In re the Estate of Melcher

Appellate Division of the Supreme Court of New York

In re the Estate of Melcher

54 A.D.2d 830, 388 N.Y.S.2d 97, 1976 N.Y. App. Div. LEXIS 14577

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

DecidedNovember 4, 1976

StatusPublished

Cited by2 cases

This text of 54 A.D.2d 830 (In re the Estate of Melcher) 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 Melcher, 54 A.D.2d 830, 388 N.Y.S.2d 97, 1976 N.Y. App. Div. LEXIS 14577 (N.Y. Ct. App. 1976).

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Opinion

Decree of the Surrogate’s Court, New York County, entered May 6, 1976, unanimously affirmed, without costs and without disbursements. Essentially, this appeal represents an attack upon a stipulation of settlement of a proceeding involving the question of the testator’s competence at the time that her will was made. Each side was possibly vulnerable to a certain extent and a jury had been sworn to try the issues tendered. The stipulation was advantageous to all concerned. The Surrogate was correct in holding that the fiduciary named in an earlier will, and superseded in the later one, had standing to object (SCPA, § 1410). Implicit in the decree is an interpretation by the Surrogate of a clause in the stipulation in respect of the fixation of allowances for services rendered; obviously it was read to mean that he was to fix the fees. We can find no fault either with that interpretation or the allowances set thereunder. And, by the same token, those parties and counsel who have argued for that interpretation are bound by it to the extent that no separate consideration can be given to the cross appeal which seeks an increase of their allowances. We sustain the stipulation and therefore affirm in toto. Concur&emdash;Markewich, J. P., Kupferman, Silverman, Capozzoli and Lane, JJ.

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Decree of the Surrogate’s Court, New York County, entered May 6, 1976, unanimously affirmed, without costs and without disbursements. Essentially, this appeal represents an attack upon a stipulation of settlement of a proceeding involving the question of the testator’s competence at the time that her will was made. Each side was possibly vulnerable to a certain extent and a jury had been sworn to try the issues tendered. The stipulation was advantageous to all concerned. The Surrogate was correct in holding that the fiduciary named in an earlier will, and superseded in the later one, had standing to object (SCPA, § 1410). Implicit in the decree is an interpretation by the Surrogate of a clause in the stipulation in respect of the fixation of allowances for services rendered; obviously it was read to mean that he was to fix the fees. We can find no fault either with that interpretation or the allowances set thereunder. And, by the same token, those parties and counsel who have argued for that interpretation are bound by it to the extent that no separate consideration can be given to the cross appeal which seeks an increase of their allowances. We sustain the stipulation and therefore affirm in toto. Concur&emdash;Markewich, J. P., Kupferman, Silverman, Capozzoli and Lane, JJ.

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Bluebook (online)

54 A.D.2d 830, 388 N.Y.S.2d 97, 1976 N.Y. App. Div. LEXIS 14577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-melcher-nyappdiv-1976.

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