In re the Trust of Tyrrel

Appellate Division of the Supreme Court of New York

In re the Trust of Tyrrel

46 A.D.2d 643, 360 N.Y.S.2d 434, 1974 N.Y. App. Div. LEXIS 3757

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

DecidedOctober 31, 1974

StatusPublished

This text of 46 A.D.2d 643 (In re the Trust of Tyrrel) 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 Trust of Tyrrel, 46 A.D.2d 643, 360 N.Y.S.2d 434, 1974 N.Y. App. Div. LEXIS 3757 (N.Y. Ct. App. 1974).

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Opinion

Order, Supreme Court, New York County, entered September 6, 1973, which denied petitioner’s objections to the account of George E. Niven as executor of the will of Randolph E. Tyrrel and directed that the referee’s fees and all costs and disbursements are to be borne by the estate of Randolph E. Tyrrel, unanimously modified, on the law and the facts, to remand for a further hearing concerning the nature of the subject balance sheet entries and the reasons for and circumstances involved in the changes of such entries, and to strike the afore-mentioned provision with respect to fees and direct instead that such amounts are to be paid out of the trust corpus. As so modified, the order is affirmed, without costs or disbursements. With the exception of the eonclusory explanation contained in the financial statements, it appears and was recognized by both Special Term and the referee, that no other evidence was submitted by either the petitioner or respondent with respect to the transactions reflected in the balance sheet entries of 1946 and 1947. A prima facie showing was made of, conflict of interest in the trustee sufficient to require an explanation by him. We therefore believe that the matter should be remanded in order that these issues be explored. Additionally, considering all the circumstances, it was improper to charge fees and costs to. the deceased trustee’s estate, and such amounts should be charged to the trust corpus. Concur—Markewich, J. P., Kupferman, Steuer, Tilzer and Capozzoli, JJ.

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Order, Supreme Court, New York County, entered September 6, 1973, which denied petitioner’s objections to the account of George E. Niven as executor of the will of Randolph E. Tyrrel and directed that the referee’s fees and all costs and disbursements are to be borne by the estate of Randolph E. Tyrrel, unanimously modified, on the law and the facts, to remand for a further hearing concerning the nature of the subject balance sheet entries and the reasons for and circumstances involved in the changes of such entries, and to strike the afore-mentioned provision with respect to fees and direct instead that such amounts are to be paid out of the trust corpus. As so modified, the order is affirmed, without costs or disbursements. With the exception of the eonclusory explanation contained in the financial statements, it appears and was recognized by both Special Term and the referee, that no other evidence was submitted by either the petitioner or respondent with respect to the transactions reflected in the balance sheet entries of 1946 and 1947. A prima facie showing was made of, conflict of interest in the trustee sufficient to require an explanation by him. We therefore believe that the matter should be remanded in order that these issues be explored. Additionally, considering all the circumstances, it was improper to charge fees and costs to. the deceased trustee’s estate, and such amounts should be charged to the trust corpus. Concur—Markewich, J. P., Kupferman, Steuer, Tilzer and Capozzoli, JJ.

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Bluebook (online)

46 A.D.2d 643, 360 N.Y.S.2d 434, 1974 N.Y. App. Div. LEXIS 3757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-trust-of-tyrrel-nyappdiv-1974.