Sandow's Estate, In re

Decision Date15 July 1959
Citation21 Misc.2d 292,192 N.Y.S.2d 975
PartiesIn re ESTATE of Lillian SANDOW. Surrogate's Court, New York County
CourtNew York Surrogate Court

Weidenbaum & Krein, Elmhurst, for Ethel Rothman, executrix, petitioner.

Estelle Conn, New York City, for Harriet K. Greenblatt, respondent.

Pollock & Stein, New York City, for Shirley Miller, respondent.

Alexander & Keenan, New York City, for Benjamin Zuckerman, respondent.

S. SAMUEL DI FALCO, Surrogate.

The will of the testatrix has been admitted to probate but the issuance of letters testamentary has been stayed pending a determination of the objections to the qualification of the executrix. At the opening of the trial of that issue, a motion was made to dismiss the objections on the ground that they failed to state proper grounds of disqualification as specified in Section 94, Surrogate's Court Act.

The written objections do contain allegations which in no way point to the disqualification of the nominated executrix. The alleged 'individual conflict of interest [of the executrix] with that of depondent and depondent's child' raises no issue. The allegations of 'openly exhibited hostility' to objectant and her child, and the allegations respecting ambiguities in the will raise no triable issue in respect of the fiduciary's qualifications under Section 94.

The objections also allege that prior to the decedent's death she gave to the nominated executrix her entire interest in a profitable business which had been owned by the decedent. It appears that the will bequeaths the business to the executrix, who is a sister of the decedent. The objections charge that the business should be transferred by the executrix to the estate, and that the executrix would be placed in a position where she would be under obligation to prosecute a cause of action against herself individually. The objections also charge that there are ambiguities in the will respecting the gift of the business. The papers do not furnish any reason why the person appointed as fiduciary should institute proceedings to compel the return of the business by the decedent's sister. This is a charge which is not amplified in the pleadings. However, even if it be a fact that the decedent placed her sister in a position where her individual interests and her executorial duties may come in conflict, the court would not be justified in annulling the decedent's appointment of her sister on that ground. In Matter of Foss' Will, 282 App.Div. 509, 513, 125 N.Y.S.2d 105, 109, the Appellate Division said:

'It would be a serious matter to make any claim of conflict of interest a ground for disqualifying designated executors. Not only would it threaten to substitute the legatees' desires and views for the views of the testator, it would also undoubtedly engender a multitude of proceedings. Few estates would be certain to be free from such attack. Many estates would be...

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3 cases
  • Liberti v. Bolen (In re Estate)
    • United States
    • New York Supreme Court — Appellate Division
    • November 21, 2018
    ...352 N.Y.S.2d 858 [Sur. Ct., Monroe County 1974], affd 47 A.D.2d 589, 363 N.Y.S.2d 974 [1975] ; Matter of Sandow, 21 Misc.2d 292, 292–293, 192 N.Y.S.2d 975 [Sur. Ct., N.Y. County 1959] ). Simply put, "a conflict does not make a fiduciary ineligible under SCPA 707, and public policy zealously......
  • Will of Nelson
    • United States
    • New York Surrogate Court
    • March 13, 1984
    ...N.Y.S.2d 105; Matter of Woodworth, 165 Misc. 770, 773-774, 1 N.Y.S.2d 455, aff'd 254 App.Div. 852, 6 N.Y.S.2d 360; Matter of Sandow, 21 Misc.2d 292, 293, 192 N.Y.S.2d 975; Matter of Wenig, 31 Misc.2d 903, 905, 222 N.Y.S.2d No facts have been alleged to require a hearing on the fitness of th......
  • Juelich, Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • May 26, 1981
    ...125 N.Y.S.2d 105; Matter of Woodworth, 165 Misc. 770, 773-774, 1 N.Y.S.2d 455, affd. 254 App.Div. 852, 6 N.Y.S.2d 360; Matter of Sandow, 21 Misc.2d 292, 192 N.Y.S.2d 975; Matter of Wenig, 31 Misc.2d 903, 905, 222 N.Y.S.2d 205). Therefore the order must be reversed, the application granted a......

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