Opinion
November 30, 1998
Surrogate's Court, Dutchess County (Bernhard, S.).
Ordered that the order is affirmed, with costs payable by the appellant personally to the respondent Gertrude E. MacLeod.
This appeal concerns an intrafamily dispute over the estate of the decedent Martha Ehmer (hereinafter the decedent). The appellant Inge E. Gabler is one of three beneficiaries of the estate and the decedent's daughter. The other two beneficiaries are the respondents Nancy Slavinsky Schneider, the executor of the estate of Karl Ehmer, the decedent's husband, and Gertrude E. MacLeod, the decedent's other daughter. Due to various disputed transactions prior to the decedent's death, Gabler sought to be and was appointed temporary administratrix of the estate. When Gabler filed her accounting as temporary administratrix, the respondents objected to, inter alia, the disbursement of $22,231 in legal fees in furtherance of an action against, among others, Karl Ehmer. The action was commenced, inter alia, to obtain the return of assets received by Karl Ehmer which Were alleged to be properly part of Martha's estate. In the order appealed from, the Surrogate, upon granting renewal, adhered to a prior determination which disallowed the disbursement of legal fees as premature and surcharged the appellant in the same amount. We now affirm. The appellant, in her capacity as temporary administratrix, possessed the authority to commence legal actions to benefit the estate, including commencing actions to recover estate assets ( see, SCPA 903, 905 Surr. Ct. Proc. Act; Matter of Stanley, 240 A.D.2d 268; Spatz v. Bajramoski, 214 A.D.2d 436; Matter of Hoffman, 136 App. Div. 516; Matter of Title Guar. Trust Co., 114 App. Div. 778, affd 188 N.Y. 542). However, she was bound to exercise good faith and reasonable care and prudence ( see, Matter of Stanley, supra; Matter of Hoffman, supra; Matter of Title Guar. Trust Co., supra). Here, given the early stage of the litigation against Karl Ehmer, and the concomitant lack of evidence in the record concerning this litigation and the expenses incurred thereon, we agree with the Surrogate that a determination as to whether the subject disbursement should be allowed is premature. Thus, the Surrogate did not err in disallowing the disbursement at this time.
Ritter, J. P., Thompson, Santucci and Joy, JJ., concur.