Opinion
2013-439/D and 2014-3584/B
03-20-2019
In the MATTER OF the Judicial Settlement of the Accounts of Jeffrey C. ALLES, as Executor of the Estate of Harry R. Alles, Deceased, late of the Town of Hamburg. In the Matter of the Judicial Settlement of the Accounts of Jeffrey C. Alles, as Trustee of the Harry R. Alles Revocable Living Trust Dated June 11, 2001.
COLE, SORRENTINO, HURLEY, HEWNER & GAMBINO, PC, Attorneys for Jeffrey Alles, Thomas F. Hewner, Esq., of Counsel BARCLAY DAMON LLP, Attorneys for Objectant Jonathan Alles, Jennifer G. Flannery, Esq., of Counsel PHILLIPS LYTLE LLP, Attorneys for Objectant Jeanne deKeyserling, Sharon L. Wick, Esq., and Amanda L. Lowe, Esq., of Counsel
COLE, SORRENTINO, HURLEY, HEWNER & GAMBINO, PC, Attorneys for Jeffrey Alles, Thomas F. Hewner, Esq., of Counsel
BARCLAY DAMON LLP, Attorneys for Objectant Jonathan Alles, Jennifer G. Flannery, Esq., of Counsel
PHILLIPS LYTLE LLP, Attorneys for Objectant Jeanne deKeyserling, Sharon L. Wick, Esq., and Amanda L. Lowe, Esq., of Counsel
Acea M. Mosey, J.
Decedent died on December 13, 2012, at the age of 90. His wife had predeceased him in May, 2010, and he was survived by five children: Jeffrey Alles [hereafter, Jeffrey], Claire Nelligan [hereafter, Claire], Mary Johnson [hereafter, Mary], Jeanne deKeyserling [hereafter, Jeanne], and Jonathan Alles [hereafter, Jonathan]. According to decedent's death certificate, for the last year of his life, from December 20, 2011 until his death, decedent resided in a nursing home in Springville, New York.
Decedent's Will, dated June 3, 2010, was executed by him in the State of Florida. The Will left all decedent's "tangible personal property" to be distributed "in accordance with a written statement" which was prepared pursuant to Florida law. The balance of decedent's estate, after payment of debts and administration expenses, was to be paid over to an inter vivos trust set up by him on June 11, 2001 and known as the HARRY R. ALLES REVOCABLE LIVING TRUST [hereafter, the Trust]. Article III of the Will provided in that regard as follows:
"The said rest, residue, and remainder of my estate shall be added by such Trustee(s) to the trust assets which are being held under said Declaration of Trust at the time of my death and shall thereafter be held, administered, and disposed of by such Trustee(s) as a part of the Trust Estate to which the same is added, all in accordance with and subject to the terms, conditions, and provisions of said Declaration of Trust as now written and as hereafter amended. The receipt by said Trustee(s) shall be full and sufficient discharge and acquittance of my Personal Representative and, since the foregoing is not intended to be and shall not be construed as creating a testamentary trust, said Trustee(s) shall not be required to make any accountings of any kind to any Probate Court."
Jeffrey, the nominated executor, filed a petition to probate that Will in this court onJanuary 23, 2013. Waivers and Consents were filed by Jeanne, Claire and Mary, and a citation was issued to Jonathan, who then appeared by counsel and indicated that objections to the Will might be filed. Ultimately, Jonathan's attorney stated that no objections would be filed. The Will was admitted to probate on September 6, 2013, and Jeffrey was issued full letters testamentary that same date.
Jeffrey had been issued preliminary letters on March 4, 2013.
On February 20, 2015, Jeffrey filed petitions for judicial settlement of his final accounts both as executor of his father's estate and as trustee of his father's Trust. Following various discovery proceedings, including an SCPA 2211 examination of Jeffrey, objections were filed by Jonathan and by Jeanne with respect to both the estate and the Trust accountings.
This Court then set both matters down for an evidentiary hearing before the Chief Attorney of this court, as referee to hear and report. The parties consented to that procedure, and the hearing took place over two days in February and April 2016. The parties also waived the issuance of a written referee report, and consented that the Court might decide the issues based upon the testimony taken at the hearing and the documentary evidence submitted.
The parties were given an opportunity at the conclusion of the hearing to submit written legal arguments about issues in dispute, and those papers were thereafter filed. Because there were some issues in the accountings which needed to be clarified, oral argument was held before the referee on October 6, 2016. During that proceeding, it became clear that the Trust accounting had been incorporated into the estate accounting as well, but without indicating that the Trust accounting was really a combined Trust and estate accounting. Counsel for the fiduciary acknowledged that this was "confusing", and Jonathan's attorney said "these are a mess and that's causing a lot of the issues."
Further submissions were made by the parties after the October, 2016 appearance. Then, by Memorandum and Order issued March 27, 2017, this Court [Howe, J.] found that the accountings in both matters had to be amended, citing Matter of Usborne , 213 App Div 395, 397-398 [1925], Matter of Gilas , NYLJ, April 7, 1998, at 26, col 6, and Matter of Alpert , NYLJ, Jan. 27, 2010, at 34, col 4. In particular, the Court directed that the Trust accounting was to be separated out from any accounting for estate transactions, and the fiduciary was directed to file a separate accounting for the estate as well as a separate accounting for the Trust (without the estate accounting merged into it).
The accountings were amended and filed on June 12, 2017. Both proceedings were then sent to the Eighth Judicial District Alternative Dispute Resolution [ADR] Part to see if matters could be resolved there. When the parties reached an impasse, the matters were returned to this Court on November 27, 2017.
Each accounting was further refined by a filing in May, 2018 in each proceeding.
Objections to the amended accountings were filed by both Jonathan and Jeanne in February, 2018. Although further efforts were made to settle the accounting issues, these also proved fruitless.
Various additional papers have been submitted by the parties, ending in January, 2019, and the issues have been finally submitted.
(A)
THE ESTATE ACCOUNTING
(i)
As reflected by the May 8, 2018 accounting [December 13, 2012 through January 30, 2018], the assets of the estate consisted of the following:
(1) 66 foot Beach Allowance at 13 Chipmunk Lane, Kearney, Ontario, Canada, valued at $20,000 ;
(2) A bank account, valued at $2,162.74 ;
(3) Miscellaneous items in Schedule A, pp. 1 and 2, items 4, 5, 6, 7 and 8, valued at $11,400.89 .
In addition, the accounting shows that $179,860 was transferred into the estate account from the Trust following decedent's death.
Administration expenses of the estate, as of the date of the accounting, totaled $178,578.34. In addition, a claim in the amount of $17,659.81 was allowed.
The item is listed as a "Debt of Decedent. Reimburse Jeff Alles for payment before death."
(ii)
In simplified form, the following represents the objections to the estate accounting filed by each objectant:
(a) Jeanne deKeyserling [objections to the initial accounting, and objections dated February 1, 2018, October 1, 2018 and December 21, 2018]:
(1) objects to the inclusion of the Canadian beach front property as an estate asset, as well as to the value ascribed to it;
(2) objects to the legal fees as "duplicative, not reasonable, not necessary or advisable", "did not benefit the estate, and the total amount of legal fees is excessive in light of the work performed";
(3) objects to the $17,659.81 paid to Jeffrey as an allowed claim;
(4) objects to the failure to include as an unpaid administrative expense "a burial plot ($450.00) and a stone grave marker ($2,780.00) ordered for decedent";
(5) objects to the failure to include as an unpaid administrative expense the "attorney's fees paid to [Jeanne's] attorneys ... as a result of work performed by [Jeanne's] attorneys that inured to the benefit of all beneficiaries."
Jeanne requests that this Court now surcharge Jeffrey "for his actions and/or omissions [as executor], including, but not limited to, denial of commissions (if any), attorneys' fees and repayment of those fees to the Estate."
(b) Jonathan Alles [objections to the initial accounting, and objections dated February 8, 2018, October 9, 2018 and January 2, 2019]:
Jonathan asserts the same objections generally as Jeanne does in Jeanne's objections (1), (2), (3), and (5) [but as to the attorneys fees of Jonathan's attorneys], supra .
Finally, both Jeanne and Jonathan assert that Jeffrey has failed "to timely distribute the assets of the Estate", failed "to provide timely information", and has been "openly hostile to the beneficiaries". And, both Jeanne and Jonathan request that executor commissions be denied and that Jeffrey be surcharged.
(iii)
In an accounting proceeding, the principles of review are well-established:
"In an accounting proceeding, the party submitting the account has the burden of proving that he or she has fully accounted for all the assets of the estate (see, e.g., Vinlis Constr. Co. v. Roreck , 30 AD2d 668, mod 27 NY2d 687 ; see generally , 29 Carmody-Wait 2d, Surrogate's Court & Estate Prac, § 166.181, at 418-420), and this evidentiary burden does not change in the event the account is contested. While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete (cf., Matter of Mann , 41 AD2d 861, lv denied 33 NY2d 517 ; 29 Carmody-Wait 2d, Surrogate's Court & Estate Prac, § 166.181, at 418)" ( Matter of Schnare , 191 AD2d 859, 860 [1993] ; see also Matter of DiGiovanna , 148 AD3d 699, 700 [2017], Matter of Pavlyak , 139 AD3d 1338, 1339 [2016], and Matter of Otto , 2018 NY Misc LEXIS 3652, 2018 NY Slip Op 32083U).
And, to the extent an accounting is left uncontested, " ‘the account stands proved pro confesso except in as far as it may be patently contrary to law’ " ( Matter of Curtis , 16 AD3d 725, 726 [2005], quoting Matter of Thaler , 161 Misc 615, 617 [1937] ; see also Matter of Jewett , 145 AD3d 1114, 1116 [2016] ).
I turn then to each of the objections interposed against Jeffrey's estate accounting. In doing so, I point out that there is an overlap between the estate and the Trust, at least insofar as the expenses and handling of the issues involved in both are concerned, something that is understandable given the need to deal with both at the same time, the commonality of the fiduciary of both, and the Trust directive to use Trust assets to pay all estate expenses (see infra at p. 38).
BURIAL EXPENSES
Decedent was cremated, and his ashes were placed in an urn, all of which was paid for by the estate. What has been in dispute is where decedent's remains—the cremains—should be placed and the costs of that interment and headstone. As Jeffrey's papers put it:
"The Executor wishes to bury the cremains in Hamburg, New York, but has not achieved consensus among the family as to the location of the burial. The Executor agrees that the burial plot and stone markers are proper Estate expenses . The issue of the burial plot and grave marker relate to the location of the burial" (emphasis added).
The disposition of one's remains, when no written instructions have been left by a decedent, is governed by Public Health Law § 4201, which sets forth a statutory hierarchy of individuals who have the right to control the disposition of those remains. In descending order, the statute provides that, absent written instructions, a decedent's surviving spouse will have priority, followed by a surviving domestic partner, any adult surviving children, parents, adult siblings, a guardian, a distributee, or the fiduciary of the deceased person's estate (see , Public Health Law section 4201[2][a][ii]-[viii] ).
At the accounting hearing, Jeffrey testified as follows about this issue:
"A. Well, early on my sister Jeanne — early — not long after Dad died, I had sent a letter out to the family and Jeanne came back and said, I want, you know, Dad to be buried at the little church at the summer cottage . There's a small church there, small graveyard. And she wanted Dad to be interned (sic) there and asked Theresa Drew if it was an expense to the estate and I addressed the family again about this matter and said that this is a family decision; it's not one person's decision on where Mom and Dad would be interned or who would pay for it. So it's more of a family decision and I suggested that, you know, she contacted all family members and get their input on it, which never happened . So the issue kept, you know, coming up and coming up, that she wanted to have my father buried up there and my mother, I assume also, to be buried up there. And the next thing, I received an invoice from Jeanne stating that a plot was bought for some four hundred plus dollars. So in my investigation, found out that it was never really purchased; it was just an invoice showing how much the plot would cost, but it was never really purchased by her or anybody else. She wanted the estate to write the check out for the $400 to the little log cabin log church and I said no. And again, it was a family decision and it's been an issue since then.
Q. I'm going to show you what we've marked — these are Exhibit H and can you just describe what that is?
A. This is a Certificate of Interment. It says that my sister Claire has purchased, out of her own monies, a plot at the little church at Sand Lake.
Q. And to your knowledge, is she asking for any reimbursement for that?
A. She is not asking for any reimbursement. She also wishes to pay for the headstone and is asking for no reimbursements to that, either.
Q. Do you think this is something that appears to be on its way to resolution?
A. Quite honestly, I don't know. Jeanne told Claire, you know, don't pay for it; I'm gonna get the estate to pay for it. So I don't know. I mean—
Q. Let me ask you this.
A. —I'm fine with it. I have no problems with it.
Q. Are you trying to get your family to get some consensus with regard to the burial of both your father — and I guess your mother is also involved?
A. My mother is also involved. My brother Jonathan has her cremains and is reluctant to release them. So my intentions are I have no problem with having my mother and father interned [sic] in a cemetery plot that my sister purchased at Sand Lake as long as they are placed together —
Q. Okay.
A. — at the same time " (emphasis added).
Jeanne has testified that she had no objection to decedent's ashes being buried in the plot Claire has purchased:
"Q. As far as that cemetery plot and stone, you don't have any objection to your sister purchasing that plot, do you?
A. I do not. We all want it done.
Q. All right. And you don't have any objections to her installing the grave marker?
A. I would like to be part of that marker, to see what it said. I don't have objections, but I'd like to be included and I think she —
Q. That's something you could talk to your sister about, right?
A. I hope so."
In Booth v. Huff , 273 AD2d 576, 577 [2000], the Appellate Division, Second Department, was faced with a dispute over what should be done with decedent's cremains where the relevant parties could not agree. In holding that a trial on the merits of that issue was required, the Court pointed out that "a decedent's wishes will be taken into account when a dispute erupts over the ultimate disposition of remains and, in some cases, given effect over the objections of family members."
On the record before me, I have only decedent's Will as any kind of a guide as to the disposition of his cremains. Article I of the Will requires payment from decedent's estate of the expenses of "my ...funeral and burial, including the cost of a marker for my grave " (emphasis added). Nothing in the Will, however, indicates where decedent wished to be buried.
To the extent a consensus exists on the issue of "where" burial should occur, there is no objection as such to burial in Canada at the site testified to already. Jeffrey, however, wishes his father's and his mother's cremains interred at the same place at the same time. Although that may well be understandable, the issue of the cremains of decedent's pre-deceased spouse is not before this Court.
Although it is not stated anywhere that I can find in the record, if Jonathan has his mother's cremains where he resides, those cremains are apparently in Florida.
Therefore, unless the parties consent, on or before May 1, 2019, to the burial of decedent's cremains in Canada as set forth in the testimony, an evidentiary hearing on that issue will be required. In any event, the cost of such burial and a suitable grave marker shall be, as acknowledged by Jeffrey, a charge against the estate (unless it is waived by the party — apparently Claire — who has paid, or intends to pay, for part or all of such expenses).
To ensure that this issue does not linger further, I direct that counsel for each of the parties to this contested proceeding shall notify the Court in writing, on or before May 1, 2019, copying all other counsel, whether agreement has been reached on the burial issue or whether a hearing will be required.
THE CANADIAN BEACH FRONT PROPERTY
Real property located in Ontario, Canada, is at issue in this case. Jeffrey explained the issue concerning "the sixty-six foot beach allowance at 13 Chipmunk Lane, Kearney, Ontario":
"A. The issue is my father bought the cottage property, which is one hundred feet wide by one hundred feet deep, in two thousand — or in 1964. And the Canadian government owned the sixty-six-foot beachfront allowance, which is sixty-six feet back from the high water mark. We're on a lake and the high water mark sets the benchmark for the property and from that high water mark back into the property, sixty-six feet was owned by what they call the Crown or the government of Canada.
Q. And this is a strip of land?
A. It's a strip of land, correct. Now, of course, we had use of that land, but it was owned by the Crown. In 1991 the Crown came along and said, we don't want this anymore so they gave it to the Town of Kearney. The Town of Kearney said, well, we don't want it so we will sell it to the —
MS. LOWE: Objection, Your Honor. Hearsay.
MR. SHIFFLETT: Overruled.
A. So the — I think —
Q. We are at the town.
A. The Town of Kearney told the homeowners or the cottage owners that they could buy the front parcel for a dollar and so my father went and bought the front parcel, which was a separate deed. The deeds were never combined as one. There was two deeds. Now, the Town of Kearney then combined the land as far as for assessment purposes and MPAC, which is the tax collecting department of Canada, looks at it as it being one, but the deed in the deed office in [Parry] Sound looks at it still as two parcels. When my father transferred the cottage in 2005, he did one of the two parcels and left the other one.
Q. He did the cottage parcel ?
A. He did the cottage part of the parcel.
Q. But not the beach allowance parcel?
A. He did not do the beachfront " (emphasis is added).
As to the value of the beach allowance, Jeffrey testified as follows:
"Q. Okay. And on the accounting schedules there's an estimated value of $20,000, is that correct?
A. That is correct.
Q. Okay. And where did this figure come from?
A. I asked the realtor when we were appraising the property up there what he felt the value was.
Q. Okay. Did the realtor prepare a report?
A. Yes, he did.
Q. Okay. And has that report been provided?
A. I believe it has been."
The cottage property adjacent to the beach allowance property was deeded in 2005 by decedent and his wife to Jeanne, Jonathan and Claire. Jeanne's position set out in her October 1, 2018, papers is as follows:
"Said Beach Allowance is adjacent to the Canadian real property transferred to Jeanne L. de Keyserling, Claire F. Nelligan, and Jonathan A. Alles prior to Harry R. Alles' death, and is a non-estate asset improperly listed, as this asset was meant to be transferred to Ms. de Keyserling, Ms. Nelligan, and Mr. Alles at the time of the transfer of the remainder of the Canadian real property. The Executor testified that he, individually and as Executor and Trustee, has not paid any taxes, insurance, or maintenance costs for this Beach Allowance at any time. To the contrary, the Objectant has been paying these items for the Beach Allowance. Nor has the Executor proven that the Beach Allowance has any value. The determination of the ownership of said real property should be made by a Canadian court having jurisdiction over said Beach Allowance " (emphasis added).
In her December 31, 2018 papers, Jeanne also asserts that the basis for executor commissions should not include the beach allowance because "the property is not located in New York State and is not part of the estate proceedings before this Court." Jeanne also says that "[t]he failure to accurately transfer the Beach Allowance along with the Cottage Parcel in 2005 was merely an attorney's oversight that the beneficiaries were unaware of at the time." Jonathan essentially echoes Jeanne's views about the beach allowance property.
Jeanne does not offer any proof for her "oversight" position, and hearing exhibit #20 which she refers to is simply her letter to Jeffrey and Theresa Drew, Esq. in 2013 saying the same thing (again, without proof that what she says was actually so).
I find that the beach allowance property is an asset of decedent's estate, notwithstanding that the property is located in Canada. There is no dispute that decedent never transferred the beach front allowance to Jeanne, Claire and Jonathan when the adjacent cottage property was deeded to them. As an estate asset, it must be disposed of according to decedent's Will, and its inclusion in the estate accounting is entirely proper.
As to the value of the beach front allowance, Jeffrey testified that he consulted a realtor to determine what the property was worth. Neither Jeanne nor Jonathan has provided any proof about the valuation of the property, and, thus, Jeffrey's $20,000 figure stands unopposed.
Finally, with respect to including the property as part of the basis for calculating commissions in the estate accounting, that will be discussed infra .
THE $17,659.81 CLAIM
Jeffrey reimbursed himself the sum of $17,659.81 from the estate, which is now objected to by Jeanne and Jonathan. In the May 17, 2018 verified reply papers submitted on Jeffrey's behalf, it is asserted that this payment was "reimbursement [to Jeffrey] for nursing home charges that were paid" on decedent's behalf using his — Jeffrey's — "personal credit card". The credit card statement attached to the verified reply shows a December 5, 2012 payment in the amount of $17,498.48 to Bertrand Chaffee Hospital in Springville, New York, plus a payment of $161.33 on December 14, 2012 for decedent's obituary in The Buffalo News .
It appears from various submissions that, in the later years of decedent's life, Jeffrey was decedent's power of attorney.
I find that Jeffrey has satisfactorily established his entitlement to reimbursement in the aggregate amount of $17,659.81, and neither Jeanne nor Jonathan have made any evidentiary showing that such reimbursement was not warranted or proper (see, e.g. Matter of Labua , 1997 NYLJ LEXIS 9279, NYLJ, June 20, 1997, at 36, col 4 [PRUDENTI, J.] [once there is "at least a written statement containing the factual basis of the claim and the amount thereof, the burden is upon that person, who disputes the allowance of the claim, to establish that such allowance was the result of a fraud, negligence or collusion", citing, inter alia, Matter of Sprague , 40 App Div 615 (1988) ] ).
THE ESTATE ATTORNEYS' FEES
Again, I note that, because decedent had a revocable trust at the time of his death (see infra ), the estate issues and the trust issues tended, from the record before me, to be handled as one entity. Jeffrey's attorney explained this, in relevant part, as follows in an October 21, 2016 memorandum:
"A question has arisen as to the payment of estate taxes in this matter as the assets of the Estate were minimal, and all the bulk of the assets of Mr. Alles had been transferred previously into the Harry R. Alles Revocable Living Trust dated June 11, 2001 (‘Trust’). The answer is that assets of his Trust were included in his gross estate for estate tax purposes. As Mr. Alles' interest in the Trust was subject at his death to any change, including the exercise by him of a power to alter, amend, revoke or terminate the Trust, the Internal Revenue Code sees through the transfer of the Trust, and considers these assets to be personal assets of the Decedent. Section 2038(a)(1) provides that the value of the gross estate shall include the value of all property:
‘To the extent of any interest therein of which the decedent has any time made a transfer (except in the case of bona fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke or terminate, or where such any power is relinquished during the 3-year period ending on the date of the decedent's death.’
As Mr. Alles, on the date of his death, had the authority to revoke the Trust, the assets in the Trust were subject to estate tax under the Internal Revenue Code, which is why those assets were included in his Estate Tax return."
And, also as a general matter, it should be noted that neither Jonathan's attorney nor Jeanne's attorney disagrees with Jeffrey's explanation on this point.
In this context, the fees for the attorneys who represented Jeffrey in his fiduciary capacity aggregate to $26,635.34 (as of the January 30, 2018 estate accounting). Given the aggregate amount involved in the estate and Trust — two million dollars or more — such fees are entirely reasonable, based upon my review of the testimony and documents at the 2016 evidentiary hearing and the material submitted since that hearing concluded.
An additional $3,917.59 for attorneys' fees, as of November 23, 2016, is shown in the Trust accounting.
It is not necessary to detail all the work that was done by the various attorneys representing Jeffrey in this case. Much of what was done was testified to credibly by Jeffrey at the hearing. An additional consideration is that, starting in January, 2013, shortly after decedent's death, Jeffrey was represented by Theresa Drew, Esq. at the Duke, Holzman, Photiadis & Gresens LLP firm. However, when Drew left the firm in mid-2014, the following occurred:
"A. After Theresa Drew left, I met with — I called Gary Kanaley, who was then going to take over the day-to-day routine, the legal matters for the estate. He asked me to meet him at the accountant's office to file for a formal accounting.
Q. Now, was this basically June of 2014?
A. This is basically June of 2000, correct — or 2014. So I met him at the accountant's office. He explained to me that we were required to do a formal accounting and so he introduced me to the accountant —
Q. And who was that?
A. Richard Szarowicz.
Q. Okay.
A. And I was explained that Mr. Szarowicz does all the accounting for Duke Holzman firm and does a lot for the court system itself and he will do the accounting in the way that the courts prefer to see it, other than my simple accounting of just the assets.
Q. Okay. So in June of 2014 you're starting on the accounting ?
A. Correct. And it was that same — that same moment he said that he had no wishes to continue on as our attorney and then recommended that we find another attorney and recommended Mr. McCann.
Q. Okay. So at that point did you meet Mr. McCann?
A. I did meet Mr. McCann, who introduced himself, presented himself and —
Q. And then you retained him?
A. Not at first. He — you know, he — we had a second meeting where we discussed some matters about monies. You know, I asked him that the fact that he's been referred and he's coming on board, is he gonna charge us all over again to start all over again and he said that he would waive the beginning fees because of this —
Q. Are you talking the transition fees to get him familiar with —
A. Right.
Q. — the file?
A. Well, he had to — you know, they had to bring the files in; he had to get himself kinda up to speed, so he did — and I think there — you see there he had a couple of hours" (emphasis added).
Jeffrey explained further what attorney McCann did:
"Q. When Mr. McCann was your attorney, he billed and was paid a little bit over $9,000, does that sound correct?
A. Yes.
Q. He was retained on June 4th, 2014, is that correct?
A. I suppose so, yes.
Q. At that time was there a petition pending to compel an accounting?
A. I don't know if it was at the time that I — no, I don't believe so. I think I retained him before the petition was — no, no, the petition was — it was right as Theresa Drew left and I met Mr. Kanaley at the — at the accountant's office where he informed me that he didn't want to continue with the case anymore. So I'm assuming that petition was before Mr. McCann was hired, yes.
Q. Okay. Now, did Mr. McCann prepare an accounting or did Miss Drew prepare an accounting?
A. It was all right at the time, you know, Mr. Kanaley — Miss Drew was already gone. Mr. Kanaley finished up by starting the accounting and when the accounting was finished, Mr. McCann was on.
Q. Okay. When the accounting was finished, then Mr. McCann was retained, correct?
A. Mr. McCann was retained while the accounting was being done.
Q. Did Mr. McCann work on the accounting?
A. Did he work on it?
Q. Uh-hum. Make any revisions to it?
A. The accountant worked on it. The accountant did the accounting.
Q. Did Mr. McCann prepare any tax returns on behalf of the estate?
A. No.
Q. Did Mr. McCann assist in collecting or marshaling any assets of the estate?
A. Insist on what?
Q. Collecting any assets in the estate.
A. Why would he collect assets for the estate?
Q. Is that a no?
A. No.
Q. Okay. When Mr. McCann was representing you, a petition was filed requesting a partial distribution of funds, correct?
A. Yes.
Q. Okay. And did you oppose that request for partial distributions?
A. We offered full distribution so, yes.
Q. Okay. When you say offered full distribution, you consider that to be in opposition?
A. We sent out — we had a disbursement schedule. We sent it out to everybody to sign off and got no signatures back from two of the five beneficiaries who, for whatever reason, opposed full distribution and wanted only partial distribution.
Q. Okay. Did you then oppose that request for a partial distribution?
A. No. We — we basically said no, let's distribute. We wanted to distribute where [Jonathan's attorney] said no. She was the one that said no, we want only partial."
With respect to Jeffrey's current attorney, he was formally retained in 2015 with respect "to the objections that are going to be filed against [Jeffrey's] accounting."
Finally, I note that there was much which needed to be done by Jeffrey (and the attorneys involved) because of the property owned by his parents in Canada and transferred by them in 2005 to Jonathan, Jeanne and Claire (except for the beach allowance). One significant issue involved the Canadian taxing authorities:
"Q. So the first bill was through April, so we're talking April through September of 2013. Could you give us some sense of what's going on with regard to the estate administration and the trust administration at this time?
A. Well, we had nine months to give New York State the tax documents so —
Q. File the estate tax return.
A. File with New York State, correct. So we worked on that up until then. We also had some issues with the Canadian property where we had to find out about some land that was presumably sold off. We weren't sure about that so there was some discoveries with that and so some letters had gone back and forth to different attorneys through that.
Q. So at this point they're dealing with that Canadian property?
A. Canadian properties, yes. Also some, you know, it looks like here some issues that were just — that have to deal with the estate. Getting the Canadian taxes paid, getting the New York State taxes paid.
Q. So during this period, that's what — would you say as far as what these attorneys are doing at that time, they're basically dealing with the administration of the trust and estate, dealing with these —
A. Correct, that is correct.
Q. — Canadian issues and tax issues?
* * *
Q. All right. I'll show you what we've marked as Exhibit D and could you describe that for us?
A. That was a bill from the Canadian attorney and the firm Martin, Sheppard, Fraser on April 11th of 2013 for $192.10.
Q. Okay. Now who was — what is this —
A. This is Randy Boyce. He is the Canadian attorney that I talked to about all the legal issues with the Canadian property.
* * *
Q. And could you give us a sense of the Canadian tax issue that was —
A. The Canadian tax issue was my father transferred a house in Canada — or a cottage in Canada in 2005. At that time capital gains taxes were supposed to be paid by my father. He said that it wasn't his responsibility or his wishes to pay them capital gains and that it was supposed to be paid by the owners, the new owners, the children or the beneficiaries of that transfer and told us all that. They were never paid and it came to light in 2010 that it would have been -- or 2012, that's when my father passed — that it was my responsibility to make sure that those were paid so that I personally, as the executor and the trustee of the trust, were not liable for [the] payments once disbursement was made.
Q. And at that point did the Duke Holzman firm and you start dealing with some Canadian attorneys?
A. Yes, we did.
Q. And who were they?
A. That was Randy Boyce and the firm was Martin, Sheppard & Fraser" (emphasis added).
It is worth noting that, from the inception, Jeffrey urged that all the siblings co-operate to keep legal fees down ["I ask that everyone refrain from contacting or mailing the attorney, Theresa [Drew]. The cost of her services is $300.00 per hour and she will only forward those communications on to me for handling...please only mail me questions or communications" (March 12, 2013 letter to "Jeanne, Claire, Mary and Jon" from Jeffrey, part of objectants' exhibit No. 19 at the hearing) ]. However, the litigation track that ultimately ensued kept that from happening.
FAILURE TO INCLUDE JONATHAN'S AND JEANNE'S LEGAL FEES AS AN UNPAID ADMINISTRATION EXPENSE
Jeanne and Jonathan contend that the "work performed by [their] attorneys inured to the benefit of all beneficiaries", and that, for that reason, their attorneys' fees should be an administration expense.
In Matter of Albert , 137 AD3d 1266, 12 [2016], the Appellate Division, Second Department, explained the governing principles when such a request as this is made as follows:
"The Surrogate's Court is authorized ‘to fix and determine the compensation of an attorney for services rendered to a fiduciary or to a devisee, legatee, distributee or any person interested’ ( SCPA 2110 [1] ). Where legal services have been rendered for the benefit of an estate as a whole, resulting in the enlargement of all the shares of all the estate beneficiaries, reasonable compensation should be granted from the funds of the estate (see Matter of Wallace , 68 AD3d 679, 680, 893 NYS2d 15 [2009] ; Matter of Scarsella , 195 AD2d 513, 516, 600 NYS2d 256 [1993] ; Matter of Burns , 126 AD2d 809, 812, 510 NYS2d 732 [1987] ). However, the services rendered must be substantial, directed toward a bona fide issue, and may not be merely nominal in overcoming an obvious erroneous claim by the fiduciary (see Matter of Scarsella , 195 AD2d at 516 ; Matter of Bellinger , 55 AD2d 448, 451, 390 NYS2d 739 [1977] )" (emphasis added).
Our Appellate Division explained the benefit concept, and when a benefit may warrant fees paid from the estate assets, in Matter of Bellinger , 55 AD2d 448, 451-452 [1977], this way:
"The test of benefit is whether the distributees of the estate, in their capacities as such, have become entitled to receive greater sums from the assets of the estate during administration than those that might have been expected without the applicant's efforts (see Matter of Hirsch , supra ). Clearly, they will in this case. The question is whether respondents can claim credit for that benefit.
The theory which justifies payment by the estate to the attorney of a beneficiary is that the attorney has represented the fiduciary who has defaulted in protecting or collecting the assets of the estate and, therefore, what would have been a proper charge for legal fees if the executor had acted, is a proper charge when the executor fails to act because of an adverse interest, disinclination or neglect. It is the necessity of the situation which justifies the payment to the attorney of one party by all the others interested in the estate. The mere fact that an outside attorney, while preserving the interests of his own client, suggests a course of action which produces a saving to the estate ( Matter of Kaufman , 169 Misc 714, affd 256 App Div 1070 ; Matter of Wicks , 269 App Div 675 ), or forces the executor into action ( Matter of Trescott , 199 Misc 1087 ), or acts in conjunction with the executor's attorney but without retainer ( Matter of Wadsworth , 250 App Div 11, affd 275 NY 590 ) is not sufficient . Volunteers may not be compensated from the general assets of the estate" (emphasis added).
Jonathan and Jeanne urge that their actions benefitted the estate and Trust as a whole and all beneficiaries because their actions compelled Jeffrey to file an accounting and to make distributions of assets. Although it is true that Jonathan filed a petition to compel an accounting, and a petition to compel a distribution of assets, those actions distort the whole picture of what was taking place.
In early summer, according to the testimony, 2014, Jeffrey had an accounting and proposal to distribute all assets, which his attorney sent to all beneficiaries. A receipt and release were also sent, and the cover letter listed various items still to be done to close everything out. At least Jonathan, and apparently also Jeanne, declined to sign the releases after which Jonathan brought his petition to compel a partial distribution of assets (which this Court then directed).
Given the issues that still needed to be resolved when the petition to compel an accounting was filed in March, 2014 — namely, resolution of the beach front allowance, payment of moneys to Revenue Canada, resolution of where decedent's cremains would be buried, and a claim of Jonathan's for certain real property taxes in Florida, among other items — it was not improper or unreasonable for Jeffrey not to have filed an accounting at that point. And, as to not having distributed any assets by that point, Jeffrey was following the legal directions given to him by his attorney(s) in that regard (see infra , at pp. 33-34).
I find nothing in this accounting proceeding which establishes that Jonathan and Jeanne took actions which, in their words, "inured to the benefit of all beneficiaries" within the meaning of Matter of Albert and Matter of Bellinger . Indeed, neither Jeanne nor Jonathan elaborate on what, in their view, such compensable benefit to all beneficiaries consisted of in this case.
Moreover, even if I were to find that such a benefit did exist, the amount of attorney fees being requested would still be an issue. Here, the record shows attorney invoices for Jonathan amounting to $40,469 [exhibit No. 25, from January 28, 2013 through December 31, 2015], and for Jeanne amounting to $25,770 [exhibit #27, from October 24, 2014 through January 29, 2016], aggregating to $66,239 in attorneys fees for both objectants through January, 2016. That aggregate billing exceeds Jeffreys' attorney fee billings by over $30,000. And, the legal submissions by Jeffrey in May, 2018 state that "Objectants' attorneys are requesting in excess of $140,000.00 for their claimed services to the Trust and Estate."
I can find no measurement by which any of the fees being requested by Jeanne and Jonathan to be paid by the estate would be reasonable, within the standards of Albert and Bellinger, supra , and measured by the criteria set out in Matter of Potts , 213 App Div 59 [1925], aff'd 241 NY 593 [1925], and Matter of Freeman , 40 AD2d 397 [1973], aff'd 34 NY2d 1 [1974].
ESTATE COMMISSIONS
I find that the estate fiduciary commissions, as calculated by the December 17, 2018 submission by Jeffrey, are correct. Given the work involved by Jeffrey regarding the Canadian beach front allowance, I find that the $20,000 valuation ascribed to it is includable in the estate asset basis used to determine the $1,421.20 in estate commissions. Jeffrey has been, and will continue to be until the issue is resolved, responsible for dealing with what will ultimately happen to the beach front allowance property, which all parties seem to agree will require litigation in Canada. See, e.g. Matter of Tucker , 75 Misc 2d 318 [1993].
Further, and for the reasons stated infra , I find no basis in this record, nor have Jonathan and Jeanne demonstrated one, for denying estate commissions to Jeffrey.
THE SURCHARGE OBJECTION
Jeanne and Jonathan have indicated, in a broadly-based objection, that Jeffrey should be "surcharged for his actions and/or omissions" as executor of this estate. Some of the items listed by them as warranting a surcharge involve the need "to amend [the accounting]" in 2017, Jeffrey's alleged failure to timely distribute assets of the Trust/Estate", Jeffrey's failure "to provide timely information", and Jeffrey's "being outwardly hostile to the beneficiaries."
First , it is correct that in 2017, this Court directed the filing of an amended accounting. However, each accounting in this matter has been prepared by an accountant with an attorney overlooking the process. It is acknowledged that the Trust and estate accountings were combined into one accounting initially, for reasons that undoubtedly made technical sense to an accountant and to the attorney representing Jeffrey (see supra , at pp. 4 and 18-19). That that accounting created difficulties in reviewing it is not a basis for a surcharge because Jeffrey relied on advice of professionals in submitting it.
Second , as to the distribution of assets, Jeffrey testified credibly on February 25, 2016, as follows:
"Q. And [did attorney McCann] provid[e] guidance to you with regard to what the rules are with regard to this —
A. Yes, he did.
Q. — in this area?
A. Theresa Drew from Duke Holzman also provided me with some guidance.
Q. Oh, during this time?
A. Not at this time. This was earlier.
Q. Okay.
A. As far as the disbursement of any assets, I was told that, you know, things could not be disbursed until New York State was satisfied, Canada was satisfied and the courts okayed it " (emphasis added).
Jeffrey also testified, on April 25, 2016, about making distributions:
"Q. Okay. So you've taken no steps to liquidate any stocks to make distributions ?
A. Not up till today, no.
Q. Okay. Do you have any plans to do that today?
A. Yes.
Q. On the advice of counsel ?
A. Yes.
Q. Okay. You also mentioned a Court decision?
A. I — I was told in the beginning of all of this that the Court had to tell me when to distribute and when not to.
Q. Okay. And who told you that ?
A. Theresa Drew, way back.
Q. And you believed that was true up until today ?
A. I wasn't sure. I don't do this for a living.
Q. Okay. So when I demanded a distribution in March of 2016, was there an order in place requiring you to make a distribution?
A. No. I know better now.
Q. Okay. So at what point did you understand you did not need a Court order to distribute ?
A. When my attorney told me I could distribute.
Q. And was that in 2014, '15, '16 ?
A. It was in 2016 when this demand letter came out " (emphasis added).
I find that Jeffrey relied on the advice of counsel as to whether, and when, distributions of assets could be made, and I conclude that there is no basis to fault Jeffrey in this regard.
Third , the argument has been made that a surcharge is warranted because Jeffrey failed "to provide timely information". With respect to the estate, I find this contention to be without any merit. Jeffrey's testimony and objectants' exhibit #19, make clear that he responded to many inquiries from one or more of his siblings, but that, at a certain point, he indicated to them that such inquiries should be made by mail. I find nothing at all amiss about this. Morever, in context, Jonathan and Jeanne have provided no legal authority as a basis for surcharge for what they claim is Jeffrey's failing in this regard, and, as framed , my research has disclosed none. This is not surprising inasmuch as SCPA 2102 (1) provided a remedy to Jonathan and Jeanne which they never availed themselves of:
"A proceeding may be commenced to require a fiduciary:
(1) To supply information concerning the assets or affairs of an estate relevant to the interests of the petitioner when the fiduciary has failed after request made upon him in writing therefor."
Finally , there is a claim that Jeffrey was "outwardly hostile to the beneficiaries" of the estate.
"Hostility" generally means "a state of enmity between individuals," "a deep-seated usually mutual ill will."
No such claim of "hostility" has been made by Claire or Mary, so the issue revolves solely around Jonathan and Jeanne. As to them, it is impossible to determine who may have been hostile first to whom, if such hostility even exists. The impression on the record before me is, whether correct or not, that both Jeanne and Jonathan have been oppositional to Jeffrey on one or more issues throughout. As to when, where or why such friction arose, the record is silent; and there was no proof presented on this issue by either Jonathan or Jeanne which would allow the conclusion of "hostility" by Jeffrey towards one or both of them to be drawn. Disagreements as such, about, for example, a correct course of action, are not at all the same thing as "hostility."
The writings in objectants' exhibits #19 and #20 make clear that Jeffrey attempted to proceed in regard to the estate and the Trust in a completely reasonable, co-operative manner. Once Jonathan retained counsel in early-2013 during the probate proceedings, Jeffrey properly declined to communicate directly with him. Moreover, Jeanne's writings in exhibit #20 show that she disagreed with various positions being taken, or followed, by Jeffrey, also setting up an adversarial relationship.
All of this demonstrates that, while there were disagreements among some of the parties, there is no view of the record that this was the one-sided action of Jeffrey's, or, significantly, that it was initiated in any sense by Jeffrey.
Thus, I find nothing in this aspect of the claim that rises to the level of surcharge.
Whether a surcharge should be imposed rests upon what a Court finds was done improperly or wrongfully, or not done:
"Depending on the conduct complained of, an appropriate remedy available to the court may be to surcharge the fiduciary. A surcharge, which is in the nature of damages, is an amount of money that is personally charged to the fiduciary.
To be subjected to a surcharge, the fiduciary must be shown to have acted negligently or to have failed to exercise prudence in the management of the estate assets, resulting in a loss. To prevail on a surcharge, the burden is on the objectant to show that a fiduciary acted negligently or failed to act prudently with regard to handling of an estate.
In determining whether the acts of a fiduciary were prudent, the court looks at the facts as they existed at the time of the occurrence, not aided or enlightened by those that subsequently take place.
* * *
For an objection to warrant a surcharge, the objectant must be able to show wrongdoing by the fiduciary rather than just damage to an individual asset. It is not sufficient merely to establish that a loss was incurred — the objectant must prove that the loss resulted from the fiduciary's negligence or wrongful conduct " (2 Harris New York Estates: Probate Administration and Litigation [6th ed], §§ 28:161 and 28:162, at 786-787, emphasis added).
I find that none of the conduct complained of by Jonathan and Jeanne, or even all such conduct considered in the aggregate, virtually all of which was (and remains) unobjectionable, is a basis for surcharging Jeffrey. Accordingly, I conclude that such claim is without merit and must be dismissed.
(B)
THE TRUST ACCOUNTING
The Trust was set up by decedent on June 11, 2001 in Florida, and by its terms is to "be construed and regulated in all respects by the law of the State of Florida." The initial trustees were decedent and his wife Pamela, but, by amendment to the Trust executed on June 3, 2010, following Pamela's death earlier that year, decedent appointed himself and Jeffrey "as Co-Trustees of this Trust. Either Co-Trustee shall be able to act independently of the other...[and, if either Co-Trustee is] unable or unwilling to act as a Co-Trustee the other is designated as sole Trustee."
The Trust provided that the trustee(s) "shall be entitled to reasonable fees and commissions" for services as trustee(s). And the Trust also provided that, upon the death of the grantor:
"Payment Of Liabilities Of The Grantor's Estate.
The trustee may, in its sole and absolute discretion, pay to the estate of the grantor from its principal of the trust fund, prior to its division under this Article, such amounts as may be needed to pay all or any part of the grantor's debts, funeral expenses, and administration expenses of the grantor's estate. The trustee shall pay to grantor's estate or the appropriate tax authorities all estate and inheritance taxes that may become payable by reason of the grantor's death in respect of all property comprising the grantor's gross estate for death tax purposes, (except for purposes of the federal generation-skipping tax), whether or not such property passes under this agreement, under the grantor's will or otherwise."
At issue at this point is the Trust accounting certified by Jeffrey on May 8, 2018. Jeffrey testified in 2016 that the Trust accounting was regularly updated and revised because of changes to assets in the Trust over the period involved.
As with the estate, prior accountings were submitted and were the subject of the hearing on the objections of Jeanne and Jonathan in 2016. And also as with the estate, the prior accountings and objections have been incorporated and blended into what is presently before this Court.
Jeanne and Jonathan have each filed objections to the Trust accounting(s), and, insofar as relevant now, those objections are:
(1) Schedule C shows an amount of $72,934.53 in transfers out of a bank account which are not explained;
(2) Trust attorney's fees of $3,917.59 "are unreasonable and/or unsupported";
(3) Fees for a Canadian attorney, in the amount of $2,205.55, reimbursed to Mary are unwarranted;
(4) Failure to include all attorneys' fees for Jeanne and Jonathan as an expense of the Trust;
(5) Trustee commissions, if allowed, are not "reasonable" as calculated;
(6) Jeffrey should be surcharged.
With respect to the $72,934.55 in transfers out of the referenced bank account, Jeffrey has explained that all payments involved were to reimburse him for his payments to his father's nursing home. I find that there is documentary proof for all but $193.55 of that amount. $9,497.57 was reimbursed to Jeffrey on May 14, 2012, but I can find only an April 5, 2012 credit card payment from Jeffrey to the nursing home for $9,304.02 which would underpin the May 14, 2012 reimbursement. Although there are other unexplained items on the April 4, 2012 to May 3, 2012 credit card statement, which may represent the discrepancy amount, I cannot tell from what is before me whether that $193.55 is an allowable amount properly chargeable to the Trust. Jeffrey must explain this $193.55 difference and, in his final Trust accounting, make any necessary adjustment (see, e.g., Margaret Turano and C. Raymond Radigan, New York Estate Administration, § 15.05, at p. 569 [2019 ed] ["If the fiduciary made a simple mistake, the courts require the fiduciary to reimburse the estate for the loss"] ).
Turning next to the attorney fees for the Trust, including the reimbursement to Mary for the legal work Jeffrey requested that she arrange to have done by the Canadian attorney , I find these eminently fair and reasonable under all the circumstances. With respect to the $2,205.55 payment to Mary, on April 10, 2012, Jeffrey testified as follows:
This item is listed on Schedule D, item 19, at pp. 4-5 ["Debt of Settlor; Reimbursement to Mary for Sand Lake"].
"Q. Okay. And Mary's attorney's fees were paid from the trust, is that correct?
A. No, Mary's attorney — never had an attorney.
Q. Okay. Mary didn't retain an attorney in Canada?
A. No. Mary — Mary simply paid for an attorney on my direction to get some information during the discovery. Should I have given the attorney the check myself? How I paid for the attorney that I directed to do work for the estate was my decision. How it was paid for was my decision. She paid for it; I reimbursed her. I asked her to do it. She paid for it; I reimbursed her.
Q. Okay."
Here again there is an understandable blurring between the Trust and the estate, and expenses incurred and paid out.
Jeffrey explained in some detail what the payment to Mary, while decedent was still alive and while he and Jeffrey were co-trustees, concerned:
"A. It was a bill by the Miller Law Group which is in Huntsville, Ontario. It was January 31st of 2012.
Q. And what kind of work did they do?
A. Well, again, like stated earlier, there was a—my father told me of a selling of a piece of—part of his property to a neighbor in—at the cottage in Ontario.
Q. This is different than the beach allowance?
A. This is different than the beach allowance.
Q. Okay.
A. This is a whole separate issue. And my father told me that the property, our neighboring property at that cottage, was trying to sell their cottage. And there was some issues with clouding of land back when it was originally deeded back in the thirties, 1930's. Nothing was ever surveyed back then, so by description the lands overlapped each other and there was some clouding to that. I knew it. I'd known it for years. When other properties had tried to sell up there, it raised an issue. We all knew that there was clouding issues with adjacent properties. So this neighbor was selling their property. The issue came up and had to be cleared up. So my father told me that my brother Jonathan had sold this sliver of land to Jennifer Evans in order to clear up their property and then he pocketed the money. And so I said, well, if he sold it, then there's capital gains due on it. So I had to investigate that. So we contacted the Miller Firm. My sister, I asked my sister, because she had dealt with this firm before, if she would contact them and discuss this matter. She did. She paid the retainer. They asked for a retainer up front. She paid for it and then once we got our findings, she was reimbursed. Come to find out the property was never sold. They were deeded the property before my father was deeded the property, before the property was deeded to the original owners and they owned it, so the neighbor owned it.
Q. Did you think this was important, to reimburse your sister with regard to the trust? Was this something that would impact the assets of the trust?
A. It was part of the discovery of what needed to be done in the trust, yes. I needed to know that taxes were paid on any properties in Canada and, yes, and I told her I would reimburse her for that."
With regard to the attorneys' fees for Jonathan and Jeanne, I have already explained why I find no basis to include such fees as expenses of the estate, and the same explanation and rationale applies when considering the Trust accounting.
As to the commissions sought by Jeffrey, the calculation of those has been set forth in a detailed schedule verified December 17, 2018. As set out there, the commissions total $82,159.01 [$58,449.19 (annual, 2011-2018) plus $23,709.82 (disbursing) ]. Given the size of the Trust, and having considered the factors set forth in West Coast Hosp. Assn. v. Florida Nat'l Bank , 100 So. 2d 807 [1958], I find such commissions entirely reasonable, and approve the same.
One of the West Coast Hospital criteria is "the custom in the community as to allowances to trustees by settlors or courts". Here, although the Trust was executed in Florida, it operated insofar as Jeffrey's involvement after 2010 in New York. Thus, I see nothing inappropriate in fixing commissions to him in utilizing the approach set out in the December, 2018 commission calculation submission — that is, the percentage calculations — because that is "the custom in [this] community".
Finally, and again for the reasons set forth in dealing with the estate accounting, I find no basis to surcharge Jeffrey under the Trust accounting.
(C)
Accordingly, and for the reasons stated, and except for the $193.55 issue set out supra , at p. 39, I hereby dismiss all objections to the estate and to the Trust accounting, and I hereby approve each.
Finally, I hereby direct counsel for all parties to appear before me on Wednesday, April 24, 2019, at 9:30 a.m. , to schedule such other matters as may be required to bring both the estate and the Trust to conclusion.
This decision shall constitute the Order of this Court and no other or further order shall be required.