| Matter of Myers |
| 2007 NY Slip Op 08162 [45 AD3d 955] |
| November 1, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Trust Made by Douglas F. Myers. Richard P.Myers, Respondent; Douglas F. Myers, as Trustee of the Trust Made by Douglas F. Myers,Appellant. |
—[*1] Richard P. Myers, Corning, respondent pro se.
Cardona, P.J. Appeal from an order of the Surrogate's Court of Chemung County (Buckley,S.), entered November 22, 2006, which granted petitioner's application to direct respondent totransfer a deed to certain real property to petitioner.
The parties to this proceeding are brothers. Their late parents were the owners of two homes.On December 13, 2003, the parties' mother, Flora Myers, executed a last will and testamentproviding that, in the event that she survived her husband (who passed away in April 2004), shewas leaving the property located at "2055 Chambers Road, Beaver Dams, New York, Town ofCatlin, Chemung County" to respondent and the property located at "10 Crescent Drive, Town ofErwin and County of Steuben" to petitioner. Despite those provisions, on that same day, theparties' parents also executed a deed conveying to respondent the 10 Crescent Driveproperty earmarked for petitioner in the mother's will. In the deed, which was not recorded at thattime, the parents maintained a life estate in the property.
Subsequently, following the death of the parties' father, respondent executed a trustagreement on May 3, 2004, wherein he warranted that "he is holding title to [10 Crescent Drive][*2]for [petitioner] and either upon the demise of both theirparents or upon agreement and/or no later than five (5) years following the demise of the parentsthe hereinbefore mentioned property will be deeded over to [petitioner] by [respondent]." Itfurther stated that the "property is being held by [respondent] as a convenience for [petitioner]and his failure to turn this property over to [petitioner] . . . is contrary to his parents'wishes and these documents will serve as complete proof that the property is[petitioner's]."[FN1]On May 14, 2004, the December 2003 deed was recorded. The parties' mother passed away inJanuary 2005.
Thereafter, petitioner commenced this proceeding, pro se, in Supreme Court seeking an ordercompelling respondent to transfer 10 Crescent Drive to him in accordance with, among otherthings, the trust agreement.[FN2]The matter was subsequently transferred to Chemung County Surrogate's Court. Following ahearing in November 2006 with both parties present, the court directed that respondent transferthe 10 Crescent Drive property to petitioner by December 1, 2006, prompting this appeal.
Initially, we are unpersuaded by respondent's contention that the petition should have beendismissed because Chemung County was an improper venue for the proceeding. Proper venue forproceedings relating to lifetime trusts is the county where "(a) assets of the trust estate arelocated, or (b) the grantor was domiciled at the time of the commencement of a proceedingconcerning the trust, or (c) a trustee then acting resides" (SCPA 207 [1]; see Matter of Kelly, 17 AD3d 791,792 [2005]). Here, while there is no question that the 10 Crescent Drive property is located inSteuben County, there is nevertheless information in this record that supports the finding ofSurrogate's Court that respondent, who is the trustee, resided in Chemung County at theapplicable time. Accordingly, we are unpersuaded that venue was improper (see SCPA207 [1] [c]).
Respondent next contends that Surrogate's Court committed reversible error by takingpetitioner's testimony in violation of the Dead Man's Statute (see CPLR 4519). Notably,the statement in lieu of transcript supplied by the court does not establish that any such testimonywas adduced at the hearing and, in addition, there is no indication that respondent preserved thisissue by making an appropriate objection (see 40 NY Jur 2d, Decedents' Estates §1225). In any event, even assuming a proper objection, the Dead Man's Statute is not applicableherein since, although respondent was the administrator of his mother's estate, the instantproceeding is a trust proceeding and not a dispute concerning the proper disposition of adecedent's estate (see CPLR [*3]4519; Poslock vTeachers' Retirement Bd. of Teachers' Retirement Sys., 88 NY2d 146, 151 [1996]; seealso Matter of Wood, 52 NY2d 139, 144 [1981]).
Turning to respondent's challenge to Surrogate's Court's construction of the terms of the trustagreement, we agree that the language therein gave respondent discretion to select the date onwhich to transfer the subject property to petitioner, with the restriction that, in the absence of anagreement with petitioner, the transfer occur no later than five years after the death of bothparents. Notably, in construing the language of a trust, the most important consideration is thegrantor's "intention determined solely from the unambiguous language of the instrument itself"(Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256, 267 [1990]; seeMatter of Andrews v Trustco Bank, Natl. Assn., 289 AD2d 910, 911 [2001]). Here, thelanguage in the instrument does not require transfer of the property before the expirationof the five-year period in January 2010. Accordingly, the order directing that respondent transferthe property immediately must be reversed and, in doing so, we remit the matter to Surrogate'sCourt to determine the appropriate amount, if any, of an award to respondent, as trustee, ofreasonable reimbursement of expenses incurred in maintaining the trust property (seeRestatement [Second] of Trusts § 244; see also EPTL 11-1.1 [b] [22]).
Finally, we note that there is information in the record indicating that, at one point,respondent listed the trust property for sale. Significantly, respondent, as fiduciary, has a duty toact with the utmost good faith in the administration of a trust (see Mercury Bay Boating Clubv San Diego Yacht Club, 76 NY2d at 270). Accordingly, Surrogate's Court, on remittal,should determine whether an interim order is appropriate restraining respondent from disposingof the property without an order of that court (see Matter of Sherburne, 95 AD2d 859,859 [1983]; see also EPTL 7-2.4).
The remaining issues advanced by respondent, including his arguments related to personaljurisdiction, have been examined and found to be unpreserved and/or unavailing.
Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and matter remitted to the Surrogate's Court of Chemung County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: It appears that, although theparents wanted each of their sons to receive one of their houses, the 10 Crescent Drive propertywas put in trust for petitioner due to certain financial issues he was then experiencing.
Footnote 2: Petitioner also referenced hismother's will as a basis for relief, however, since she only possessed a life estate in the propertywhen she passed away, her interest in the property was extinguished at the time of her death(see 56 NY Jur 2d, Estates, Powers & Restraints on Alienation § 57).