Opinion
October 10, 1960
Martin Lewis for accountant.
Joseph Levine for Ernest Perotti, objectant.
David G. McCullough for Frank Perotti and another.
Objections were filed by Ernest Perotti to the account of Henry D. Perotti as executor and trustee of the estate of John Perotti, deceased. Arguments of respective counsel were heard by the court, and after perusing the account and the objections filed, and after due deliberation thereon the court decides and finds as follows:
The account covers the management of a 381-acre farm of decedent in the Town of North East, Dutchess County, New York. Questions were raised as to whether certain assets should be listed as part of the estate of the decedent, John Perotti, or in the estate of his late wife, Adela Perotti, and questions were also raised as to whether certain expenditures should be charged to the estate of Mr. or Mrs. Perotti.
Under John Perotti's will, he gave his wife, Adela, a life use of his property with remainder at her death to go to his five sons equally, except for certain specific bequests to his daughters. Under Adela's estate, she having died intestate, distribution would be made equally between all nine children of said decedents. The objectant would receive one fifth under his father's will and only one ninth under his mother's estate.
On June 24, 1960, eight children of the decedent entered into an agreement as follows: "The undersigned hereby agree and consent that in order to avoid the expense of an accountant, that all the assets now in the estate of John Perotti be considered solely the assets of said decedent and that the widow of said decedent who was a life-tenant (Adela Perotti) and who is now deceased, be considered to have died without any assets." The present objectant, Ernest Perotti, did not join in this agreement.
In view of the complications involved in the mixing of the assets of these two estates and because of resultant accounting difficulties the most equitable distribution for the objectant would be to have everything distributed under his father's estate.
It is the opinion of the court that under such a distribution the account should be settled as filed and that all of the assets now being accounted for should be considered solely as the assets of the decedent, John Perotti, and distributed accordingly.