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Court Holds Executrix was Negligent


Two men were business partners. In 1925, one partner filed a suit to compel his business partner to account for the properties of the partnership in his keeping. The partner who sued contended that his business partner diverted the profits of their business.

While the suit for accounting was pending, the business partner died who was sued died. He left a will which was probated. An executrix was appointed in the will and approved by the probate court. A couple stood as sureties for the fiduciary bond of the executrix.

Soon, the surety also died and he also left a will which was admitted into probate. In 1932 the surety’s estate was settled.

In the meantime, the business partner who sued got a favorable decision and he was awarded the sum of $107,877.35.

Eleven years after he began his suit for accounting to recover the profits which his deceased business partner had diverted for his own personal use, the man sued the executrix of his deceased business partner so that she will pay to him from the assets of his deceased business partner’s estate what profits his deceased business partner had diverted for his own personal use. A New York Probate Lawyer said the executrix of the deceased business partner never appeared in court and so a default judgment was entered against her. He was granted an award of $128,652.38.

By that time the estate of his deceased business partner had already been fully distributed but the executrix had not yet rendered her full accounting to the probate court. In 1941 the business partner filed two new suits against the administration by the executrix. Again, the executrix failed and refused to appear in the suit so a judgment was entered against her administration in the amount of $73,534.02.

Thirteen years later in 1957, the business partner died. His will was admitted into probate and letters testamentary were issued to his executor. A Sufflolk County Probate Lawyers said the executor of the business partner’s estate listed as assets of the estate the judgment awards which remain unpaid to the business partner against the executrix of his former (also deceased) business partner and his estate.

The executor filed a suit against the estate of the sureties for the estate and executrix of his former business partner’s estate.

The only question before the Court is whether or not this suit filed by the executor of the estate of the defrauded business partner should prosper seeing as it was filed after the lapse of decades from the time that the judgment awards were entered.

The Court held that there was a delay of thirteen years from the time that the default judgment against the executrix was entered in 1945. The Court also held that even if there was a delay, the suit by the executor cannot be barred because neither the executrix not the fiduciaries/sureties of his business partner’s estates have not yet filed an accounting and they have not repudiated the trust they voluntarily and freely entered into to distribute the estate of the deceased’s estate to satisfy all his debts.

The court held that the executrix was negligent in her administration of the estate of the deceased business partner. A Nassau County Probate Lawyer said she did not appear in court so that she can put up the defense that the actions were all barred by the statute of limitations. Once judgment had been entered against her, it has become final and executory. She can no longer put up the defense of statute of limitations now.

The motion to dismiss is denied.

If you were appointed as executor of a will, you must be diligent in protecting the estate and preserving it for the satisfaction of the debts of the deceased and for the benefit of the beneficiaries of the will. Once the estate you are administering is sued, you must appear and put up all the necessary defenses. Are you an executor of an estate? You need the advice and assistance of a Kings County Estate Administration Lawyer who can help you sort through the debts and receivables of the estate. A Kings County Estate Administration Attorney can help you file suits to collect the debts owed to the testator. A Kings County Estate Administration lawyer can also help you defend the estate from frivolous and unjust claims. At Stephen Bilkis and Associates, their Estate Administration lawyers are ready and willing to assist you. Call Stephen Bilkis and Associates, or better yet, come to any of their offices in Kings County and meet with their Estate Administration attorneys.

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