123 Misc. 2d 247 | N.Y. Sur. Ct. | 1984
OPINION OF THE COURT
The within motion for an order striking objections 1 (d) and (e) made to the account filed by the coexecutors (CPLR 3212, subd [e]; 3024, subd [b]) is denied.
Decedent, by codicil dated August 30, 1975, nominated his attorney and that attorney’s accounting partner as coexecutors of his estate. It was apparent from the outset of the probate proceedings that this estate was of sufficient financial magnitude as to fall within those provisions entitling each fiduciary to seek a full commission (SCPA 2307, subd 5).
Decedent died November 9,1976, and permanent letters were issued by decree dated February 10, 1977. The five objectants constitute decedent’s widow and four children, all of whom comprise the primary beneficiaries of this estate. Probate was accomplished without objection to the
The objections which the accounting parties seek to have dismissed relate to the right of the two fiduciaries to each seek a full commission. The issues relative to the coexecutors’ administration of the estate and whether that administration would justify some form of reduction in their compensation is not presently before the court. More particularly, it is now claimed that the cofiduciaries, one of whom was the attorney draftsman of the codicil containing his appointment, “negligently, unethically, improperly, and/or fraudulently” failed to inform the testator of the standards for two full commissions and that two commissions should, therefore, not be paid.
As heretofore noted, from its inception, the estimated value of the assets of this estate provided a base for each fiduciary to seek a full commission. Absent some cause arising during the administration of the estate which would warrant a reduction in statutory compensation, the mandatory provisions of SCPA 2307 (subd 1) would require the payment of the commissions established by that statute. Equally, it is the rule that where an attorney draftsman without proper disclosure to the client gains nomination as the fiduciary, such could constitute a form of constructive fraud and provide justification to preclude counsel from appointment to the office of fiduciary (Matter of Weinstock, 40 NY2d 1). What these objections and this motion now bring to the court is the question of whether the issues presented in Matter of Weinstock are limited to the probate proceeding. That is, may a party who has acquiesced in probate without invoking a claim of fraud be permitted to later be heard to raise the issue of constructive fraud on the final accounting? Certainly, this presents