In re the Estate of Taber

Appellate Division of the Supreme Court of New York

In re the Estate of Taber

96 A.D.2d 890, 466 N.Y.S.2d 50, 1983 N.Y. App. Div. LEXIS 19489

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

DecidedAugust 15, 1983

StatusPublished

Cited by4 cases

This text of 96 A.D.2d 890 (In re the Estate of Taber) 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 Taber, 96 A.D.2d 890, 466 N.Y.S.2d 50, 1983 N.Y. App. Div. LEXIS 19489 (N.Y. Ct. App. 1983).

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Opinion

— In a proceeding pursuant to SCPA 2205 by an executrix of a will to compel an accounting by one of her coexecutors, petitioner appeals from an order of the Surrogate’s Court, Orange County (Green, S.), dated October 12,1982, which denied the petition. Order affirmed, without costs or disbursements. In a proceeding to compel a fiduciary to account, the Surrogate acts in his discretion, governed by what is deemed to be the best interests of the estate (Matter of Thoms, 76 Mise 2d 132, SCPA 2205, 2206). Under the facts at bar, where the respondent fiduciary asserted that no assets of the estate ever came into his possession or control and that he had neither paid nor incurred any debts chargeable to the estate, it cannot be said that the Surrogate abused his discretion in refusing to compel an accounting. As the Surrogate noted in his decision, if petitioner believed that respondent was improperly concealing assets belonging to the estate, discovery was available to identify those assets (SCPA 2102). Moreover, as respondent points out, petitioner, as his coexecutrix, may achieve the same result by filing her own voluntary account listing the disputed assets as part of the estate. Lazer, J. P., Gulotta, Brown and Boyers, JJ., concur.

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— In a proceeding pursuant to SCPA 2205 by an executrix of a will to compel an accounting by one of her coexecutors, petitioner appeals from an order of the Surrogate’s Court, Orange County (Green, S.), dated October 12,1982, which denied the petition. Order affirmed, without costs or disbursements. In a proceeding to compel a fiduciary to account, the Surrogate acts in his discretion, governed by what is deemed to be the best interests of the estate (Matter of Thoms, 76 Mise 2d 132, SCPA 2205, 2206). Under the facts at bar, where the respondent fiduciary asserted that no assets of the estate ever came into his possession or control and that he had neither paid nor incurred any debts chargeable to the estate, it cannot be said that the Surrogate abused his discretion in refusing to compel an accounting. As the Surrogate noted in his decision, if petitioner believed that respondent was improperly concealing assets belonging to the estate, discovery was available to identify those assets (SCPA 2102). Moreover, as respondent points out, petitioner, as his coexecutrix, may achieve the same result by filing her own voluntary account listing the disputed assets as part of the estate. Lazer, J. P., Gulotta, Brown and Boyers, JJ., concur.

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Bluebook (online)

96 A.D.2d 890, 466 N.Y.S.2d 50, 1983 N.Y. App. Div. LEXIS 19489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-taber-nyappdiv-1983.

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