In re the Estate of Brunner

Appellate Division of the Supreme Court of New York

In re the Estate of Brunner

26 A.D.2d 838, 274 N.Y.S.2d 414, 1966 N.Y. App. Div. LEXIS 3172

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 1966

StatusPublished

Cited by1 cases

This text of 26 A.D.2d 838 (In re the Estate of Brunner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York 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 Brunner, 26 A.D.2d 838, 274 N.Y.S.2d 414, 1966 N.Y. App. Div. LEXIS 3172 (N.Y. Ct. App. 1966).

Pincite

Opinion

— In a proceeding to compel an accounting with respect to a testamentary trust, the trustee’s executors and trustees (who were made parties after the trustee’s death) appeal from a decree of the Surrogate’s Court, Kings County, entered [839]*839February 4, 1966, which inter alia surcharged them in their representative capacity in the amount of $2,000 plus interest for the benefit of petitioner, the cestui que trust under the trust. Decree affirmed, with costs to petitioner, payable out of the funds of the estate of the deceased trustee, Joseph B. Kaufman. Before he died in 1963, the trustee submitted an affidavit in this proceeding, asserting only the claim that he had never received the $2,000 corpus from the testatrix’ executrix. Appellants, who are the representatives of the trustee’s estate, rest on the assertion that, since neither the trustee nor his estate ever received the legacy, no surcharge may be imposed. The record establishes prima facie that the testatrix’ estate was solvent and that it had sufficient moneys to pay over the $2,000. It is even more certain that the trustee qualified as such, filed his oath and designation with the Clerk of the Surrogate’s Court and then did nothing to acquire possession of the trust res. The attorney for the testatrix’ executrix deposed that he had advised his client to pay over the trust money and that she had refused because she wanted to handle the estate informally. Once the trustee accepted his designation, responsibilities in respect to the trust sprung into being. The duty to reduce the trust res to his possession was first in order. His failure to do anything in pursuit of this duty justified imposition of the surcharge (Matter of Wagner, 257 App. Div. 972; Matter of Adams, 149 Misc. 289; see 4 Jessup-Redfield, Law and Practice in the Surrogates’ Courts, § 3869, pp. 734—735; 3 Warren’s Heaton, Surrogates’ Courts, § 232, par. 1 [1965 Supp.]). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur, [49 Misc 2d 139.]

Free access — add to your briefcase to read the full text and ask questions with AI

— In a proceeding to compel an accounting with respect to a testamentary trust, the trustee’s executors and trustees (who were made parties after the trustee’s death) appeal from a decree of the Surrogate’s Court, Kings County, entered [839]*839February 4, 1966, which inter alia surcharged them in their representative capacity in the amount of $2,000 plus interest for the benefit of petitioner, the cestui que trust under the trust. Decree affirmed, with costs to petitioner, payable out of the funds of the estate of the deceased trustee, Joseph B. Kaufman. Before he died in 1963, the trustee submitted an affidavit in this proceeding, asserting only the claim that he had never received the $2,000 corpus from the testatrix’ executrix. Appellants, who are the representatives of the trustee’s estate, rest on the assertion that, since neither the trustee nor his estate ever received the legacy, no surcharge may be imposed. The record establishes prima facie that the testatrix’ estate was solvent and that it had sufficient moneys to pay over the $2,000. It is even more certain that the trustee qualified as such, filed his oath and designation with the Clerk of the Surrogate’s Court and then did nothing to acquire possession of the trust res. The attorney for the testatrix’ executrix deposed that he had advised his client to pay over the trust money and that she had refused because she wanted to handle the estate informally. Once the trustee accepted his designation, responsibilities in respect to the trust sprung into being. The duty to reduce the trust res to his possession was first in order. His failure to do anything in pursuit of this duty justified imposition of the surcharge (Matter of Wagner, 257 App. Div. 972; Matter of Adams, 149 Misc. 289; see 4 Jessup-Redfield, Law and Practice in the Surrogates’ Courts, § 3869, pp. 734—735; 3 Warren’s Heaton, Surrogates’ Courts, § 232, par. 1 [1965 Supp.]). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur, [49 Misc 2d 139.]

Cite This Page — Counsel Stack

Bluebook (online)

26 A.D.2d 838, 274 N.Y.S.2d 414, 1966 N.Y. App. Div. LEXIS 3172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-brunner-nyappdiv-1966.

Opinion

Related

Cite This Page — Counsel Stack