In re the Estate of Schmidt

163 Misc. 610, 297 N.Y.S. 327, 1937 N.Y. Misc. LEXIS 1373

Opinion

Foley, S.

This motion to strike out the objections filed by Virginia A. Siegel and Augusta S. Leary to the account of the trustee will be granted in part.

All the objections to the transactions of the fiduciary as temporary administrator and executor as set forth in the prior account, which was judicially settled by the decree dated March 25, 1933, will be dismissed with the single exception of the objections to the investment in the Kinsley mortgage in the sum of $20,000 upon the property located in Mt. Kisco, N. Y. With the latter exception, the transactions sought to be attacked by the objectants were fully set forth in the account and were approved in the report of the special guardian and finally settled by the decree. As to such matters the decree is conclusive. (Surr. Ct. Act, §§ 80, 274; Matter of Gilford, 155 Misc. 339; affd., 247 App. Div. 782; Matter of Sielcken, 162 Misc. 54.)

The investment in the Kinsley mortgage is attacked upon the ground that it was an illegal investment made in breach of trust. The prior account did not fully set forth the circumstances concerning this investment and erroneously described it as a participation or “ interest ” in a mortgage. The fact is that it was actually a whole mortgage, which it is now claimed was purchased with trust funds by the trustee from itself individually.

In view of these circumstances the decree is not conclusive and the objectants are not estopped from attacking this particular investment. (Matter of Long Island L. & T. Co. [Garretson], 92 App. Div. 1, at p. 4; affd., 179 N. Y. 520, on opinion below; Rudd v. Cornell, 171 id. 114, 127; Matter of Denbosky, 245 App. Div. 93.)

The objectants are directed to serve and file on or before March 9, 1937, amended objections in accordance with this decision, which shall set forth the specific item objected to and the ground of the objection in terse form.