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SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 1969.NY.43202 <>; 304 N.Y.S.2d 930; 33 A.D.2d 1 October 23, 1969 IN THE MATTER OF THE ESTATE OF ELIZABETH M. HAAS, DECEASED Proceeding in the nature of prohibition under CPLR article 78 against Surrogate of Jefferson County. Daniel Scanlon and Henry H. Willmott for Ruth K. Child and National Bank of Northern New York. Dunk, Conboy, McKay & Bachman (Lawrence Conboy of counsel), in person and for the Watertown Cemetery Association. Fuller, Giles, Maloney, Marsh & Goodwin (Roy A. Fuller and Clarence F. Giles, Jr., of counsel), in person and for the Rector, Church Wardens and Vestrymen of "Trinity Church". Louis J. Lefkowitz, Attorney-General (Sidney L. Grossman of counsel), for the New York State Cemetery Board and Division of Cemeteries and charitable beneficiaries. Leon Schwerzmann, Jr., in person. Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ., concur. Author: Per Curiam

Proceeding in the nature of prohibition under CPLR article 78 against Surrogate of Jefferson County.

Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ., concur.

Author: Per Curiam

 This is a proceeding instituted by order requiring the Surrogate of Jefferson County to show cause (1) why he should not be restrained from further acting on the ground of his incapacitation as such judicial officer as to matters now pending in this estate or which may be presented subsequently therein and (2) why an opinion of the Surrogate dated June 26, 1969 should not be expunged. A proper understanding of the issues requires a factual statement.

Elizabeth Haas, the decedent, died in Jefferson County on January 15, 1966 at the age of 88 leaving a will dated January 24, 1955. Her estate at date of death was subsequently appraised for estate tax purposes in excess of $7,700,000. The executors named in the will -- an attorney and a Watertown bank -- subsequently qualified and have been represented by a firm of attorneys two of whose members are among the petitioners herein. The will made numerous specific bequests to various charities and to friends of testatrix but the major portion of the estate was left to two residuary legatees -- Trinity Episcopal Church of Watertown (herein "church") and Watertown Cemetery Association (herein "cemetery association"). The other two petitioners in this proceeding are members of the law firms which throughout have represented respectively the church and cemetery association.

Testatrix was survived by two nieces as her only next of kin and distributees. These individuals contested probate of the will alleging that the instrument was not properly executed; that testatrix was incompetent to execute the will and that it was the product of fraud and undue influence. They were represented by a Syracuse firm of attorneys, who have appeared in this proceeding, but are not petitioners. After there had been pretrial examinations of the witnesses to the will and others, including representatives of the church and cemetery association, one of the attorneys for contestants sought out the attorney for the church, and initiated settlement discussions. These discussions continued with the respective attorneys for the cemetery association and executors participating. Tentative agreement was eventually reached by the terms of which the objections to probate of the two nieces would be withdrawn on payment to each of them of $150,000 and each would renounce a specific legacy of $5,000.

At this point the several attorneys -- because of special legal provisions affecting cemetery associations and charitable gifts in trust -- considered concurrence of the Attorney-General and approval by the Supreme Court as prerequisites to completion of settlement. In passing it should be pointed out that only the Supreme Court had authority to authorize the cemetery association to pay money from its principal fund to contestants (Membership Corporations Law, ยง 86-a, subd. 2).

In the light of the subsequent innuendoes -- if not open charges -- by the Surrogate in his opinion of 96 single-spaced pages dated June 26, 1969 that this compromise settlement and subsequent approval thereof was the product of "collusion" among the respective attorneys and that the Attorney-General was "complacent and cooperative", it should be said that the record discloses that the proposed compromise was the subject of conferences in New York City attended by the First Assistant Attorney-General and the Assistant Attorney-General in charge of estates and trusts. It was at the suggestion of the latter two -- for legal reasons unnecessary here to state -- that the cemetery association agreed to increase its contribution from $150,000 to $175,000 which resulted in decreasing to $125,000 the amount contributed by the church. In addition the attorneys for the proponents consulted four outstanding attorneys in the Fifth Judicial District each of whom expressed an informal opinion that the proposed settlement was advantageous from the standpoint of the two residuary legatees. One of these attorneys was Chancellor of the Diocese of Central New York of the Episcopal Church, who specifically expressed his approval as Chancellor and advisor to the residuary legatee, Trinity Episcopal Church.

Thereafter and in September, 1966 the attorneys for the contestants brought a proceeding in Supreme Court, Onondaga County, seeking approval of the compromise of the controversy and authorizing the cemetery association to make such settlement. Following a hearing at which all the parties were represented by counsel and the Attorney-General appeared, an order was made on October 10, 1966 approving the proposed settlement and authorizing the cemetery association to pay its agreed share to the contestants.

It is this order that some two years later became the object of the wrath of the Surrogate and was the target for vituperative, intemperate remarks in his opinion, including the charges that the Justice of the Supreme Court who made the order was "inexperienced in the field and unfamiliar with the nature of the problem concerned" and that "contestants' attorneys either were sacrificing their clients' interests to their own" or "the contestants' chief attorney misrepresented the merits of their case to the Supreme Court." This unjudicial language permeates his answer in this proceeding where, among other things, petitioners herein are charged with "continuing to compound the perpetration of a fraud upon their clients and the ultimate beneficiaries of their clients, contrary to law, the Canons of Professional Ethics and public policy."

The attorneys for the executors thereafter moved to have the will admitted to probate. A lengthy hearing was held before the Surrogate on October 25, 1966. Thereat the Surrogate questioned closely all the attorneys who had appeared in the Supreme Court proceeding because, as the Surrogate phrased it, he had reservations "about this whole Supreme Court episode." He was openly critical of the Supreme Court order and expressed his intention to go to the Supreme Court Justice who made the order, "the Attorney General and the Judicial Conference. There has been no legitimate inquiry -- no inquiry at all -- I don't want the Supreme Court telling me how to run estates."

The proceeding was adjourned for one month and on November 30, 1966 the Surrogate made a decree admitting the will to probate. In a short memorandum the Judge stated that he was so doing "not because (the court) feels the compromise which the parties have entered into has been or can be justified on any of the grounds originally advanced by counsel, but rather because there has recently been uncovered an exceedingly dangerous tax threat to the residuary beneficiaries which at this late date in the proceeding can only be removed by the immediate probate of the will."

There the matter apparently ended and the administration of the estate proceeded in its normal course. So far as the record discloses for some two years the Surrogate accorded full faith and credit to the October 10, 1966 order of Supreme Court and to his decree of probate of November 30, l966, which, of course, recognized the validity of the Supreme Court order.

In early 1968 the respective attorneys for the church and cemetery association and a third attorney, who represented a charitable organization which received a specific legacy, commenced a proceeding (SCPA 2110) for allowances to be paid out of the estate as an expense of administration for their services in aid of probate of the will. The applications of counsel for the two residuary legatees were denied with leave to renew upon the ground that their papers were insufficient. The Surrogate by decision dated August 30, 1968 wrote "that neither (attorney) has the slightest concept of the proof involved in a proceeding of this kind." Curiously, however, the third attorney, who had not participated in the Supreme Court proceeding, was made an allowance although his papers were found by the Surrogate to be similarly defective.

This opinion of August, 1968 directed submission of a proposed order. Such was done and the instrument became the subject of a lengthy hearing on September 24, 1968. Thereat the attorneys for the first time disclosed that they proposed to appeal to this court from the denial of their applications for allowances. After considerable discussion the Surrogate directed his attention to the then two-year-old order of Supreme Court. Among other things he said: "I never to this day have agreed you had a valid judgment (from a named Justice of Supreme Court). I don't think to this day you can support that judgment. There were so many things wrong with it that I don't think you've got a valid determination to-day." Later in the hearing he questioned one of counsel as to why he went to the Supreme Court. When counsel replied that none of them should denigrate or question a decision of Supreme Court, the Surrogate replied: "I will denigrate a court, ...

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