In re the Probate of the Will of Dix

11 A.D.2d 555 | N.Y. App. Div. | 1960

Cross appeals from an order of the Rensselaer County Surrogate denying motions by the respective parties for the removal of attorneys. Monroe L. Dix died on August 30, 1958 and thereafter his last will and testament was offered for probate in the Surrogate’s Court of Rensselaer County. The petition was signed by the named executors, the widow Elynor M. Dix and David C. Anchin, the papers having been prepared by their attorneys, Kadel, Wilson and Potts. Thereafter the decedent’s sister, a named legatee, by her attorney, filed objections to the probate of the will and then the widow, through her attorney, withdrew as a copetitioner for the probate of the will and filed objections which she thereafter withdrew, so that at the time of this motion she was neither a proponent nor contestant but a legatee and devisee under the said will. While this maneuvering was in progress, the original attorneys mentioned above for both parties applied to the court on behalf of the then petitioner David C. Anchin for the appointment of a temporary administrator of the estate. Inasmuch as there are other motions pending before this court concerning that aspect of the case, suffice it to say that the Chemical Bank New York Trust Company was appointed, over the objections of Mrs. Dix, as temporary administrator and retained the original attorneys, Kadel, Wilson and Potts to represent it. The widow here seeks to have these attorneys removed, which the Surrogate denied, because of an alleged confidential relationship which they had with Mrs. Dix and on the further grounds that they represented adverse interests, that is, the coexecutor and the temporary administrator. It should first be mentioned that these attorneys had represented the decedent and his various closed corporations for many years prior to his decease. For further enlightenment and clarification it should be made evident that these attorneys are now representing the temporary administrator so far as these proceedings here are concerned. That the attorneys also represent the coexecutor named in the will does not connote any conflicting interest. The fact that after the retention of the attorneys Mrs. Dix decided to change her status in these proceedings does not, ipso facto, make the attorneys adverse to her voluntary shifting of positions. Mrs. Dix and Mr. Anohin consulted the attorneys for their mutual benefit as prospective coexecutors and it is difficult to visualize what could possibly have transpired between the parties to create a confidential relationship, one to the other, sufficient in character to call upon the attorneys now to withdraw because of such relationship. We are unable to say that there is any conflict of interest or any confidential relationships which prevent the said attorneys, appointed by the temporary administrator, from continuing to act in that capacity. As to the cross motion to remove the attorney presently representing Mrs. Dix, it is without merit. Order unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ. [21 Misc 2d 864.]