Estate of Holland

• Decision Date: 18 October 1974
• Parties: ESTATE of Max HOLLAND, Deceased. Surrogate's Court, Bronx County
• Court: New York Surrogate Court

Page 854

377 N.Y.S.2d 854

84 Misc.2d 922

ESTATE of Max HOLLAND, Deceased.

Surrogate's Court, Bronx County.

Oct. 18, 1974.

Lehman, Rohrlich, Solomon & Heffner, New York City, for Samuel Holland, Leon Sheptin and Marvin Sussman, petitioners.

Dreyer & Traub, New York City, for Doris Mazur and Vivian Schneider, objectants.

Robert M. Morgenthau, New York City, guardian ad litem of infant, Paul Mazur.

BERTRAM R. GELFAND, Surrogate.

This is a motion to dismiss certain objections filed in this proceeding to judicially settle the account of trustees. The objections at issue relate to acts of the trustees when they served as executors of decedent's estate. The executors' accounts were judicially settled by a decree rendered February 28, 1972. The present objectants are Doris Mazur, a trust income beneficiary under one trust and an alternate income beneficiary under another. She is also a successor trustee. The other objectant is a successor trustee Vivian Schneider. A guardian ad litem has been appointed in this proceeding to represent Paul Mazur, an infant who is an alternate income beneficiary and a remainderman. Paul Mazur is the only child of objectant Doris Mazur. The guardian ad litem has joined in arguing in opposition to the motion to dismiss.

Placed in issue is the propriety of jurisdiction having been obtained over Paul Mazur pursuant to SCPA 315. In the proceeding to settle the executors' account Paul Mazur was virtually represented by Doris Mazur.

It is also argued by objectant Doris Mazur in opposition to this motion that the decree settling the executors' account is not binding upon her because she was not represented by counsel, was not advised of her right to counsel and that she did not fully understand the waiver and consent which she signed in that proceeding. There is no claim that this waiver and consent in any way flowed from fraud or undue influence. It is argued by the movants that their conduct as executors is res judicata as the result of the decree which settled their account.

The position of the objectants rests upon their ability to sustain a collateral attack upon the decree of February 28, 1972. This decree, like all determinations of any court, is always subject to attack by a party in interest who contends that they have been adversely affected by the entry of a decree that had been rendered without the court acquiring proper jurisdiction (Hess v. Hess, 233 N.Y. 164, 135 N.E. 231; Downey v. Seib, 185 N.Y. 427, 78 N.E. 66; O'Donoghue v. Boies, 159 N.Y. 87, 100, 53 N.E. 537, 540; Matter of Spring, 280 App.Div. 642, 117 N.Y.S.2d 356). The decree settling the account of the executors was entered upon the express consent of objectant Doris Mazur. It is not disputed at this time that the objectant in this proceeding, Vivian Schneider, was not a necessary party to the settlement of the executors' account. The only party who was affected by the court's 1972 reliance upon SCPA 315 is the infant, Paul Mazur. It is fundamental that issues may be raised in a proceeding only by a party who may benefit therefrom. Accordingly, neither objectant Doris Mazur nor Vivian Schneider has any standing to create an issue as to the finality of the decree of February 28, 1972 based upon the court having exercised jurisdiction over Paul Mazur pursuant to the provisions of SCPA 315. A party may not create issues which only affect the rights of others (Matter of Cook, 244 N.Y. 63, 154 N.E. 823; Matter of Petersen, Sur., 89 N.Y.S.2d 585; Cox, Arenson, Medina, New York Civil Practice, Vol. 10D, par. 2211.03(c)).

However, the guardian ad litem, who has been appointed to protect the interests of the infant has adopted the position of the objectants with reference to the propriety of the court's reliance upon virtual representation in the proceeding to settle the executors' account. The guardian ad litem does have the right on behalf of his ward to have this issue now determined upon its merits. In evaluating whether a party representing another by virtual representation has the identity of interest required by SCPA 315, the controlling factors are the similarity of their interest, whether the representor has any interest that is adverse to the party being represented, and whether the representor can adequately represent the interests of those virtually represented (Matter of Silver, 72 Misc.2d 963, 340 N.Y.S.2d 335; Matter of Schwartz, 71 Misc.2d 80, 335 N.Y.S.2d 243; Matter of Leyshon, 67 Misc.2d 492, 324 N.Y.S.2d 472).

Closer examination of the interests of the parties in the two trusts involved and the nature of the present objections is pertinent to a disposition of these questions. With reference to one trust, decedent's wife was given the income for life with a power of appointment over the principal. If the wife failed to exercise the power of appointment, upon her death, one-half of the income was to go to Doris Mazur and one-half to her children with the corpus ultimately going to Doris...