Opinion
February 2, 1990
Appeal from the Livingston County Surrogate's Court, Smith, S.
Present — Dillon, P.J., Denman, Green, Balio and Lawton, JJ.
Order unanimously reversed on the law with costs and motion denied. Memorandum: Objector Alice Wadsworth Strong asserts that the Surrogate's Court erred in striking her objections First (A) through (D) to the 1978 intermediate accounting of Key Bank of Central New York, as trustee of a trust created by the will of James W. Wadsworth. We agree. Those objections arise from the 1970 exchange of parcels owned by the trust with parcels owned by the cotrustee, James J. Wadsworth, individually. In the prior appeal of Matter of Wadsworth [Key Bank — Strong] ( 139 A.D.2d 936, lv dismissed 72 N.Y.2d 909), we affirmed the Surrogate's determination that Ms. Strong should have been given notice of that accounting, reopened nunc pro tunc the prior decree, and granted Ms. Strong permission to file objections. In 1978 Ms. Strong had an interest in the properties held in trust as both a remainderman and taker in default. At that time, her interest in the properties held in trust had not been divested by James J. Wadsworth's exercise of his limited testamentary power by appointing those properties to his spouse, Mary Alphin Wadsworth (cf., Matter of Wadsworth [Security Norstar Bank — Strong], 139 A.D.2d 936, lv dismissed 72 N.Y.2d 952). Since Ms. Strong was both a remainderman and taker in default subject to defeasance, she had standing to object on behalf of the trust to the alleged breach of fiduciary duty by the trustee in permitting the 1970 exchange of properties (see, Riviera Congress Assocs. v Yassky, 18 N.Y.2d 540, 547; Matter of Brandt, 81 A.D.2d 268, 275).