In re the Estate of Lieberman

4 A.D.2d 683, 164 N.Y.S.2d 136, 1957 N.Y. App. Div. LEXIS 5212

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1957
• Status: Published

Opinion

In a proceeding by the beneficiary of a testamentary trust for a direction that a payment be made to him out of the principal of his trust, the appeal is by one of four executors from orders of the Surrogate’s Court, Westchester County, dated respectively February 4 and 26, 1957. The order of February 4, 1957 denied the motion of appellant and another executor to dismiss the petition. The order of February 26, 1957 granted the petition and directed the executors to pay the petitioner the sum of $10,000. Order dated February 4, 1957 affirmed, with $10 costs and disbursements to respondent, payable out of the estate. No opinion. Order dated February 26, 1957 reversed on the law, with $10 costs and disbursements to appellant, payable out of respondent’s trust fund, and matter remitted to the Surrogate’s Court for further proceedings not inconsistent with the views herein stated. The papers on file in the Surrogate’s Court, which this court may take into consideration as further evidence (Surrogate’s Ct. Act, § 309), reveal that there are infant remaindermen interested in the trust who were not cited as parties interested in the proceeding. They should have been cited (see Matter of Kilborn, 232 App. Div. 580; Matter of Johnston, 102 N. Y. S. 2d 544). Although this court cannot now pass on the merits of the direction to make the payment in question to the respondent, in view of the omission to cite the remaindermen, it perceives no other valid objection in the record to the direction that the payihent in question be made to the respondent. Nolan, P. J., Wenzel, Beldoek, Hallinan and Kleinfeld, JJ., concur.