Matter of Corbin
Annotate this CaseDecided on December 4, 2006
Sur Ct, Nassau County
In the Matter of the Estate of Leon J. Corbin a/k/a Leon Corbin, Deceased.
335600
Stuart R. Berg, P.C.
1205 Franklin Avenue
Garden City, NY 11530
(Attorney for Petitioners)
Joel M. Schwartz, Esq.
500 Old Country Road, Suite 312
Garden City, NY 11530
(Attorney for Objectant)
David Novick, Esq.
Schwartzapfel, Novick, Truhowsky & Marcus, P.C.
202 East Main Street
Suite 208
Huntington, NY 11743
(Attorney for legatees)
Robert Molic, Esq.
Attorney General of the State of New York
120 Broadway
New York, NY 10271
(Attorney for Ultimate Charitable Beneficiaries)
John B. Riordan, J.
In this contested probate proceeding, before the court is a motion brought on by order to show cause for the court's approval of a stipulation of settlement; the motion is opposed by the nominated executor and the nominated alternate executor. For the reasons that follow, the motion is granted.
The decedent Leon J. Corbin was survived by his daughter Ronnie C. Sampson and his son Jay Corbin as his sole distributees. The decedent's will dated August 27, 2004 left nothing to his two children, yet contained an in terrorem clause. A codicil dated November 1, 2004 directed the distribution to the two children of the net proceeds of the sale of the decedent's residence in Port Washington, New York. The will also contained a pre-residuary cash bequest to the decedent's brother of $250,000 and several other pre-residuary bequests of cash not exceeding $15,000 to more remote family members, friends and employees, and provided that the residue of the estate was to be distributed by the executor to charities of his choosing.
The probate petition was filed in the court on January 13, 2005. The decedent's daughter filed objections to the will on July 28, 2005. In the interim, the nominated executor, who was the attorney/draftsman of the will and codicil, was suspended from the practice of law for possibly criminal conduct unrelated to the administration of this estate and letters of temporary administration issued to the decedent's two children to marshal and protect estate assets during the pendency of the probate proceeding.
After considerable discovery and some motion practice, the proposed stipulation of settlement has been signed by: the decedents' children; his brother; several of the beneficiaries of the pre-residuary cash bequests; an Assistant Attorney General on behalf of the charitable beneficiaries; and by representatives of each of the proposed charitable beneficiaries.
The court's file reveals that all interested parties who did not sign the proposed stipulation were properly served with the order to show cause. The only objection to the proposed settlement comes from the nominated executor and the nominated alternate executor. The nominated executor has no pecuniary interest in the estate other than his possible right to statutory commissions; the nominated alternate executor is also bequeathed the sum of $5,000 under the will.
The first argument of the executor and alternate executor in opposition to the settlement is that it varies the terms of the will and therefore does not carry out the intentions of the testator. If that argument were to prevail, the court could never approve a settlement in a probate contest [*2]which varied the terms of the will in any respect, effectively precluding settlement in nearly every case. Although the objectants to the settlement concede that their consents as fiduciaries are not required (SCPA 2106[1][b]), they intimate that, nevertheless, the court should not approve the settlement over their objections. However, absent good cause, which has not been shown here, the courts will not permit a fiduciary to frustrate the settlement of a probate contest arrived at by the beneficiaries (Matter of Yuan, NYLJ, June 7, 2006 at 35, col 5; Matter of Colby, NYLJ, Jan. 16, 1997 at 30). Finally, the nominated executor and alternate executor argue that the shares of several of the beneficiaries, including the $5,000 bequest to the nominated alternate executor, have been diminished without their consent. However, all of those persons, including the nominated alternate executor, received the citation required by SCPA 1411 alerting them to the fact that objections had been filed, that their failure to appear on the return date of the citation would result in them receiving no further notice regarding the proceeding, and that "any settlement which is entered into and agreed to by all parties at the trial, hearing or conference, and any final determination by [the] court will be binding upon you and you may be required to contribute to such settlement an amount which bears the same proportion to the total amount of the settlement as your interest in the estate bears to the aggregate of the interests in the estate of all persons required to contribute to the settlement." The shares of those persons required to contribute to the closing were all reduced by one-third, thereby complying with the terms of the statute (SCPA 1411[6]).
The opposition to the proposed settlement is therefore dismissed
Settle decree.
Dated: December 4, 2006
JOHN B. RIORDAN
Judge of the
Surrogate's Court
The appearances of counsel are as follows:
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