| Matter of Hyde |
| 2009 NY Slip Op 02491 [61 AD3d 1018] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of a Trust Created by Charlotte P. Hyde, Deceased.Glens Falls National Bank and Trust Company et al., as Trustees of a Trust Created by CharlotteP. Hyde, Deceased, Petitioners; Carol J. Whitney, as Executor of Louis H. Whitney, Deceased, etal., Respondents, and Mary W. Renz et al., Appellants. (Proceeding No. 1.) In the Matter of aTrust Created by Nell Pruyn Cunningham, Deceased. Banknorth, N.A., et al., as Trustees of aTrust Created by Nell Pruyn Cunningham, Deceased, Petitioners; Carol J. Whitney, as Executorof Louis H. Whitney, Deceased, et al., Appellants-Respondents, and Mary W. Renz,Respondent-Appellant, et al., Respondents. (Proceeding No. 2.) |
—[*1] Judge & Duffy, Glens Falls (Monica A. Duffy of counsel), for respondents in proceedingNo. 1 and appellants-respondents in proceeding No. 2.
Cardona, P.J. (1) Appeals from an amended order of the Surrogate's Court of Warren County(Hall, Jr., S.), entered August 14, 2007, which, among other things, denied the cross motion ofrespondents Mary W. Renz, Franklin Todd Renz, Gavin W. Renz and Mary Eliza PruynRenz-Uitti for reallocation of trustees' counsel fees in proceeding Nos. 1 and 2, (2) cross appealsfrom a decree of said court, entered September 13, 2007, which, among other things, judiciallysettled the intermediate accounts in proceeding No. 2, and (3) appeal from a decree of said court,entered July 14, 2008, which, among other things, judicially settled the intermediate accounts inproceeding No. 1.
These proceedings arise out of two trusts; one was created by Charlotte P. Hyde in her lastwill and testament (hereinafter the Hyde trust) and the other was an inter vivos trust created byNell Pruyn Cunningham (hereinafter the Cunningham trust). The Hyde trust provides that Hyde'sgrandchildren, respondent Mary W. Renz (hereinafter Renz) and Louis H. Whitney (hereinafterWhitney), receive equal shares of the trust income during their lifetime. Upon Whitney or Renz'sdeath, the principal of their respective shares is to be distributed to all of Hyde's livinggreat-grandchildren. Renz has three children, respondents Franklin Todd Renz, Gavin W. Renzand Mary Eliza Pruyn Renz-Uitti (hereinafter collectively referred to as the Renz children).Whitney has two children, respondents Charlotte P. Whitney and Louis H. Whitney II(hereinafter collectively referred to as the Whitney children). Upon Whitney's death in January2008,[FN1]all five great-grandchildren received a one-fifth interest in the principal of his share of the [*2]trust.
The Cunningham trust term is measured by the lives of Cunningham's grandnephews,petitioners Samuel P. Hoopes and Byron J. Lapham Jr. During the trust term, Renz and Whitneywere to receive an undivided one-sixth interest in the trust income, with a contingent remainderof one sixth of the principal if they are still alive at the end of the trust terms. Upon Whitney'sdeath, his children received equal shares of his one-sixth income interest and became contingentremaindermen of one sixth of the trust principal.
In October 2001, the trustees of the Hyde trust commenced proceeding No. 1 for anintermediate accounting for the time period of March 1980 to October 2000. Similarly, inFebruary 2003, the trustees of the Cunningham trust commenced proceeding No. 2 for anintermediate accounting to settle the accounts for the period of January 1982 to January 2003.Whitney and the Whitney children filed numerous objections to the Hyde accounting andWhitney filed numerous objections to the Cunningham accounting, seeking to deny petitioners'commissions and impose a surcharge on the ground that petitioners did not diversify theinvestment portfolios of the trusts. Following a joint trial, Surrogate's Court dismissed theobjections and such decision was affirmed on appeal (44 AD3d 1195 [2007], lv denied 9NY3d 1027 [2008]).
Thereafter, Renz and the Renz children renewed a previous cross motion to direct that all thelitigation expenses incurred by petitioners in defending the Whitney objections be paid by theinterests of the Whitney children in the Hyde and Cunningham trusts. By an amended decisionand order in August 2007, Surrogate's Court denied that cross motion. Thereafter, in September2007 and July 2008, the court judicially settled the intermediate accountings of the trusts. Renzand the Renz children now appeal from the August 2007 order.[FN2]Renz also cross-appeals from the September 2007 decree and appeals from the July 2008 decreeto the extent that such decrees incorporate or rely upon the August 2007 order.
We find no error in Surrogate's Court charging the trusts generally with the litigationexpenses incurred by petitioners in defense of the Whitney objections rather than reallocatingthose expenses solely to the Whitney children's interests in the trusts. In general, parties to acontroversy are required to pay their own counsel fees. Upon fixing the amount of counsel feesto be paid for services to an estate, Surrogate's Court is authorized to "direct payment thereforfrom the estate generally or from the funds in the hands of the fiduciary belonging to any legatee,devisee, distributee or person interested" (SCPA 2110 [2]). Nevertheless, the Court of Appealshas held that "SCPA 2110 does not authorize payment for legal services rendered a party to becharged against the share of other individual parties" (Matter of Dillon, 28 NY2d 597,599 [1971]). Inasmuch as Surrogate's Court was not authorized to charge the Whitney's share ofthe trusts for the counsel fees incurred by petitioners in defense of the Whitney's objections, thecross motion by Renz and the Renz children was properly denied. Furthermore, despite theRenzes' contention to the contrary, we find no basis to distinguish this case from Matter ofDillon (supra).[*3]
Peters, Rose, Lahtinen and Kane, JJ., concur. Orderedthat the amended order and the decrees are affirmed, without costs.
Footnote 1: Following Whitney's death, hiswidow and executor, respondent Carol J. Whitney, was substituted for him in both of theseproceedings by order entered April 2008. Similarly, the Whitney children were simultaneouslyjoined as respondents in proceeding No. 2.
Footnote 2: Although Whitney and theWhitney children appealed from the September 2007 decree, that appeal has admittedly not beenperfected and, therefore, their appeal is deemed abandoned (see 22 NYCRR 800.12).