Opinion
July 13, 1984
Appeal from the Onondaga County Surrogate's Court, Reagan, S.
Present — Dillon, P.J., Hancock, Jr., Callahan, Denman and Moule, JJ. [ 119 Misc.2d 256.]
Case held, decision reserved and matter remitted to Onondaga County Surrogate's Court for further proceedings, in accordance with the following memorandum: In this will construction proceeding, the executor appeals from a Surrogate's decree determining the distribution of assets under the wills of two decedents, husband and wife who, with their children, died in a common disaster.
¶ The record on appeal contains an agreement, dated November 24, 1982, between the distributees of the husband and the sole distributee of the wife, which purports to settle the dispute and divide the assets of these estates. Respondent's answer alleges that, in consideration of the settlement agreement, the executor already had paid to petitioner as partial distribution the sum of $215,000. Relying upon the agreement, the answer sought denial of the petition for construction of the wills.
¶ In his decision, the Surrogate specifically declined to pass upon the validity of the agreement but decreed "that the executor be enjoined from distributing any funds without prior court approval until the validity of an agreement dated November 24, 1982 is determined by the Court."
¶ In our view, it was inappropriate for the Surrogate to construe the wills without first determining the validity and effect of the settlement agreement. The matter is remitted to the Surrogate for further proceedings and for determination of those issues.