In re the Estate of Taber

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

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.