In re the Judicial Settlement of the Account of Proceedings of Angell

Appellate Division of the Supreme Court of New York

In re the Judicial Settlement of the Account of Proceedings of Angell

258 A.D. 988, 17 N.Y.S.2d 571, 1940 N.Y. App. Div. LEXIS 8566

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

DecidedJanuary 29, 1940

StatusPublished

This text of 258 A.D. 988 (In re the Judicial Settlement of the Account of Proceedings of Angell) 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 Judicial Settlement of the Account of Proceedings of Angell, 258 A.D. 988, 17 N.Y.S.2d 571, 1940 N.Y. App. Div. LEXIS 8566 (N.Y. Ct. App. 1940).

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Opinion

Decree of the Surrogate’s Court, Kings County, settling the account of executors under a will. The appeal is by the executors, who were also appointed trustees by the will, from so much of the decree as disallows their claim for full commissions. Decree modified by striking out the provisions to the effect that the appellants are not entitled to commissions in their dual capacities as executors and trustees and by inserting in place thereof provisions to the effect that the account be settled in such form as to allow full commissions. As thus modified, the decree, in so far as appealed from, is affirmed, with costs to the appellants, payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a decree accordingly. The executors are entitled to be discharged as such upon the completion of their executorial duties, which in this case must necessarily be at the time the bequest to the trustees took effect. The will contemplates that the bequest to the trustees takes effect when the residuary estate is completely assembled in a form suitable to constitute a clean-cut trust corpus. (Matter of Schliemann, 259 N. Y. 497.) Johnston, Adel and Taylor, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote to affirm the decree on the .authority of Johnson v. Lawrence (95 N. Y. 154) and Matter of Schliemann (259 id. 497).

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Decree of the Surrogate’s Court, Kings County, settling the account of executors under a will. The appeal is by the executors, who were also appointed trustees by the will, from so much of the decree as disallows their claim for full commissions. Decree modified by striking out the provisions to the effect that the appellants are not entitled to commissions in their dual capacities as executors and trustees and by inserting in place thereof provisions to the effect that the account be settled in such form as to allow full commissions. As thus modified, the decree, in so far as appealed from, is affirmed, with costs to the appellants, payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a decree accordingly. The executors are entitled to be discharged as such upon the completion of their executorial duties, which in this case must necessarily be at the time the bequest to the trustees took effect. The will contemplates that the bequest to the trustees takes effect when the residuary estate is completely assembled in a form suitable to constitute a clean-cut trust corpus. (Matter of Schliemann, 259 N. Y. 497.) Johnston, Adel and Taylor, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote to affirm the decree on the .authority of Johnson v. Lawrence (95 N. Y. 154) and Matter of Schliemann (259 id. 497).

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258 A.D. 988, 17 N.Y.S.2d 571, 1940 N.Y. App. Div. LEXIS 8566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-account-of-proceedings-of-angell-nyappdiv-1940.

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