Stillman's Estate, In re

Decision Date01 July 1975
PartiesIn re ESTATE of James STILLMAN. Surrogate's Court, New York County
CourtNew York Surrogate Court

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for petitioners John S. Stillman, Timothy G. Stillman, Lloyd K. Garrison and The Bank of New York, Trustees; Mordecai Rochlin, Bernard Finkelstein, Howard F. Sharfstein, New York City, of counsel.

Dunnington, Bartholow & Miller, New York City, for respondents Blaine Durham, E. L. Bain, as Executors of the will of Jane S. Durham, deceased income beneficiary; William E. Donovan, New York City, of counsel.

Leaf, Kurzman, Deull & Drogin, New York City, for respondent Calvin W. Stillman, income beneficiary; Robert G. Kurzman, Grace L. Brodsky, New York City, of counsel.

Breed, Abbott & Morgan, New York City, for respondent Dora S. de Marin; Paul C. Lambert, Donald W. Anderson, Timothy J. Joyce, New Rochelle, of counsel.

Casey, Lane & Mittendorf, New York City, for respondent Penelope S. Paine, income beneficiary; Nathan Hale, David W. Schaaf, New York City, of counsel.

John R. Horan, New York City, for March Whitney Bracken, vested remainderman of the trust for the benefit of Jane S. Durham.

Philip J. Ryan, and Healey & Donnelly, New York City, for Alice Durham Bolio, a vested remainderman of the trust for the benefit of Jane S. Durham.

Ira H. Lustgarten, New York City, guardian for all infant respondents.

Proskauer, Rose, Goetz & Mendelsohn, New York City, for guardian ad litem.

MILLARD L. MIDONICK, Surrogate.

The court has been presented with a petition requesting approval of a stipulation settling the apportionment of stock and liquidating distributions between principal and income.

The stipulation is fair and reasonable in light of the questions presented and is approved. The only question presented for determination concerns allowance of income commissions on the cash and securities to be transferred to the income account pursuant to the stipulation. All parties agree that the issue presented be determined by the court upon the papers submitted and no hearing has been requested.

The stipulation which was entered into following extensive negotiations among the parties is silent with respect to the allowance of income commissions. The petitioning trustees have submitted an order, however, providing for the allowance of such commissions which is objected to by certain of the respondents.

The respondents take the position that the trustees waived their right to income commissions on the allocation by not including such claim in the stipulation which their attorneys negotiated and prepared. The court does not agree. All the parties agree that the subject of income commissions on the property to be allocated to income was never raised or discussed throughout the negotiations leading to the execution of the stipulation. While all other matters pertaining to the controversy were included in the writing this one item appears to have been passed over. No one connected with the stipulation thought of the problem at the time of the negotiations and the question was not raised until submission of the order. A waiver is an intentional abandonment or relinquishment of a known right. It is essentially a matter of intention. Negligence, oversight or thought-lessness does not create it. (Alsens A.P.C. Works v. Degnon Cont. Co., 222 N.Y. 34, 37, 118 N.E. 210, 211; Gutman v. United States Cas. Co., 241 App.Div. 752, 270 N.Y.S. 160). The failure of the trustees to include a provision for income commissions in the stipulation cannot be held to amount to an intentional waiver of such right. Nor was such oversight so inconsistent with the trustees' purpose to stand upon their rights as to leave no opportunity for a reasonable inference to the contrary. It appears that in 1967 there was a previous stipulation of settlement with regard to the accounting of a trust under Article Seventh of the will. That stipulation also concerned allocation of corporate distributions and although nothing was stated therein about the allowance of income commissions, the trustees later sought, and were granted, income commissions upon the allocation without objection. While the respondents state that by executing the agreement they expected to receive the exact property describ in the stipulation, none of the respondents request the court to cancel the stipulation upon the ground of mistake.

For the purpose of computing the income commissions the application and order submitted provide for valuation of the securities to be allocated to income as of the date of the entry of the order. This is objected to by respondents. They contend that if the court is of the opinion that the trustees did not waive their right to commissions then the commissions should be computed on the value of the securities as of the time they were first received.

SCPA 2308(2) provides that a trustee 'shall be entitled annually to commissions from the income of the trust upon income collected in...

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3 cases
  • Will of Boddy, Matter of
    • United States
    • New York Surrogate Court
    • 30 Junio 1987
    ...construed statutes providing for fiduciary compensation. (Matter of McDonald, 116 Misc.2d 834, 456 N.Y.S.2d 657; Matter of Stillman, 82 Misc.2d 736, 371 N.Y.S.2d 78). Nevertheless, unless a fiduciary has been delinquent in carrying out his or her responsibilities, courts have adhered to the......
  • Estate of Fox
    • United States
    • New York Surrogate Court
    • 21 Mayo 1981
  • In re Belsky, 2009 NY Slip Op 52692(U) (N.Y. Surr. Ct. 12/18/2009)
    • United States
    • New York Surrogate Court
    • 18 Diciembre 2009
    ...right. It is essentially a matter of intention. Negligence, oversight or thoughtlessness does not create it" (Matter of Sillman, 82 Misc 2d 736, 738 [Sur Ct, New York County 1975]. Even if Bruce were deemed to have voluntarily waived these commissions, such a waiver may be withdrawn (Matter......

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