In re the Estate of Hunter , 775 N.Y.S.2d 42 ( 2004 )

OPINION OF THE COURT

Prudenti, PJ.

In this case, the petitioner Chase Manhattan Bank served as (1) an executor of a decedent’s estate and (2) a trustee of two separate testamentary trusts established by the decedent. For the sake of simplicity, we may refer to these two trusts as the Eighth (A) Trust and the Eighth (B) Trust.

A decree of the Surrogate’s Court dated June 1, 1977 (hereinafter the 1977 decree) discharged the petitioner from future liability in connection with its handling of the estate, and a decree of the same court dated December 10, 1981 (hereinafter the 1981 decree) discharged the petitioner from future liability in connection with its handling of the Eighth (A) Trust. The object-ant Pamela Townley Creighton,^* the income beneficiary of the Eighth (B) Trust, was among those who had a full and fair opportunity to raise any objections either to the petitioner’s management of the estate, or to its management of the Eighth (A) Trust, prior to the entry of the two decrees noted above. In the decree now under review, however, the Surrogate held that the objectant was not in all respects bound by those prior decrees (see Matter of Hunter, 194 Misc 2d 364 [2002]). We respectfully disagree.

Far from negating application of the doctrine of res judicata, the fact that the petitioner in this case functioned in a multiplicity of roles, or “wore multiple hats,” as executor and trustee, is a circumstance that, in light of the provisions of SCPA 2210 (10), warrants the conclusion that the doctrine of res judicata should apply with, if anything, stronger force than usual. It is only by virtue of the provisions of this statute that a beneficiary of a testamentary trust is entitled to formal notice of a proceeding in which the executor of the decedent’s estate seeks to be discharged. The doctrine of res judicata cannot logically have less force in the case of a person who actually received formal notice of a fiduciary’s application for the judicial settlement of an account, precisely because such application falls within the ambit of SCPA 2210 (10), than in the case of a person who received no such formal notice. We therefore conclude that the 1977 and 1981 decrees noted above are binding on all persons over whom jurisdiction was obtained and who were afforded a full opportunity to litigate the issues embraced in those decrees, including the objectant herein (see generally Pray v Hegeman, 98 NY 351, 358 [1885]; Matter of Ziegler, 161 Misc 2d 203 [1994], affd 213 AD2d 280 [1995]; Matter of Seaman, 275 App Div 484 [1949], affd 300 NY 756 [1950]; Matter of Buck, 267 App Div 328 [1943]; Matter of Chaves, 239 App Div 900 [1933], affg 143 Misc 868 [1932]; Matter of Hammond, 94 Misc 2d 760 [1978]; Krimsky v Lombardi, 78 Misc 2d 685 [1974], affd 51 AD2d 600 [1976]; Matter of Sutro, 71 Misc 2d 996 [1972]; Matter of Malkoski, 48 Misc 2d 98 [1965], affd 28 AD2d 826 [1967]).

Blanche D. Hunter died in December 1972. Paragraph “eighth a” of her will provided for the establishment of the Eighth (A) Trust for the benefit of her granddaughter Alice E Creighton. Paragraph “eighth b” provided for the establishment of the Eighth (B) Trust for the benefit of another granddaughter, the objectant Pamela Townley Creighton. Each of the trusts provided that, in the event that the granddaughter/ beneficiary were to die without issue, and without having exercised a power of appointment, the corpus of the trust would be added to the principal of the other trust. Hunter’s will designated a predecessor of the petitioner as one coexecutor, and James W. Cook as the other coexecutor. The petitioner’s predecessor and Cook were also named as cotrustees of the two trusts noted above.

The decedent’s will was admitted to probate in 1973. In 1976 the petitioner’s predecessor and Cook commenced a proceeding to judicially settle their account as coexecutors of the estate. The objectant was served with process, appeared by counsel, and filed certain objections not relevant here. In the 1977 decree, the Surrogate’s Court settled the account of the petitioner’s predecessor and Cook as coexecutors. The 1977 decree directed, in part, that, upon the conditions stated, and subject to a reservation not relevant here, “the said Executors be and hereby are released from all further liability and responsibility as such Executors to all matters embraced in their Account and this Decree.”

Alice died in 1980. The petitioner’s predecessor and Cook, as cotrustees of the Eighth (A) Trust, filed a petition dated July 31, 1981, seeking a judicial settlement of their accounting as co-trustees of this trust. The objectant executed an instrument in which she waived citation and consented “that a decree be made settling the account of [the petitioner’s predecessor] and James W. Cook, as Trustees under ‘eighth a‘ of the will of Blanche D. Hunter, deceased.” The Surrogate’s Court, in the 1981 decree, finally settled this account. This decree also contained a provision releasing and discharging the cotrustees “from all further liability and responsibility as such Trustees as to all matters embraced in their Account and this Decree.”

Cook died in 1996. In November 1997 the petitioner commenced the present proceeding for a judicial settlement of its intermediate account as trustee of the Eighth (B) Trust. This petition covered the 23-year period from the date that the trust was initially funded in 1973 until the time of Cook’s death in 1996. After having been relieved of her initial waiver and consent, the objectant herein was permitted to file objections, including those now under review (see Matter of Hunter, 190 Misc 2d 593 [2002]).

In the objections under review in this case, the objectant asserted, in effect, that the petitioner (or its predecessor) acted improperly as executor of the decedent’s estate in permitting an unreasonably high percentage of the estate’s assets to remain invested in a particularly ill-fated security, that of stock in the Eastman Kodak Company (hereinafter Kodak). The objectant also asserted that the petitioner (or its predecessor) similarly acted improperly as trustee of the Eighth (A) Trust in failing to divest that trust of Kodak stock. There is no doubt that the objectant had every opportunity to assert those very same objections prior to the entry of the 1977 and 1981 decrees noted above. As she acknowledges in her brief, the objectant “could have objected in [the estate accounting] proceeding to the failure of the [petitioner] as executor to diversify the estate assets in 1973.”

Despite the fact that the objectant had already had a full and fair opportunity to litigate the issue concerning the petitioner’s (or the petitioner’s predecessor’s) allegedly improvident concentration of estate assets in Kodak stock, and despite the fact that the objectant has already had a full and fair opportunity to litigate the issue concerning the petitioner’s (or the petitioner’s predecessor’s) allegedly improvident concentration of assets belonging to the Eighth (A) Trust in Kodak stock, the Surrogate denied the petitioner’s motion to dismiss the objections now under review, and thus permitted the objectant to re-litigate these very same issues in connection with the present proceeding for a voluntary intermediate accounting relating to the Eighth (B) Trust. This was error. While the objectant may of course challenge the petitioner’s management of the Eighth (B) Trust on whatever ground she sees fit, she may not, in effect, reopen the accounting proceedings pertaining to the Eighth (A) Trust or the estate.

The general rule is that every decree of the Surrogate’s Court is conclusive as to all matters embraced therein against every person over whom jurisdiction was obtained (see Pray v Hegeman, 98 NY 351, 358 [1885], supra; Matter of Ziegler, 161 Misc 2d 203 [1994], affd 213 AD2d 280 [1995], supra; Matter of Seaman, supra; Matter of Campbell, 267 App Div 783 [1943], affg In re Campbell’s Will, 38 NYS2d 827 [1942]; Matter of Chaves, supra; Matter of Hammond, supra; Krimsky v Lombardi, supra; Matter of Sutro, supra; Matter of Malkoski, supra; see also Wallace v Ford, 44 Misc 2d 313 [1964]; Matter of Van Deusen, 24 Misc 2d 611 [1960]; Matter of Jones, 13 Misc 2d 678 [1958]; Matter of Payne, 12 Misc 2d 861 [1958]; Matter of Crawford, 207 Misc 145 [1955]; Matter of Floesch, 197 Misc 753 [1950]; Matter of Edwards, 196 Misc 997 [1949]; Matter of Slote, 188 Misc 144 [1946]; Millard v McFadden, 185 Misc 771 [1945]; Matter of Renn, 181 Misc 976 [1943]; Matter of Massimino, 143 Misc 119 [1932]; Matter of Menzie, 54 Misc 188 [1907]). This rule had become so embedded in estate and trust practice, and was so widely recognized, that the drafters of the Surrogate’s Court Procedure Act saw no need to include a provision similar to that found in former section 274 of the Surrogate’s Court Act, which had codified the rule. “It was considered unnecessary to restate this provision in the SCPA because ‘it states a self-evident fact, that every decree whether upon an accounting or otherwise is binding upon all persons of whom jurisdiction was obtained’ ” (Matter of Ziegler, supra at 205, quoting Revisers’ Notes, McKinney’s Cons Laws of NY, Book 58A, SCPA 2226, at 292 [now section 2227]; see Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 2227, at 269).

The doctrines of res judicata and collateral estoppel have, if anything, expanded in scope in the years that have gone by since the time that many of the cases cited above were decided. New York has adopted the “transactional” approach in deciding res judicata issues (see O’Brien v City of Syracuse, 54 NY2d 353 [1981]; Matter of Reilly v Reid, 45 NY2d 24 [1978]), recognizing that “considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation” (Matter of Reilly v Reid, supra at 28). The Court of Appeals has stated that the doctrine is “strong enough ... to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided” (id.). The rule has accordingly been recognized that “[u]nder the general precepts of res judicata, an accounting decree is conclusive not only as to issues which were actively presented and determined, but as to those which could have been raised regarding all matters set forth in the accounting” (Matter of Ziegler, supra at 204-205, citing Scott, Trusts § 220, at 374; Matter of Roche, 259 NY 458 [1932]; Staples v Mead, 152 App Div 745 [1912]; Matter of Crawford, supra; Matter of Van Deusen, supra; Matter of Chapin, 171 Misc 783 [1939]; see also Matter of Rudin, 292 AD2d 283 [2002], affg NYLJ, Mar. 2, 2000, at 30, col 2; Matter of Hofmann, 287 AD2d 119 [2001]).

Contrary to the determination of the Surrogate, we find that there are no special circumstances that would warrant departure from this rule in this case. That the executor of the estate, the trustee of the Eighth (A) Trust and the trustee of the Eighth (B) Trust were one and the same entity presents a circumstance that is far from unusual. The dual or tripartite capacity of the petitioner, or its predecessor, does not alter the applicability of the basic rule according to which a party who has had a full and fair opportunity to litigate any particular issue in one proceeding should not be permitted to relitigate the very same issue in a subsequent proceeding.

To negate the operation of the doctrine of res judicata in the case at hand is to render meaningless the provisions of SCPA 2210 (10). SCPA 2210 sets forth the categories of persons who must be served with process in connection with a voluntary judicial settlement of the account of a fiduciary. If an executor is seeking a voluntary settlement of his or her account, the general rule is that he or she need not issue process to the beneficiaries of testamentary trusts. Ordinarily, it is not necessary for an accounting executor to serve citations upon any of the trust beneficiaries on the presumption that the interest of the beneficiaries is sufficiently protected by citing the trustee (see Matter of Ziegler, 157 Misc 2d 423, 427 [1993]; Matter of Levy, 130 Misc 2d 370, 373 [1985]; Matter of Miles, 31 Misc 2d 464 [1961]).

The case is decidedly different where a fiduciary is accounting to himself or herself. SCPA 2210 (10) states, in part, “[w]here an accounting fiduciary accounts to himself in a separate capacity as [a] . . . trustee ... it shall not be sufficient to issue process to or obtain the appearance of the accounting party in such separate capacity only, but in addition process shall issue to all persons interested in . . . the trust of which the accounting party is trustee.” SCPA 2210 (10) reflects the rule, derived from Fisher v Banta (66 NY 468 [1876]), that those who have a beneficial interest in a trust or estate “ought not to be concluded by a proceeding instituted by [the trustee or executor] against himself’ (Fisher v Banta, supra at 482; see also United States Trust Co. of N.Y. v Bingham, 301 NY 1 [1950]; Matter of Buck, supra; Matter of Massimino, supra). SCPA 2210 (10) essentially codifies the holding of Fisher, recognizes the rule that “an accounting fiduciary [may account] to himself in a separate capacity,” and requires that, in any such accounting proceeding, “process shall issue to all persons interested” so as to ensure that the ensuing decree will be conclusive. Under the approach adopted by the Surrogate and by our colleague in the dissent, the 1977 decree and the 1981 decree have no more preclusive effect with respect to the objectant than they would have had if the terms of SCPA 2210 (10) did not exist and if, in accordance with the general rule, the objectant had thus not been cited in connection with the proceedings that culminated in those decrees.

The Surrogate relied upon sections 177 and 223 (2) of the Restatement (Second) of Trusts. The former provision states, “[T]he trustee is under a duty to the beneficiary to take reasonable steps to realize on claims which he holds in trust.” The latter provision defines circumstances under which a trustee may be liable to the beneficiary for a breach of trust based on his or her failure to redress a breach of trust committed by a predecessor trustee. Neither provision addresses the issue presented in this case: whether the beneficiary of the Eighth (B) Trust is bound by prior decrees discharging the executor of a decedent’s estate, and discharging the trustee of the Eighth (A) Trust, where such beneficiary had a fair opportunity, prior to the entry of those decrees, to raise the same issues that she now seeks to litigate in the context of an accounting proceeding relating to the Eighth (B) Trust. Contrary to the statements made by our colleague in the dissent, our holding in no way relieves a trustee of its duty to act in good faith; we assert only that a person who has been aggrieved by any breach of this duty may not raise such a claim in a subsequent proceeding, after having already had a full and fair opportunity to litigate it in a prior proceeding.

The conclusion of the Surrogate in this case, like that of the cases from other jurisdictions that could be cited in support (e.g. Pepper v Zions First Natl. Bank, N.A., 801 P2d 144 [Utah 1990]; Matter of Kemske, 305 NW2d 755 [Minn 1981]; contra Carr v Bank of Am. Natl. Trust & Sav. Assn., 11 Cal 2d 366, 79 P2d 1096 [1938]), is based on application of the rule set forth in Restatement (Second) of Judgments § 36 (2). This rule states that “[a] party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.” (Id.)

We may assume, for the sake of argument, that this rule accurately reflects the general common-law rule as it stands in this state, and that, in the absence of any statute providing otherwise, this rule would prevent the petitioner, in its capacity as trustee of the Eighth (B) Trust, from enjoying “the benefits of the rules of res judicata” (Restatement [Second] of Judgments § 36 [2]) based on the 1977 and 1981 decrees that were obtained by it (or its predecessor) in different capacities as executor and as trustee of the Eighth (A) Trust. The fact remains that, as noted above, New York has a statute, SCPA 2210 (10), the clear intent of which is to provide that fiduciaries who, in one capacity, are accounting to themselves in another capacity, may obtain valid and conclusive judgments that will bind all those interested persons who have been duly cited and who have appeared. In other words, assuming that the rule of the Restatement (Second) of Judgments quoted above is valid as a general matter in this state, its operation in the context of fiduciaries who properly account to themselves pursuant to SCPA 2210 (10) has been preempted by the terms of that statute.

Many of the foreign cases cited by the Surrogate are distinguishable in that they do not involve statutes that are analogous to SCPA 2210 (10). In Matter of Kemske (305 NW2d 755 [Minn 1981], supra), for example, a Minnesota statute (Minn Stat former § 525.481) apparently authorized the very thing that SCPA 2210 (10) prohibits, that is, a decree finally approving the account of an executor who has accounted to himself only, and the objectants claimed that they had “never received notice of the hearing on the final account” (Matter of Kemske, supra at 762). Here, by way of contrast, the objectant had notice of the proceedings that led to the 1977 and the 1981 decrees.

The foreign cases relied upon by the Surrogate are also distinguishable on a variety of other grounds. In Pepper v Zions First Natl. Bank, N.A. (801 P2d 144 [Utah 1990], supra), for example, the objectants failed to appear in the original probate hearing, and had later sought to vacate the determination made after that hearing on the basis of excusable neglect, only to have their motion denied based on its untimeliness. The court in Pepper found there was an issue of fact as to whether “the plaintiffs . . . were in fact prevented by fraud or misrepresentation from litigating [their] allegations of mismanagement and self-dealing” (id. at 151). Here, there is no indication that any fraud on the part of the petitioner prevented the objectant from raising any issues during the proceedings that culminated in the 1977 and 1981 decrees.

The holding of the Surrogate in this case may not be upheld on the theory that the claims that the objectant now seeks to advance are any different from those that she could have advanced before, or on the theory that the prior proceedings did not afford her the opportunity to advance her current claims. This argument, seemingly adopted by our colleague in the dissent, is based in large part upon acceptance of the premise that there is a distinction of substance between (a) a claim that the petitioner, or its predecessor, is answerable to the objectant based on its mismanagement of the decedent’s estate and based on its mismanagement of the Eighth (A) Trust, and (b) a claim that the petitioner, or its predecessor, is answerable to the objectant based on its failure, in its capacity as trustee of the Eighth (B) Trust, to object to its own mismanagement of the decedent’s estate or to its own mismanagement of the Eighth (A) Trust. Whatever semantic difference there might be between the two formulations noted above, it is beyond dispute that, under either formulation, the wrongful conduct sought to be redressed relates to the petitioner’s, or to its predecessor’s, alleged mismanagement of the decedent’s estate, and of the Eighth (A) Trust. The dissent acknowledges that the objectant may not pursue her claim under the former formulation, because that claim is precluded under principles of res judicata, but that she may do so under the latter one. If we could find in the dissent any explanation as to why the difference between these two formulations is anything more than purely semantic, we would have no hesitation in concurring and voting to affirm.

The elaborate periphrases to which the objectant was forced to resort in drafting her objections illustrate the specious nature of her argument to the effect that her current claims are in fact different from those that, as she acknowledges, could have been pursued earlier. For example, the objectant asserts that “the Bank [as trustee of the Eighth (B) Trust] . . . failed to require itself upon its appointment as executor of the estate of Blanche Hunter to divest itself of the concentration of Eastman Kodak stock.” This is no different from making an assertion to the effect that the bank failed upon its appointment as executor of the estate of Blanche Hunter to divest itself of the concentration of Kodak stock. The dissent appears to acknowledge that the objectant is barred by the doctrine of res judicata from pursuing an objection couched in the latter terms. Why, then, the same objection, when couched in the substantially identical albeit more roundabout former terms, may be pursued, in apparent violation of the doctrine of res judicata, has not been adequately explained.

The petitioner states, on appeal, that the objectant’s “arguing that [the petitioner], as Trustee, had a duty to compel itself as Executor to diversify the portfolio in 1973 is precisely the same as [her] arguing that Chase, as Executor, had a similar obligation.” As outlined above, this statement is undoubtedly correct; the difference between the two propositions is semantic only. We most respectfully submit that it is an undue focus on form, as opposed to substance, that has led the dissent to conclude that the objectant herein should'be permitted to advance, by way of much laborious circumlocution, the very same claims that she is admittedly precluded from advancing by way of plain and direct English.

The opinion of the Surrogate reflects an extension of the rule announced in Fisher v Banta (66 NY 468 [1876], supra), according to which those who have a beneficial interest in a trust or estate “ought not to be concluded by a proceeding instituted by [the trustee or executor] against himself’ (id. at 482). That rule might properly be applicable where, as in Fisher, the persons interested had no formal notice of the prior proceeding in question. Approval of the viewpoint expressed by the Surrogate would represent an extension of this rule even to those cases where the persons interested not only had notice of the prior proceeding, but actually participated in it. What this means, in the final analysis, is that fiduciaries who serve in multiple capacities will never have the ability to obtain judgments that have fully preclusive effect. Adoption of such a rule would certainly discourage persons or institutions from functioning in multiple fiduciary capacities, albeit specifically chosen by the testator for their qualifications and expertise.

It is well-settled that the testator “enjoys the right to determine who is most suitable among those legally qualified to settle his affairs and execute his will” (Matter of Leland, 219 NY 387, 393 [1916]) and a potential conflict of interest does not warrant the replacement of the fiduciary (see Matter of Shaw, 186 AD2d 809 [1992]; Matter of Marsh, 179 AD2d 578 [1992]). The rule proposed by the dissent would force the replacement of a fiduciary whenever a fiduciary accounted to itself in a separate capacity, in derogation of these well-settled principles of law.

Under settled New York law, a fiduciary who desires the protection of a decree discharging it from future liability may voluntarily petition the court to approve its final account. A fiduciary who petitions the Surrogate’s Court for a final judicial settlement of its account, who properly serves citations on all interested parties as defined in the governing statutes, who otherwise follows the procedure prescribed by law, and who obtains a decree finally settling its account is fully entitled to the protection referred to above. To affirm the order insofar as appealed from in this case would go a long way toward depriving fiduciaries in this state of this protection, particularly where, as is often the case, a single person or entity is serving as a fiduciary in various capacities, in accordance with the clear intent of the testator.

We note, in conclusion, that nothing in our decision prevents the objectant from contesting the petitioner’s management of the Eighth (B) Trust. The objections to the management of the assets in the Eighth (B) Trust were properly raised, since there was no prior decree judicially settling an intermediate account with respect to that trust. The decree settling the account with regard to the Eighth (A) Trust is not binding with respect to the management of assets in the Eighth (B) Trust, even if the petitioner followed the same plan and engaged in the same conduct with respect to both trusts. The propriety of the management of the assets of the Eighth (A) Trust and the management of assets of the Eighth (B) Trust involve separate and distinct issues: what was proper for the Eighth (A) Trust for the benefit of Alice E Creighton was not necessarily proper for the Eighth (B) Trust for the benefit of the objectant (see Meredith v First Trust Co. of Albany, 260 App Div 517 [1940]).

In sum, objections to the failure of the petitioner’s predecessor-in-interest to contest its own voluntary accountings as executor of Hunter’s estate and as trustee of the Eighth (A) Trust should have been dismissed.

For the foregoing reasons, the order under review should be modified, on the law, by deleting the provisions thereof denying those branches of the petitioner’s motion which were to dismiss objection 4, so much of objection 5 as charged the petitioner’s predecessor-in-interest with failing to inform and advise the objectant of the risk of maintaining a concentration of Kodak stock in the estate, objection 8 (a) through (f), and so much of objection 8 (g) as charged the petitioner’s predecessor-in-interest with failing “to undertake a formal analysis and establish an investment plan for the Article Eighth A” trust, and objection 9 and substituting therefor provisions granting those branches of the motion. As so modified, the order should be affirmed insofar as appealed from.

* Pamela Townley Creighton died on December 3, 2002. Judith Chinello and Stan Mandell, the administrators c.t.a of her estate, as well as Margaret Hunter and Pomona College, the appointees of the trust corpus, have been substituted as the objectants herein. For the sake of clarity, however, this opinion will refer to Pamela Townley Creighton as the objectant.