In re Judicial Settlement of the Accounts of Proceedings of Curtiss & de Billier

9 A.D. 285

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinions

Silkmae, S.:

The parties in interest unanimously consent to the resignation of Frederick de Billier as executor and trustee, and with equal unanimity oppose or regret tlie resignation of Frank Curtiss, the other executor and trustee. While the reasons given by the latter for relinquishing his trust are not such as would necessarily entitle him to be relieved, it seems unwise to compel an unwilling trustee to continue in office when his duties can be equally well performed by others.

Both of the trustees will be permitted to resign, but upon condition that they waive commissions as such trustees upon the principal of the trust estate.

It would not be fair to burden the beneficiaries with the payment of double commissions by reason of the action of trustees in resigning, dictated by them own convenience and business interests.

The matter of filling the office thus made vacant has been carefully considered by the court in view of the fact that some of the beneficiaries desire the appointment of a trust company as" trustee, and some dojnot.

There are certain matters, viz., the sale and disposition of the real estate and the investment of the proceeds, which seem to demand the appointment of an individual trustee, while the probable long duration. of the trust is urged as a reason for the appointment of a trust. company. The former reason seems the more potent.

The court will appoint Mr. Peter J. Siting, vice-president of the Citizens’ National Bank of Yonkers, as sole trustee, who will give a bond for the faithful performance of his trust with a surety company as surety. --

The beneficiaries will thus have the benefit of the management of a careful business man as well as the same guaranty as to the safety of the trust fund as is afforded by a trust company.

The point made by one of the parties, that an administrator with the will annexed should be appointed, is not well taken for the reason that the entire estate seems to have been administered by the executors, except the real estate, and that is devised to the trustees, and the power of sale is to them and their successors.

An examination of the account shows that assessments upon the real estate for local improvements have been charged to income instead of principal. This error should be corrected in the decree to be entered.

Full commissions upon income will be allowed to the retiring trustees; a supplemental account may be filed with the surrogate or a reference had to take the same.

. The decree will be entered upon notice to. all parties.