Opinion
December 16, 1959
Humes, Smith Andrews for petitioner.
Moore Swartz, respondents in person.
Upon the submission of this special proceeding to settle the final account of the trustee of this inter vivos trust (Civ. Prac. Act, art. 79), decision was withheld pending justification of the item in the account showing premature payment, without judicial approval, of $3,750 for legal services and $23.78 disbursements incidental to this proceeding ( Matter of Bucherer, N.Y.L.J., March 12, 1959, p. 12, col. 3). An acceptable showing is now made by affidavit of legal services with proof of service on all interested parties. No objection has been interposed and, accordingly, the account is settled and allowed.
The problem posed by the petition regarding a creditor's claim for $1,592.40 legal services, unrelated to this trust, is supported by the answer and affidavits of the claimant. The contention is that this trust for the benefit of and under the exclusive control of the settlor is void as to past or future creditors, including the claimants (Personal Property Law, § 34).
There is no scope under the authority of article 79 of the Civil Practice Act for resolution of issues involving claims of creditors and certainly no authority to construe the destruction of the trust. The claim is rejected without prejudice to resort to a plenary action or as the claimants may otherwise be advised (Civ. Prac. Act, § 1308; Ninth Annual Report of N.Y. Judicial Council, 1943, pp. 308-310; Matter of O'Shea [ Reilly], 21 Misc.2d 597; Matter of Roberts, 18 Misc.2d 599; Matter of Reilly, 17 Misc.2d 1077, affd. 3 A.D.2d 1001; Matter of Burton, 132 N.Y.S.2d 563, 564; Matter of Norwood, 92 N.Y.S.2d 185, 186). The summary proceeding relating to express trusts made by living persons or by last will and testament was intended to dispense with the cumbersome details of a plenary action in regard to settlement of accounts and construction of the trust. Claims of creditors unrelated to the trust or destruction of the trust, as such, are beyond the authorized jurisdiction of the special proceeding (cf. Matter of Fields, 193 Misc. 781, 782, affd. 280 App. Div. 811). Settle order.