In re the Accounting of Central Hanover Bank & Trust Co.

203 Misc. 749, 117 N.Y.S.2d 48, 1952 N.Y. Misc. LEXIS 1990
CourtNew York Supreme Court
DecidedNovember 24, 1952
StatusPublished
Cited by1 cases

This text of 203 Misc. 749 (In re the Accounting of Central Hanover Bank & Trust Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Accounting of Central Hanover Bank & Trust Co., 203 Misc. 749, 117 N.Y.S.2d 48, 1952 N.Y. Misc. LEXIS 1990 (N.Y. Super. Ct. 1952).

Opinion

Hofstadter, J.

The petitioner, now known as the Hanover Bank, has instituted this proceeding for the settlement of its accounts as trustee under a trust created on March 28, 1921, by Walter S. Schlussel as settlor. Shortly after the commencement of the present proceeding the settlor himself brought one for the revocation of the trust, asserting that the same had been effectively revoked by an instrument executed by him, fortified by the written consents of his wife, with him a life beneficiary, of his brother and sister and of the Attorney-General of the State of New York, as the representative of indefinite and uncertain charitable beneficiaries, the remaindermen. Following this court’s decision upholding the efficacy of the Attorney-General’s consent given on behalf of the charitable beneficiaries (Matter of Schlussel [Central Hanover Bank & Trust Co.], 195 Misc. 1008), a final order was made declaring the trust to have been revoked on January 11, 1949, and directing the trustee to file in the pending intermediate accounting proceeding its final account by supplementing the accounts previously filed. The trustee has complied with such order and accordingly the present proceeding has become one for a final accounting of the petitioner as trustee of the revoked trust.

Three accounts are before the court,- the first covering the period from March 28, 1921, the date of the inception of the trust, to July 3, 1940; the second for the period from July 3, 1940, to November 18, 1948; and the third for the period from November 18, 1948, to June 22, 1949. For convenience, that covering the period from 1921 to 1940 will be referred to as the first account. Answers with objections were filed to the accounts by the settlor and his wife (referred to as the Schlussels) and by the Attorney-General on behalf of the unnamed charitable beneficiaries. The court appointed Harold S. Lazar, Esq., Referee to take testimony and report with his opinion on the issues so raised and the Referee’s report, based on extensive examinations before trial, testimony and exhibits, is now before the court for action. The Referee in a comprehensive and [753]*753illuminating opinion recommends the dismissal of all the objections and, though the adoption of this recommendation would necessarily exonerate the trustee, the latter nevertheless takes exception to certain findings of the Referee. The objectants on their part rest on some of the Referee’s findings but challenge his ultimate conclusions. The questions posed for decision are important.

The first account was prepared by the trustee in the summer of 1940. This is a formal verified account, supported by completely detailed, itemized schedules in the form in which a trustee’s accounting is usually presented to the court for approval. Copies of this account were submitted to Walter S. and Violet C. Schlussel, the settlor and his wife, on August 22, 1940. Prefixed to this account was a release agreement approving it, discharging the trustee and waiving a judicial accounting. On January 29,1941, the Schlussels executed and acknowledged the release agreement.

Many of the present objections interposed by the Schlussels and joined in by the Attorney-General are directed at investments shown in this first account. Some of these investments also appear in the two later accounts. The trustee argues that the release concludes the Schlussels on all the transactions recorded in the first account and also forecloses any right again to assert the same objections to these transactions merely because the investments with which they were concerned still appeared in the later accounts as on hand or otherwise to have been dealt with. The Schlussels challenge the binding effect of the release on the ground that the trustee failed to make that full disclosure which the law demands. At the very threshold of our inquiry we must pass on these conflicting contentions, for, obviously, the determination of many of the issues on the accounting hinges on the validity of the release.

It is not open to question that a release given by a cestui to a trustee, based upon an account and complete disclosure of everything material which has occurred during the period of the account, is a final approval which forbids later complaint with respect to the items embraced in the account (Matter of Schoenewerg, 277 N. Y. 424). In the absence, however, of such full and frank disclosure, the release does not bar inquiry into the trustee’s stewardship or the imposition of liability for breach of his fiduciary duty (Adair v. Brimmer, 74 N. Y. 539, 553; Matter of Ryan, 291 N. Y. 376, 417). Was the Schlussel release tainted with this infirmity? This inquiry leads to a study of the relevant facts.

[754]*754It is undisputed that during its administration of the Schlussel trust the trustee invested some of the trust funds in part interests in bonds and mortgages, commonly known as participations, where the loans had been made and the bonds and mortgages held by the trustee. Under subdivision 7 of section 188 of the Banking Law (in effect from 1917 to,1936), a trust company was permitted to invest trust funds in such mortgage participations, but was required promptly to notify each income beneficiary of full age and sound mind of the fact that such investment has been made ”. The objeetants claim that the trustee failed to give the required statutory notice of its investment in the mortgage participations and that this failure makes the investments themselves unlawful.

The trustee maintained an account known as Trust No. 1 ” or “ T-l ” through which it conducted its mortgage participation operations. It paid for the mortgages with its funds and held the bonds and mortgages in its name. On the acquisition of a mortgage it was placed in the T-l ” account, from which participations in varying amounts were allotted and sold to trusts of which the petitioner was trustee, at par and interest. Participations were also repurchased by the trustee from trusts and afterwards sold to other trusts administered by the trustee as occasion demanded. Usually these transactions passed through the “ T-l ” account, though at times participations in mortgages acquired by the trustee were placed directly in the trusts and also sold from one trust to another under its administration, without clearing through the “ T-l ” account. The record ownership of the mortgages themselves was, however, in all instances, in the trustee.

From this recital it is clear that the trustee’s investment of the Schlussel trust in participations in mortgages paid for with the trustee’s funds and held in the trustee’s name constituted self-dealing (Matter of Hildreth, 274 App. Div. 611, affd. 301 N. Y. 705; Matter of Ryan, 291 N. Y. 376, supra). True, it was a form of self-dealing permitted by statute, if carried out as prescribed by the statute. But, it was self-dealing none the less. The 1941 release executed by the Sehlussels could not give the trustee immunity from liability incurred through such self-dealing unless the same was frankly disclosed to them. ‘ ‘ If dual interests are to be served, the disclosure to be effective must lay bare the truth, without ambiguity or reservation, in all its stark significance.” (Wendt v. Fischer, 243 N. Y. 439, 443.) This rule has been enforced uniformly in determining [755]*755the effect of a release or of a decree settling a trustee’s account (Matter of Lewisohn, 294 N. Y. 596, 608-609; Matter of Ryan, supra, pp. 416-417; Matter of Long Is.

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203 Misc. 749, 117 N.Y.S.2d 48, 1952 N.Y. Misc. LEXIS 1990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-central-hanover-bank-trust-co-nysupct-1952.