In re the Estate of Hutchinson

New York Surrogate's Court

In re the Estate of Hutchinson

45 Misc. 2d 712, 257 N.Y.S.2d 358, 1965 N.Y. Misc. LEXIS 2144

CourtNew York Surrogate's Court

DecidedMarch 23, 1965

StatusPublished

Cited by2 cases

This text of 45 Misc. 2d 712 (In re the Estate of Hutchinson) 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.

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In re the Estate of Hutchinson, 45 Misc. 2d 712, 257 N.Y.S.2d 358, 1965 N.Y. Misc. LEXIS 2144 (N.Y. Super. Ct. 1965).

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Opinion

John D. Bennett, S.

Motion to resettle the decree of November 30,1964, on the ground that certain statements therein inaccurately state the true facts, is granted to the extent that the word “ executor ” in line 3 of page 14 of the decree is corrected to read 1 ‘ trustee ’ ’, and is in all other respects denied.

There appears to be no question but that the order of December 31,1952, permitted Leonard W. Hall to resign as trustee only and not as executor. Once a fiduciary qualifies and assumes the administration of an estate, he cannot resign except by following the procedure governing the resignation of fiduciaries as outlined in sections 102 and 103 of the Surrogate’s Court Act (Matter of Busto, 173 Misc. 25, affd. 258 App. Div. 980).

Subdivision 6 of section 20 of the Surrogate’s Court Act gives the Surrogate power to modify or resettle a decree or order of

[713]*713liis court because of a “ clerical error The “ clerical error ” referred to means an arithmetical error or an inadvertent mistake of fact, but does not include a mistake of law or other substantial change not due to an inadvertent mistake of fact (Matter of Heller, 33 Misc 2d 798, and cases cited). The only clear misstatement of fact in the decree is the reference to Mr. Hall’s resignation as executor rather than as trustee. The other requested changes do not appear to be so clear and simply a matter of clerical error as would warrant a correction at this time.

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John D. Bennett, S.

Motion to resettle the decree of November 30,1964, on the ground that certain statements therein inaccurately state the true facts, is granted to the extent that the word “ executor ” in line 3 of page 14 of the decree is corrected to read 1 ‘ trustee ’ ’, and is in all other respects denied.

There appears to be no question but that the order of December 31,1952, permitted Leonard W. Hall to resign as trustee only and not as executor. Once a fiduciary qualifies and assumes the administration of an estate, he cannot resign except by following the procedure governing the resignation of fiduciaries as outlined in sections 102 and 103 of the Surrogate’s Court Act (Matter of Busto, 173 Misc. 25, affd. 258 App. Div. 980).

Subdivision 6 of section 20 of the Surrogate’s Court Act gives the Surrogate power to modify or resettle a decree or order of

[713]*713liis court because of a “ clerical error The “ clerical error ” referred to means an arithmetical error or an inadvertent mistake of fact, but does not include a mistake of law or other substantial change not due to an inadvertent mistake of fact (Matter of Heller, 33 Misc 2d 798, and cases cited). The only clear misstatement of fact in the decree is the reference to Mr. Hall’s resignation as executor rather than as trustee. The other requested changes do not appear to be so clear and simply a matter of clerical error as would warrant a correction at this time.

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45 Misc. 2d 712, 257 N.Y.S.2d 358, 1965 N.Y. Misc. LEXIS 2144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-hutchinson-nysurct-1965.

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