In re the Estate of Keating, 71 A.D.2d 786

In re the Estate of Keating

71 A.D.2d 786 | N.Y. App. Div. | 1979

—Decree unanimously affirmed, without costs. Memorandum: In his last will, testator, *787a former Judge of the New York Court of Appeals and, at the time of his death, a New Jersey domiciliary, exercised a general power of appointment granted to him under the will of his first wife. Security Trust Company of Rochester, the New York trustee under the first wife’s will, brought this proceeding in Monroe County Surrogate’s Court to settle its accounts as trustee and, as an integral part of that relief, determine the amount of Federal estate tax chargeable to the trust corpus. Mary Keating, testator’s surviving wife and the New Jersey executrix of his will admitted to probate in New Jersey, answered and requested that the Monroe County Surrogate defer the question of tax apportionment and leave that determination to the courts of New Jersey. Instead, however, the Surrogate apportioned the tax, settled the accounts and denied the request to charge her counsel fees to the. trust in the proceeding pending before him. We cannot conclude that the Surrogate abused his discretion by refusing to defer to the courts of New Jersey. This case involved a New York trust and a New York trustee. The parties concede that the trust accounting was required to be brought in this State. There were present sufficient New York contacts to justify the Surrogate’s action in deciding the substantive issues. Paragraph Sixth of the will establishes the amount of tax which the trust shall bear in clear and unambiguous terms. The Surrogate’s determination that the literal interpretation of this paragraph correctly expressed testator’s intent is amply supported by testator’s background as a former jurist familiar with tax apportionment (see, e. g., Matter of King; 22 NY2d 456). Finally, it was within the Surrogate’s discretion to determine that the trust not be charged for services of counsel for the Keating estate (see EPTL 2-1.8 par [h]). (Appeal from decree of Monroe County Surrogate’s Court—judicial settlement.) Present—Dillon, P. J., Cardamone, Simons, Callahan and Moule, JJ.