In re the Accounting of La Boyteaux

Maximilian Moss, S.

In this accounting by a substituted trustee and the executrix of the estate of a deceased cotrustee, the surviving trustee seeks leave to resign and prays for the appointment, as substituted and successor trustees, of a contingent remainderman (who is the son of the deceased trustee) and the Bungs County Trust Company.

The special guardian in behalf of his several wards has filed objection to the appointment of the nominated individual on the ground that such additional appointment would result in unnecessary expense to the estate of an additional full commission .The special guardian also contends that inasmuch as the will provided for only one trustee to administer the testamentary trusts, the appointment of an additional trustee would be contrary to the testator’s intention.

The testator’s will, which is dated January 13, 1899, nominated an executor who after rendering his account as executor qualified as trustee of the testamentary trusts provided under the will. The will makes no provision for the designation of a successor trustee. Section 168 of the Surrogate’s Court Act authorizes the appointment of a successor trustee but makes no provision for the appointment of additional successor trustees, although the existence of such power has been recognized where the interests of the estate and the parties will be served thereby (Gilbert v. Wise, 192 Misc. 101; Matter of Guernsey, 10 Misc 2d 546). Under the provisions of subdivision 6 (par. [a]) of section 285-a of the Surrogate’s Court Act, where the gross value of the principal of the trust accounted for exceeds $100,000, each trustee is entitled to full commission. Nomination of a corporate trustee whose experience and reputation are long established satisfies the court that the designation of an added trustee would under the circumstances result in unwarranted and needless expense. The objections raised by the special guardian are, therefore, sustained. The special guardian is commended for the question of law raised by him in the protection of his wards, coupled with the exercise of good business judgment. The court will designate the Kings County Trust Company as the sole successor trustee.