ESTATE OF ANTOINETTE DEVEREUX ANDREWS, Deceased (55/2631) — At the call of the calendar, this application by a co-trustee of a trust created under the will of Antoinette Devereux Andrews seeking permission to resign and appointment of a successor co-trustee was granted.Letters of co-trusteeship issued to Alan Donaldson shall be revoked, and letters of successor co-trusteeship shall issue to Andrew Tansey, as co-trustee with Deutsche Bank Trust Company, N.A., upon his duly qualifying according to law, to serve without bond.Decree signed.Dated: March 2, 2018ESTATE OF JILL MORRIS, Deceased (16/2746/A) — At the call of the calendar, in this contested construction proceeding in the estate of Jill Morris, petitioner’s motion for leave to file a supplemental affirmation was denied for the reasons stated on the record.This decision, together with the transcript of the February 27, 2018 proceedings, constitutes the order of the court.Dated: March 2, 2018ESTATE OF JOSEPH SORAHAN, Deceased (16/275/A) — After conference with the court, this proceeding by the executor’s former counsel to have his fees fixed (SCPA 2110) has been discontinued pursuant to a stipulation filed with the court.Proceed accordingly.Dated: March 2, 2018ESTATE OF CHARLES WOLF, Deceased (14/4365/C) — This is an uncontested petition by the widow of Charles Wolf (“testator”) as executor of his estate and co-trustee of trusts under his will. The petition, as amended, asks for both construction and reformation of certain provisions of the will.Testator died on October 10, 2015, leaving an estate valued at approximately $5.75 million. Under Articles SECOND through SIXTH(A) of his will, there are several pre-residuary bequests, some outright and others in trust. Harvard College, which is given beneficial interests under Articles THIRD through FIFTH and SIXTH(B), is sole residuary beneficiary under Article SEVENTH.Issues as to Article FOURTH:One of the two testamentary provisions as to which the petition seeks relief is Article FOURTH, which in relevant part provides as follows:“I hereby give…to my Trustee[s]…IN TRUST…an amount equal to four times the annual tuition charged by Harvard University at the time of my death and direct my Trustee[s] to hold said amount…for the benefit of [my step-grandson], to manage…the same,…and…to pay the following charges:(a)…his full tuition charges for each year if [he] is accepted into Harvard College and attends;(b)…one half of his tuition charges if [he] is accepted into Stanford University (California) or Princeton University (New Jersey) and attends. Should [he] not…attend any of the above-mentioned educational institutions…this bequest…shall lapse and the funds shall become part of my residuary estate.”The step-grandson enrolled as an undergraduate at McGill University in 2014. But petitioner notes the possibility that the step-grandson might eventually seek acceptance by one of the institutions of higher learning named in Article FOURTH, either as a transferee undergraduate or as an enrollee in a graduate program. However, her petition asks the court to determine that testator intended the trust fund to cover tuition only for enrollment in an undergraduate program at one of the three institutions named in Article FOURTH. The court agrees that testator intended that Article FOURTH be so read. As for the petition’s request that the court insert a specific deadline for termination of the trust, there is a well-established canon of construction that eliminates any need to reform the instrument: a legal instrument that provides for something to be done but does not specify a deadline for performance must be deemed to contemplate that the thing to be done will be performed within a “reasonable” time, with “reasonableness” determined by the particular circumstances (see, e.g., Matter of Wilson, 298 NY 398; Chalu v. Tov-LaRealty Corp., 220 AD2d 552 [2d Dept 1995]; Omath Holding Co. v. NY, 149 AD2d 179 [1st Dept 1989]; Reliance Ins. Co. of NY v. Garsart Bldg. Corp., 131 AD2d 828 [2d Dept 1987]). In other words, it is for the trustees to determine whether and when a “reasonable” time has elapsed for the purpose of the Article FOURTH trust to be deemed either to have been satisfied or to have lapsed.Issues as to Article SIXTH:Article SIXTH of the will contains pre-residuary provisions that, when read in conjunction with bequests under prior Articles, appear to dispose of considerably more than 100 percent of the estate. Moreover, the will as a whole contains (as the petition puts it) other “ambiguities, contradictions and obvious incongruencies.” The petition does not allege that extrinsic evidence is available to aid in the process of construing Article SIXTH.Petitioner requests that the court construe Article SIXTH in such a way as to give complete effect to the pre-residuary dispositions under Articles SECOND, THIRD, FOURTH, FIFTH, and SIXTH(A), while at the same time reducing the trust for petitioner’s own primary benefit under SIXTH(B). The requested construction of the provisions in question is not opposed by any of the persons having a stake in the construction issue, all of whom have been served with notice of the proceeding. Nevertheless, the court recognizes its obligation — “even where no opposition is interposed” — to “make an independent determination as to the meaning of the instrument…” (Matter of Stern, 1998 NYLJ, 34301793 [Sur Ct, Bronx County 1998]) (citations omitted). The court’s independent review of the provisions in question, reading the will as a whole (Matter of Fabbri, 2 NY2d 236 (1957), leads to the conclusion that the construction of Article SIXTH proposed by the petition is indeed the more reasonable of the possible alternatives, since testator had taken pains to provide for specified amounts to pass under the provisions preceding Article SIXTH(B), but defined the amount to pass under Article SIXTH(B) in terms suggesting that the Subdivision was a hasty afterthought (cf. id., at 240). Thus, it is concluded that Article SIXTH(B) should be read to leave to the trust for petitioner’s primary benefit no more than an amount that allows for full funding of the bequests under the dispositive provisions preceding it. Decree signed.Dated: February 28, 2018ESTATE OF MARIEME NDIAYE, Deceased (05/2085/D) — This is an uncontested application to withdraw funds deposited with the Commissioner of Finance of the City of New York for the benefit of petitioner Mbayang Kasse.By Decree on Accounting dated April 18, 2013, the court directed that the net proceeds of the settlement be distributed to the guardian of petitioner’s property because she was under the age of 18 at the time. No property guardian was ever appointed, and the funds were thereafter deposited with the Commissioner of Finance.Petitioner has obtained the age of majority and is entitled to the funds. Accordingly, after deducting fees and charges as provided by law, the Commissioner of Finance is directed to pay the funds on deposit to petitioner Mbayang Kasse.This decision constitutes the order of the court.Dated: March 2, 2018Surrogate MellaESTATE OF ALVIN COLT, Deceased (08/4673/B);ESTATE OF ALVIN COLT, Deceased (08/4673/C) — After a bench trial in these contested judicial accountings of the proceedings of decedent Alvin Colt’s executor and trustee, the court determined that $520,000 in legal fees was payable from decedent’s assets, and that decedent’s fiduciary must refund any amount in excess of that sum that was paid to his attorneys (Matter of Colt, NYLJ, April 14, 2017, at 22, col 2 [Sur Ct, NY County, File No. 2008/4673]). In addition, the court directed the trustee to refund $40,088.92 in commissions previously taken by him (Id). Along with a proposed decree settling both accounts, counsel for the fiduciary has submitted an affirmation admitting that the fiduciary had failed to file fiduciary income tax returns for years 2013, 2014, 2015, 2016 — and returns will need to be filed for 2017 as well, and that amended U.S. and New York State estate tax returns may need to be filed based on the court’s decision after trial. The affirmation requests court guidance as to how the fiduciary should proceed in view of those open matters.In an attempt to provide some resolution in these long-litigated matters, the court determines, in light of the substantial commissions to be refunded and interest thereon, that any additional accounting fees and taxes due must be satisfied in the first instance by the amounts that the fiduciary must return on account of commissions, plus any interest due. At this late date, the fiduciary has not established what amounts are needed to be kept on reserve for accountant fees or possible taxes due, much less that such amounts would exceed the sum that the fiduciary must return in commissions. To avoid further delays, if the fiduciary fails to substantiate, in a sworn statement filed with the court and served on the parties within ninety days of the date of the decree entered in these proceedings, any further claims for accounting fees or taxes, then each of the three beneficiary-objectants may have judgment against the fiduciary for their respective remainder shares1 of all the commissions plus interest to be repaid by the fiduciary.2The court determines and holds that the decedent’s funds currently on hand should be paid to the trust remainder beneficiaries3 in their respective percentages.Regarding pre-decision interest on commissions to be repaid, the court determines that such interest shall run at the rate of 4 percent per annum from May 1, 2012 (CPLR 5001 [a]),4 which to the date of the decision after trial comes to $7,933.18 in interest, and which added to the amount of commissions to be repaid ($40,088.92) totals $48,022.10 (CPLR 5002). Interest at the statutory rate of 9 percent annually (CPLR 5004) accrues on this amount from the date of decision to the entry of the decree, which is to be entered on the same date of this decision (CPLR 5002) and totals $3,848 (see Siegel, NY Prac §412 at 723, n.1 [5th ed 2011]), for a total due from the fiduciary on account of commissions to be repaid with interest in the amount of $51,870.10 as of the date of the decree.Regarding interest on the attorneys fees to be refunded, the amount paid to the fiduciary’s attorneys above the amounts allowed as attorneys fees totals $148,378.71, and interest shall run at the rate of 4 percent per annum from May 1, 2012 to the date of decision after trial (CPLR 5001). Interest on this amount to the date of the decision, April 11, 2017, totals $29,365.76, for a total of $177,744.47. Interest accrues on this amount under CPLR 5002 to the date the decree is entered at the statutory rate of 9 percent, which amount to the date of the decree is $14,244.75. Total attorneys fees plus interest to be repaid as of the date of the decree entered herewith is thus $191,989.22. Each beneficiary shall have judgment against the law firm of M&F, P.C. for their respective percentages of the trust remainder of this amount (see footnote one).Decree signed.Dated: March 2, 2018
