Summary
In Matter of Cherkoff (9 A.D.2d 557), also urged by respondents, the beneficiaries under a will had agreed prior to probate on a specified distribution of the estate and had stipulated by a duly executed instrument that the will should not be probated.
Summary of this case from Matter of FiscusOpinion
August 13, 1959
Present — Bergan, J.P., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal from an order of the Surrogate's Court, Sullivan County. All of the distributees, legatees, and persons beneficially interested in the estate of the testator have agreed upon a distribution of his property and have stipulated by an instrument executed in due form that his will "shall not be offered for probate and shall not be admitted to probate". One of the two executors named in the will, however, has offered the will for probate and the Surrogate has directed its probate against the objection of all of the persons beneficially interested. In the order of probate the Surrogate followed the literal direction of the statute (Surrogate's Ct. Act, § 144. subd. 2) that if it appears a will was duly executed by a competent testator it must be admitted to probate. With the literal terms of the statute thus satisfied, however, we see no further duty devolving on the executor to qualify or to act in the estate; nor do we see why any of the property of the estate should be taken or handled by him or why any fees or commissions should be incurred. His only possible function is to preserve the estate and distribute it as preserved to the persons entitled to it. They have done that for themselves and further intervention by the named executor is not justifiable. The only logical ground urged by the executor for the probate of the will other than the naked command of the statute that it be probated is that the mere agreement of the beneficiaries might not protect him from exposure to tax liability. If, by proof of payment of all taxes, the beneficiaries satisfy the Surrogate that there is no longer risk of personal liability of the executor, a solution of this question would follow. We would expect that counsel fees in obtaining probate and in assuring the executor personal protection against tax liability would be minimal in view of the absence of any need shown for administration by him. Order directing probate unanimously affirmed, without costs.