In re the Estate of Corya

148 Misc. 2d 723, 563 N.Y.S.2d 581, 1990 N.Y. Misc. LEXIS 589
CourtNew York Surrogate's Court
DecidedJune 4, 1990
StatusPublished
Cited by3 cases

This text of 148 Misc. 2d 723 (In re the Estate of Corya) 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 Corya, 148 Misc. 2d 723, 563 N.Y.S.2d 581, 1990 N.Y. Misc. LEXIS 589 (N.Y. Super. Ct. 1990).

Opinion

OPINION OF THE COURT

Ernest L. Signorelli, S.

In this executors’ accounting proceeding, the copetitioners, the attorney-draftsman and the Bankers Trust Company, are requesting that the court fix and determine the fee and disbursements of the said attorney’s law firm, in the sum of $250,000, as well as fix and allow their combined commissions, in the total sum of $1,634,230.50. In conjunction therewith, counsel have requested that a hearing be held with respect to their application for fees and disbursements.

On the hearing date no one appeared in opposition to the relief requested by the petitioners. Significantly, the Attorney-General, although advised of the hearing, and the purpose of the court in conducting same, chose not to participate, and [725]*725failed to make an appearance on the scheduled hearing date. In this regard, this Attorney-General has consistently refused and failed to fulfill his responsibilities to the people of this State as they relate to Surrogate’s Court matters. Nevertheless, despite the absence of objections to the relief sought, the court has the inherent and statutory power to supervise the charging of fees for legal services rendered (Gair v Peck, 6 NY2d 97 [1959]; Matter of First Natl. Bank v Brower, 42 NY2d 471, 474 [1977]; cf, Judiciary Law §§ 53, 90; art 15), and to limit compensation to such sum as appears to be just and reasonable under the circumstances. In fact, what constitutes reasonable compensation has long been recognized as a proper exercise of discretion and well within the scope of the court’s authority. (Matter of Lanyi, 147 AD2d 644 [2d Dept 1989]; Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988].)

The decedent died, testate, on the 7th day of April 1987, survived by one grandnephew. Pursuant to the pertinent provisions of her last will and testament, dated October 6, 1979, the decedent devised and bequeathed her entire estate, amounting to approximately $46 million on the date of her death, to two charitable organizations, the American Cancer Society, Inc., and Memorial Hospital for Cancer and Allied Diseases of New York, and nominated and appointed her attorney, John J. Barrett, and the Bankers Trust Company of New York, as the executors to act thereunder.

On the 18th day of June 1987, the decedent’s last will and testament was admitted to probate, and letters testamentary issued thereon to the nominated cofiduciaries, pursuant to a decree which, in pertinent part, directed the executors to file an account with the court within a prescribed period of time, and prohibited any legal fees and/or commissions from being paid without further court order.

The said decretal paragraph was incorporated in the probate decree pursuant to a local court rule which this court promulgated on October 1, 1986. The need for this type of remedial court rule governing attorney-fiduciaries became apparent as a result of an alarming increase in estates involving attorney-fiduciaries and the abuses resulting from this relationship thereby necessitating the court’s intervention.

Upon review of the petitioners’ account, and the pleadings and affidavits submitted in support of the relief sought, the court, at counsel’s request, scheduled the matter for a hearing, and afforded all persons interested in the estate the opportu[726]*726nity to appear and be heard thereat. In addition, the court directed counsel, to produce, in advance of the hearing, certain specified documents, and ordered that the member of the corporate cofiduciary’s trust and estates department, who handled this estate’s account, as well as a legal assistant employed by the attorney cofiduciary’s law firm, be present at the hearing, prepared to testify.

The decedent was born in 1888. She earned the substantial part of her fortune as a result of her marriage to her first husband in 1930, with whom she ran a fragrance business in France. In 1940, the decedent and her husband came to New York, where they continued their business. It was at or about this time that they opened an account with the Bankers Trust Company of New York, which continued throughout her lifetime to serve her banking needs and the preparation of her income tax returns.

In 1941, the decedent’s first husband passed away. In or about 1946, she married her second husband. Her attorneys at this time were Sullivan and Cromwell, whom she retained to prepare a prenuptial agreement and, in 1950, a will.

In 1962, the decedent retained John Keating to replace Sullivan and Cromwell as her attorney. Subsequent to the death of Mr. Keating in 1967, and continuing until the date of her death in 1987, the attorney-fiduciary, who was introduced to her by the said John Keating, acted as her counsel performing various legal services for her. In a letter dated July 11, 1969, the attorney-fiduciary informed the decedent that in line with his firm’s practice, she would derive a benefit from a reduced billing rate for lifetime services rendered on her behalf, with the expectation that uncompensated time would be remunerated via the legal fees which the firm would charge as counsel for her estate. Specifically the contents of this correspondence state, in pertinent part, as follows:

"Dear Madeleine * * *

"You have asked me to send you bills for the work I have done for you. They are enclosed herewith.

"These are in line with our practice, which I believe is almost universal, to keep charges for wills at a minimum in the expectation that uncompensated time will be covered by the charge to be made for the probate of the will, and the administration of the estate, a charge which will be deductible for estate tax purposes so that, in substantial measure, it will be borne by the government”.

[727]*727Pursuant to the pertinent provisions of the testamentary instrument dated August 17, 1968, the attorney-fiduciary was nominated to serve as executor, together with the decedent’s husband, and the Bankers Trust Company of New York. He stated that his appointment as cofiduciary with the decedent’s husband was at the decedent’s suggestion. However, admittedly it was he who suggested to her that she nominate the Bankers Trust Company as a cofiduciary.

In her prior wills for the years 1950, 1962 and 1964, the said bank had been named as an alternate executor. Over the years, the bank’s personnel made a concerted effort to "cultivate” the decedent with the hopes and expectations of being appointed as her primary fiduciary. This effort is reflected in various internal bank memoranda, as follows:

Letter, dated October 19, 1961

"Dear Mrs. Corya: * * *

"I do want you to know that our bank considers you * * * as among our very important customers and holds you both in the highest esteem. The sad expression on my face which you said you saw was only because of your naming an individual as sole trustee * * * I would have the same concern in regard to any individual you named as sole trustee * * * and no concern whatsoever had you named any corporate trustee such as a bank. I am enclosing a small 12 page book which I wish you would read at your convenience. This book explains better than I can in a letter why a corporate trustee is a better choice than an individual

"Harold J. Merz "Tax Section”.

Memorandum, dated December 4, 1967

Madeleine Daltroff Corya

"Later in 1961 we had some discussions with Mr.

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Bluebook (online)
148 Misc. 2d 723, 563 N.Y.S.2d 581, 1990 N.Y. Misc. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-corya-nysurct-1990.