Opinion
April 12, 1993
Appeal from the Surrogate's Court, Westchester County (Brewster, S.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The testator's will included the following provision:
"TENTH: For its services for acting in any fiduciary capacity under this will, said Fiduciary Trust Company International shall receive the compensation stipulated in its regularly adopted schedule in effect and applicable at the time such compensation shall become payable, including any stipulated minimum compensation. I acknowledge that I am aware the foregoing compensation may be in excess of that provided under applicable law, and expressly authorize payment of any excess thereof".
The potential existed for Fiduciary Trust Company International, the executor herein, to alter its fee schedule between the time of the testator's death and the time the fees became payable, thereby unilaterally increasing the bequest. "It is unquestionably the law of this state that an unattested paper which is of a testamentary nature cannot be taken as part of a will even though referred to by that instrument" (Booth v Baptist Church, 126 N.Y. 215, 247-248). The fee schedule fits into none of the exceptions to the rule established by statute or case law (see, EPTL 3-3.7, 3-4.4 Est. Powers Trusts, 3-5.1 Est. Powers Trusts, 8-1.1 Est. Powers Trusts; Matter of Rausch, 258 N.Y. 327; Matter of Fowles, 222 N.Y. 222; Matter of Murphy, 70 Misc.2d 516). Therefore, the will provision was unenforceable, and the court was correct in limiting the executor's commissions to those established by statute (see, SCPA 2307). Thompson, J.P., Rosenblatt, Pizzuto and Santucci, JJ., concur.