In re the Estate of Miller

Appellate Division of the Supreme Court of New York

In re the Estate of Miller

116 A.D.2d 580, 497 N.Y.S.2d 438, 1986 N.Y. App. Div. LEXIS 51432

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

DecidedJanuary 13, 1986

StatusPublished

Cited by6 cases

This text of 116 A.D.2d 580 (In re the Estate of Miller) 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 Miller, 116 A.D.2d 580, 497 N.Y.S.2d 438, 1986 N.Y. App. Div. LEXIS 51432 (N.Y. Ct. App. 1986).

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Opinion

— In a proceeding for a final judicial settlement of the accounts of the trustees of the testamentary marital and nonmarital trusts of Irving Miller, deceased, objectants Margot M. Jacobs and Renee M. Tyroler appeal from an order of the Surrogate’s Court, Nassau County (Radigan, S.), dated November 15, 1983, which dismissed certain objections to the final and supplemental account of the trustees.

Order affirmed, with costs payable by appellants personally.

Irving Miller died a resident of Nassau County on March 25, 1958. He was survived by his widow, Mildred L. Miller, a son and two daughters. Certain objections to the final judicial settlement of the accounts of the trustees of the testamentary [581]*581marital and nonmarital trusts of the testator have been previously resolved by this court (Matter of Miller, 99 AD2d 780). The instant appeal is from an order dismissing all remaining objections. We affirm.

Although attorney trustee Edward Lee discarded certain records concerning the trust and others were accidentally lost, there was no proof that any pecuniary loss to the estate resulted and the trustees’ commissions are not, therefore, subject to forfeiture (see, Matter of Ludlam, 24 NY2d 828; Matter of Baker, 249 App Div 265; 2 Scott, Trusts § 205 [2d ed]).

We are persuaded by the evidence presented at the hearing that there were justifiable reasons for maintaining a portion of the trust assets in interest-bearing checking and savings accounts at commercial banks, upon the advice of investment counsel. The fact that slightly more income would have been earned had the trust purchased Treasury bills or commercial paper instead does not establish a breach of fiduciary duty which would entitle the estate to a surcharge (see, Matter of Bank of New York, 35 NY2d 512; EPTL 11-2.2).

We have reviewed objectants’ remaining contentions and find them to be without merit. Gibbons, J. P., Thompson, Brown and Eiber, JJ., concur.

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— In a proceeding for a final judicial settlement of the accounts of the trustees of the testamentary marital and nonmarital trusts of Irving Miller, deceased, objectants Margot M. Jacobs and Renee M. Tyroler appeal from an order of the Surrogate’s Court, Nassau County (Radigan, S.), dated November 15, 1983, which dismissed certain objections to the final and supplemental account of the trustees.

Order affirmed, with costs payable by appellants personally.

Irving Miller died a resident of Nassau County on March 25, 1958. He was survived by his widow, Mildred L. Miller, a son and two daughters. Certain objections to the final judicial settlement of the accounts of the trustees of the testamentary [581]*581marital and nonmarital trusts of the testator have been previously resolved by this court (Matter of Miller, 99 AD2d 780). The instant appeal is from an order dismissing all remaining objections. We affirm.

Although attorney trustee Edward Lee discarded certain records concerning the trust and others were accidentally lost, there was no proof that any pecuniary loss to the estate resulted and the trustees’ commissions are not, therefore, subject to forfeiture (see, Matter of Ludlam, 24 NY2d 828; Matter of Baker, 249 App Div 265; 2 Scott, Trusts § 205 [2d ed]).

We are persuaded by the evidence presented at the hearing that there were justifiable reasons for maintaining a portion of the trust assets in interest-bearing checking and savings accounts at commercial banks, upon the advice of investment counsel. The fact that slightly more income would have been earned had the trust purchased Treasury bills or commercial paper instead does not establish a breach of fiduciary duty which would entitle the estate to a surcharge (see, Matter of Bank of New York, 35 NY2d 512; EPTL 11-2.2).

We have reviewed objectants’ remaining contentions and find them to be without merit. Gibbons, J. P., Thompson, Brown and Eiber, JJ., concur.

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116 A.D.2d 580, 497 N.Y.S.2d 438, 1986 N.Y. App. Div. LEXIS 51432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-miller-nyappdiv-1986.

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