In re the Estate of Bender

New York Surrogate's Court

In re the Estate of Bender

56 Misc. 2d 585, 289 N.Y.S.2d 822, 1968 N.Y. Misc. LEXIS 1506

DecidedMay 8, 1968

StatusPublished

This text of 56 Misc. 2d 585 (In re the Estate of Bender) is published on Counsel Stack Legal Research, covering New York Surrogate's 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 Estate of Bender, 56 Misc. 2d 585, 289 N.Y.S.2d 822, 1968 N.Y. Misc. LEXIS 1506 (N.Y. Super. Ct. 1968).

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Opinion

John D. Bennett, J.

The decedent and her husband during her lifetime obtained a loan from a trust company, the executor herein. The executor applies for approval to satisfy said loan out of the proceeds of the estate. In consideration thereof, the decedent’s husband has agreed, pursuant to a waiver executed by him on March 15,1968, to waive his right to have the fiduciary invade the principal on his behalf. The executor is authorized to make said payment.

While there is no objection raised by any of the parties, evidently due to the agreement reached by same, the fiduciary did not immediately seek permission to pay the estate’s obligation and thereby prevent interest from running on the debt owed to it. While there may have been some question as to the proper procedure for a fiduciary to adopt in the past, SCPA 1805 now specifically provides for an ex parte procedure for a fiduciary to prove the validity of its claim and authorize the payment thereof, thereby preventing interest from continuing (see McKinney’s Cons. Laws of N. Y., Book 58 A, Practice Commentary to SCPA 1805). Fiduciaries should utilize the procedure afforded under SCPA 1805 in the future in order to obviate the possibility that they will be surcharged for not having their own claim satisfied as early as possible.

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John D. Bennett, J.

The decedent and her husband during her lifetime obtained a loan from a trust company, the executor herein. The executor applies for approval to satisfy said loan out of the proceeds of the estate. In consideration thereof, the decedent’s husband has agreed, pursuant to a waiver executed by him on March 15,1968, to waive his right to have the fiduciary invade the principal on his behalf. The executor is authorized to make said payment.

While there is no objection raised by any of the parties, evidently due to the agreement reached by same, the fiduciary did not immediately seek permission to pay the estate’s obligation and thereby prevent interest from running on the debt owed to it. While there may have been some question as to the proper procedure for a fiduciary to adopt in the past, SCPA 1805 now specifically provides for an ex parte procedure for a fiduciary to prove the validity of its claim and authorize the payment thereof, thereby preventing interest from continuing (see McKinney’s Cons. Laws of N. Y., Book 58 A, Practice Commentary to SCPA 1805). Fiduciaries should utilize the procedure afforded under SCPA 1805 in the future in order to obviate the possibility that they will be surcharged for not having their own claim satisfied as early as possible.

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Bluebook (online)

56 Misc. 2d 585, 289 N.Y.S.2d 822, 1968 N.Y. Misc. LEXIS 1506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-bender-nysurct-1968.