named as legally qualified to act as executor should the other two fail to be able to.

At the time, a Bronx Probate Lawyer said the Old Colony Trust Company declined becoming trustee for the account because they were not legally able to operate in New York at the time. Two other trustees were named. A decree was later made when Old Colony Trust Company was willing to take over the trust accounts. The two individual trustees resigned and Old Colony Trust Company took over.

Court Decision

When reviewing the facts of the matter, there were no objections to Old Colony Trust Company taking over the account. However, when closely looking at the will it shows that the decedent was clear that the corporation that was in charge of the account must be able to operate in New York.

Long Island Probate Lawyers said it is hard to ever determine the exact wishes of someone who has passed away. However, it is felt that it was important to the decedent in this case that the trustee conduct their business in the state of New York. The court thus feels that the laws of New York apply to the matter at hand.

It is for these reasons that the court rules that the amount of compensation should be based on the New York statutory laws and not the Massachusetts laws. As far as repaying the account back for the excess amount that has been taken in commissions, the court is not ordering this to be done. The new rates will take effect immediately.

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