Opinion
June 20, 1994
Appeal from the Surrogate's Court, Suffolk County (Signorelli, S.).
Ordered that the appeal from the decree dated May 7, 1992, is dismissed, as that order was superseded by the order dated August 27, 1992, made upon renewal and reargument; and it is further,
Ordered that the order dated August 27, 1992, is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs payable by the appellant personally.
The Surrogate properly removed the appellant as preliminary coexecutor and disqualified him from acting as a permanent fiduciary of the estate. Although it is well settled that a testator's selection of a fiduciary must be given great deference (see, Matter of Flood, 236 N.Y. 408; Matter of Shaw, 186 A.D.2d 809; Matter of Marsh, 179 A.D.2d 578), a fiduciary may be removed upon a showing of improvident management of assets, misconduct in the execution of duties or unfitness for office ( see, SCPA 711, 719; Matter of Farber, 98 A.D.2d 720). Contrary to the appellant's contention, the record supports the Surrogate's finding that he intentionally delayed in offering the decedent's codicil for probate because the codicil bequeathed the decedent's interest in the appellant's residence to the appellant's children rather than to the appellant. It is elemental that a fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect (see, Birnbaum v Birnbaum, 73 N.Y.2d 461, 466; Meinhard v. Salmon, 249 N.Y. 458, 463-464), and here the appellant breached that duty by failing to file the codicil in the hope that he could obtain his coexecutor's consent to abrogate the codicil.
We have examined the appellant's remaining contentions, and find that they are without merit. O'Brien, J.P., Pizzuto, Joy and Krausman, JJ., concur.