Opinion
October 8, 1985
Carter, Ledyard Milburn (Thomas N. Gerber of counsel), for petitioner.
In this accounting proceeding two cotrustees and executors of the estate of a deceased trustee seek an order dispensing with service of citation on one of the beneficiaries of the trust.
The trustees have filed an intermediate account for the residuary trust created under article NINE of the decedent's will. The beneficiaries of the trust are the testator's surviving spouse and the testator's descendants. The trustees seek to dispense with service upon John Love, an adult grandchild of the testator.
The trustees' petition states that by an indenture dated July 28, 1972, John Love assigned his interest in certain property, not including the property which is the subject of this proceeding, to Felicite Pratt Morgan and the United States Trust Company as cotrustees of a separate trust. It is further alleged that by an assignment dated August 20, 1974, Mr. Love transferred to the trustees of the same inter vivos trust his interest in the principal of the testamentary trust and directed that the income be delivered to the trustees of the inter vivos trust.
If Mr. Love assigned all of his interest in the testamentary trust, he lacks standing to object to the trustees' account (Matter of Pluym, 195 App. Div. 565; Matter of Bihn, 171 Misc. 80). Nevertheless, he must be cited in this proceeding (SCPA 2210; Matter of Daly, 72 Misc.2d 195; Matter of Wood, 38 Misc. 64; Matter of Joslin, 74 Misc. 332; Tilden v Dows, 2 Dem 489; 4A Warren's Heaton, Surrogates' Courts § 377, ¶ [1][g] [6th ed]; 3 Harris, New York Estates Practice Guide § 31:61 [4th ed]).
The purpose of this requirement is to permit the beneficiary to dispute the existence of the assignment, its validity or effect. Although the purported assignment specifically provides for representation of the beneficiary by the trustees in an accounting proceeding, its validity may be attacked.
The petitioners argue that process need not issue to Mr. Love because that is the "law of the case". Their argument rests on the fact that process did not issue to Mr. Love in the executors' accounting. In that proceeding, it was necessary to cite the beneficiaries of the trust because the executors were also trustees and would be accounting to themselves (SCPA 2210).
The executors failed to list Mr. Love as a beneficiary who had to be cited. The failure to require that a citation issue to Mr. Love was a clerical oversight.
The doctrine of the "law of the case" applies only where there has been a final judicial determination of a particular controversy (Globe Indem. Co. v Franklin Paving Co., 77 A.D.2d 581). It applies to various stages of the same litigation but not to different litigations (Matter of McGrath v Gold, 36 N.Y.2d 406) and it does not bind persons who were not parties to the proceeding (Matter of Ahrens, 193 Misc. 844, mod on other grounds 275 App. Div. 588, affd 301 N.Y. 701).
Mr. Love was not a party to the executors' accounting. The executors' accounting proceeding was separate and distinct from this proceeding and the question of service of process upon Mr. Love was not specifically addressed by the court.
Most importantly, the doctrine of "law of the case" does not apply to the fundamental question of jurisdiction (Bricklayers Allied Craftsmen v Corbetta Constr. Co., 511 F. Supp. 1386).
Accordingly, citation must issue to John Love.