Surrogate Mella
ESTATE OF ALBERT LEMER, Grantor (17-3402/C) — The issue in this contested miscellaneous proceeding is whether an instrument of resignation executed by petitioner, Deborah Solomon on October 5, 2017, as co-trustee of the Albert Lemer Revocable Trust (the “Trust”) was valid and effective as of November 4, 2017. Albert Lemer (“Grantor”) created the Trust on August 14, 2017, by a written agreement with Emily Myers Rutili Lemer (his wife) and petitioner, as co-trustees. Article EIGHTH Section C of the Trust Agreement provides, in relevant part, as follows: “Any Trustee appointed under this Agreement shall have the right to resign at any time and for any reason, as such Trustee shall determine is appropriate, by giving a written acknowledged notice to any other Trustee acting at such time, if any, or if not, to the successor Trustee. Such resignation shall be effective THIRTY (30) days after such notice is given to the other or successor Trustee.” On October 5, 2017, petitioner delivered to her co-trustee a purported instrument of resignation that was signed, but had no formal acknowledgment. Despite the absence of such formality, petitioner maintains that the instrument is valid and became effective as of November 4, 2017. According to pstitioner, the term “acknowledged” in the trust instrument should not be given the definition found in the Surrogate’s Court Procedure Act section 103(1) or Domestic Relations Law §236(B)(3), for example, which define “acknowledged” as being in the manner required for the recording of deeds. Instead, counsel submits that the term “acknowledged” as used in Article EIGHTH Section C of the Agreement was intended in its non-technical sense, entailing nothing more “than an expression of receipt, acceptance, or confirmation.” Counsel points out that even statutes governing formalities may use the term “acknowledged” as it is understood by a lay person (citing EPTL 3-2.1 [a][2] and [4] governing the formalities for executing wills). In their Verified Answer to the petition, respondents, decedent’s children and grandchildren, who are beneficiaries of the Trust, take a different position. They assert that petitioner’s resignation was not acknowledged in accordance with the plain language of the controlling Trust agreement and hat the October 5, 2017 instrument was therefore invalid.1 Additionally, they contend that petitioner knew her resignation was initially ineffective because, on August 20, 2018, almost one year later, she provided a formal acknowledgment to cure the defect. Accordingly, respondents submit that the effective date of petitioner’s resignation is September 19, 2018. While the court agrees with petitioner that the term “acknowledged” has two meanings, one technical and the other vernacular, in this legal document formally creating a trust, it should be read in its technical sense. The grantor set forth requirements for the resignation of a Trustee. The instrument requires the resigning trustee to “giv[e] a written acknowledged notice” to the co-trustee. The notice, as described by the instrument, would have to have been acknowledged before delivery to the co-trustee rather than acknowledged in its non-technical sense by the resigning trustee and the non-resigning co-trustee upon or after its delivery. Since petitioner formally acknowledged an instrument of resignation on August 20, 2018, the effective date of her resignation is September 19, 2018. This decision constitutes the order of the court. Clerk to notify. Date: January 9, 2020
