In re the Accounting of Daniels

New York Supreme Court

In re the Accounting of Daniels

16 Misc. 2d 651, 190 N.Y.S.2d 444, 1958 N.Y. Misc. LEXIS 2671

DecidedSeptember 19, 1958

StatusPublished

This text of 16 Misc. 2d 651 (In re the Accounting of Daniels) 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 Daniels, 16 Misc. 2d 651, 190 N.Y.S.2d 444, 1958 N.Y. Misc. LEXIS 2671 (N.Y. Super. Ct. 1958).

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Opinion

Irving H. Saypol, J.

The submission is imperfect in this proceeding to settle the account of trustees of an inter vivos trust and for construction (Civ. Prac. Act, art. 79).

According to the indenture as last amended, upon the death of the settlor, Florence E. White, the corpus of the trust is divided, one half outright to her daughter, Dorothy, and the other half continuing in trust for the life of her son, Stamford, with remainder to his issue. In 1948 Stamford borrowed $30,000 from his mother on his promissory note which she then assigned to this trust. The note was secured by a collateral agreement and assignment, as security for the loan, of the son’s interest in another trust created by mother, daughter and son for their respective benefits. Although it was agreed that the security should follow the note, it was never reassigned. After the settlor’s death, in her will she forgave the substantial debts owing her by her children. The main question posed is whether or not this affected the debt which had been assigned to this trust.

The trustees take no position on the question. The daughter and son have filed memoranda contesting the proposition. It is argued for the daughter that the debt was not forgiven; for the son that his debt is absolved. Although it is said that appearances have been interposed for daughter and son, none such are on file. The attorney for the son arguing in his memorandum for absolution of the debt injects considerable factual narrative. But there are no answers interposed nor are the facts in affidavits. There is no proof of service of the son’s memorandum [652]*652on the daughter’s lawyer. Questions on the merits, too, are raised on behalf of the daughter but these are mingled in her attorney’s affidavit for his compensation in this proceeding. He objects for his client to the fee sought by the attorneys for the trustees and the commissions of the trustees are attacked. These matters, although incompetently raised are not answered.

The parties are directed within 20 days to put their pleadings in order by respondents’ answers and affidavits so that the issues will be delineated and properly raised and they may, particularly the trustees, supplement the present submission with memoranda.

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Irving H. Saypol, J.

The submission is imperfect in this proceeding to settle the account of trustees of an inter vivos trust and for construction (Civ. Prac. Act, art. 79).

According to the indenture as last amended, upon the death of the settlor, Florence E. White, the corpus of the trust is divided, one half outright to her daughter, Dorothy, and the other half continuing in trust for the life of her son, Stamford, with remainder to his issue. In 1948 Stamford borrowed $30,000 from his mother on his promissory note which she then assigned to this trust. The note was secured by a collateral agreement and assignment, as security for the loan, of the son’s interest in another trust created by mother, daughter and son for their respective benefits. Although it was agreed that the security should follow the note, it was never reassigned. After the settlor’s death, in her will she forgave the substantial debts owing her by her children. The main question posed is whether or not this affected the debt which had been assigned to this trust.

The trustees take no position on the question. The daughter and son have filed memoranda contesting the proposition. It is argued for the daughter that the debt was not forgiven; for the son that his debt is absolved. Although it is said that appearances have been interposed for daughter and son, none such are on file. The attorney for the son arguing in his memorandum for absolution of the debt injects considerable factual narrative. But there are no answers interposed nor are the facts in affidavits. There is no proof of service of the son’s memorandum [652]*652on the daughter’s lawyer. Questions on the merits, too, are raised on behalf of the daughter but these are mingled in her attorney’s affidavit for his compensation in this proceeding. He objects for his client to the fee sought by the attorneys for the trustees and the commissions of the trustees are attacked. These matters, although incompetently raised are not answered.

The parties are directed within 20 days to put their pleadings in order by respondents’ answers and affidavits so that the issues will be delineated and properly raised and they may, particularly the trustees, supplement the present submission with memoranda.

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Bluebook (online)

16 Misc. 2d 651, 190 N.Y.S.2d 444, 1958 N.Y. Misc. LEXIS 2671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-daniels-nysupct-1958.