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Wallach v. Wallach

Supreme Court of New York, Appellate Division

April 7, 1911

SIDNEY WALLACH, Individually and as Executor and Trustee of the Last Will and Testament of KARL M. WALLACH, Deceased, Appellant,
v.
BREINCHEN WALLACH, Individually and as Executrix and Trustee of the Last Will and Testament of KARL M. WALLACH, Deceased, and Others, Respondents.

APPEAL by the plaintiff, Sidney Wallach, individually and as executor and trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 27th day of December,

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1910, upon the decision of the court rendered after a trial at the New York Special Term.

COUNSEL

Alfred G. Reeves, for the appellant.

Achilles H. Kohn and Benjamin F. Wollman, for the respondents.

INGRAHAM, P. J.:

This action was brought by the plaintiff, individually and as executor and trustee under the last will and testament of Karl M. Wallach, deceased, against his coexecutors and trustees and those interested in the estate. The complaint alleges that the testator died on the 15th of November, 1909, leaving a last will and testament, a copy of which is annexed to the complaint, which will was duly admitted to probate by the surrogate of New York county. The testator had been married three times. He left him surviving his widow and children by each of his three marriages. The plaintiff was a son of the testator and was twenty-two years of age at the time of the testator's death.

After certain specific legacies the will gave to his executors and trustees $50,000 in trust for his wife during her life and upon her death or remarriage this sum of $50,000 was to become part of his residuary estate. All the rest, residue and remainder of his property he gave, devised and bequeathed to his executors in trust for the benefit of his children. The will appointed his wife, the plaintiff, and a son-in-law executors and trustees, provided, however, that they acted without compensation for their services as such executors and trustees, with the following direction: 'I direct that my said son Sidney shall be employed also as sole attorney and counsel for said executors and trustees in the settlement and management of my estate, and that he shall receive out of the income of my estate the sum of Two thousand dollars ($2,000) per year for his services as said attorney and counsel.' The action was brought by the testator's son Sidney, who was named in this clause of the will as the one to be employed as sole attorney and counsel for the executors and trustees, and demanded judgment for a judicial

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construction of the will to the end that it might be adjudged and determined whether or not the said provisions of the said 19th clause or paragraph of said will give all the executors and trustees then appointed an equal right in the settlement and management of said estate or whether the said defendants, executors and trustees should be compelled to employ the plaintiff as the sole manager thereof, as the active executor and trustee and continue the said services of the plaintiff as intended by the testator; and also whether under that clause of the will it was necessary to continue the said business of the deceased for the proper preservation of the assets of the said estate under the managment of the plaintiff or otherwise; that the defendants, executors and trustees be enjoined and restrained from employing any agents or counsel other than the plaintiff for the purpose of settling and managing the property interests of said estate in and about the business of the said decedent, or from interfering directly or indirectly with the plaintiff in and about the settlement and management of the business and the property interests of the said estate, and for other and further relief.

The court found that the plaintiff was admitted to practice as an attorney and counselor at law in the State of New York in the month of June, 1910, and became twenty-three years of age in November, 1910; that the plaintiff was ready and willing to perform the services of attorney and counsel to the estate, but the other executors refused to employ him and the plaintiff has demanded payment at the rate of $2,000 per year from the other executors which they have refused to pay; that the executors and trustees of the estate other than the plaintiff instituted a proceeding in the Surrogate's Court for direction with reference to the custody and control of the property and assets of the estate and claimed that they were entitled to a joint control with the plaintiff herein of the property and assets of the estate; that plaintiff was a party to that proceeding; that the surrogate of New York county determined said controversy upon the merits, and by decree duly entered granted to the plaintiff and to the said defendants joint control of all the property and assets of said estate, which decree was affirmed on appeal to this court. (137 A.D. 922.) And

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as conclusions of law, the court found that under the terms of the will of the deceased the plaintiff was not entitled to have the sole or general control or management of the estate; that the provisions of the will in relation to the plaintiff's connection with the estate as attorney and counsel should be regarded merely as an expression of a wish on the part of the testator which the executors and trustees may observe if in accord with their own judgment, but which they were not bound to regard; that under the terms of the will plaintiff had no authority to act as attorney and counsel for the said estate or for the executors and trustees in the settlement and management thereof; that plaintiff had no authority to represent any one of the executors and trustees as attorney and counsel until he is employed by such executors or trustees; that under the terms of the will plaintiff was not entitled to receive the annual compensation of $2,000 per year or any part thereof, and that the defendants recover from the plaintiff the costs of the action, with an extra allowance of $750 in favor of his coexecutors and trustees and an extra allowance of $250 to the guardians ad litem. Judgment was entered in accordance with this decision awarding to the defendants executors against the plaintiff $811.50 for costs and allowance, and to the guardians ad litem $307.25 costs and allowance. From that judgment the plaintiff appeals.

I can see no reason for the Supreme Court entertaining this action. The questions presented relate solely to the ordinary administration of the estate, which is under the control of the surrogate and to be determined by him from time to time as the questions arise. There is no question as to the validity of the trust contained in the will; no question as to the parties to whom either the corpus of the estate or the income was payable; and the question as to whether the plaintiff was entitled to the sole control of the estate or whether that was vested in all the executors had been determined by the Surrogate's Court in a proceeding to which the plaintiff was a party. The only question remaining was whether the plaintiff was ...


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