Faulkes' Will, In re
| Decision Date | 12 November 1957 |
| Citation | 167 N.Y.S.2d 705,4 A.D.2d 954 |
| Parties | In re FAULKES' WILL. In the Matter of the Judicial Settlement of the Account of Proceedings of Nathan BLUMENGARTEN as one of the Executors of Thomas A. Faulkes, deceased. Application of Nathan Blumengarten to compel Caroline E. Gest to account as Executrix of Thomas A. Faulkes, deceased. Caroline E. Gest, as Executrix of Thomas A. Faulkes, deceased, appellant; Nathan Blumengarten, as one of the Executors of Thomas A. Faulkes, deceased, respondent. (Consolidated Proceeding.) |
| Court | New York Supreme Court — Appellate Division |
Ellen E. O'Neill, Wantagh, for appellant.
No appearance for respondent.
Before NOLAN, P. J., and WENZEL, BELDOCK, UGHETTA and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
Appeal from an order of the Surrogate's Court, Nasssau County, directing appellant, the coexecutrix, to account.
Order affirmed, without costs.
The will named respondent and appellant as coexecutors. Appellant, the testator's daughter, was the sole beneficiary under the will and the testator had no creditors. Part of the testator's 'estate' consisted of property held in trust by the testator for appellant and others. Those trust assets were part of the 'estate' only for accounting and tax purposes. Appellant and respondent both qualified as executors. Appellant paid the funeral bill out of her own funds and paid the Federal and State inheritance or transfer taxes. Respondent received no assets and paid out no money because appellant took possession of the assets and excluded him from participating in the management of the estate. A coexecutor who is willing to perform his statutory duties is entitled to participate in the administration and cannot be deprived of his right to earn his commissions by the acts of his cofiduciary who was responsible for his inability to render services to the estate (Matter of Purdy, 129 Misc. 297, 221 N.Y.S. 468; Taylor v. Taylor, 223 Ky. 799, 4 S.W.2d 752). A person named and appointed as a sole executor who is also the sole legatee under the will may obtain legal title without a formal transfer from himself as executor if there are no debts or if all the debts have been paid (Matter of Mullon's Estate, 145 N.Y. 98, 104, 39 N.E. 821, 823; Gensinger v. Commissioner of Internal Revenue, 9 Cir., 208 F.2d 576, 582). Appellant, a sole legatee, was not a sole fiduciary and may not deprive respondent of his right to earn his statutory commissions. There was not such a merger of...
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...we find this precedent wholly unpersuasive. Authority which deals more closely with our facts may be found in In re Faulkes' Will, 4 A.D.2d 954, 167 N.Y.S.2d 705 (1957), app. dism. 4 N.Y.2d 904, 174 N.Y.S.2d 654, 151 N.E.2d 87 (1958), where the court stated: "A coexecutor who is willing to ......
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...by the acts of his cofiduciary who was responsible for his inability to render services to the estate,' Matter of Faulke's Will, 4 App.Div.2d 954, 167 N.Y.S.2d 705 (appeal dismissed 5 App.Div.2d 889, 173 N.Y.S.2d 254; 4 N.Y.2d 676, 174 N.Y.S.2d 1025, 150 N.E.2d 774). The act of Manufacturer......
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