In re the Estate of Simon

44 A.D.2d 570, 353 N.Y.S.2d 39, 1974 N.Y. App. Div. LEXIS 5494

Opinion

In consolidated proceedings, the appeal is from so much of a decree of the Surrogate’s Court, Nassau County, dated July 30, 1973 and made after a hearing, as (1) dismissed on the merits a petition by appellant Reva Simon Hart (a) to set aside a sale of estate property and (b) to revoke letters testamentary and of trusteeship granted to respondent Black and (2) approved and confirmed said sale as of the date of the sale. Decree modified, on the law and the facts, by striking therefrom the second decretal paragraph, which approved and confirmed the sale as of the date of the sale. As so modified, decree affirmed' insofar as appealed from, with costs to all parties appearing separately and filing separate briefs, payable out of the estate. We agree with the Surrogate’s ultimate finding that Reva Simon Hart impliedly ratified and acquiesced in the executors’ improper sale of estate property to a eofidueiary. Accordingly, she waived her right as a beneficiary of the estate to have the improper sale set aside (Adair v. Brimmer, 74 N. Y. 539, 553, 554; Matter of Ryan, 291 N. Y. 376, 417; Bogert, Trusts and Trustees [2d ed.], § 942). Furthermore, we note that the Surrogate’s refusal to remove Black as an executor and testamentary trustee is within the proper exercise of his discretion (SCPA 713; Matter of Israel, 64 Misc 2d 1035, 1043; Matter of Edwards, 274 App. Div. 244, 247-248). We disagree, however, with the Surrogate’s retroactive approval of the sale in question. The terms of the sale were clearly not in the best interests of the estate. Hopkins, Acting P. J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.