IN RE: the Accounting by Joseph STANZIONE as the Executor of the Estate of L. Frank Weygand

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Surrogate's Court, Greene County, New York.

IN RE: the Accounting by Joseph STANZIONE as the Executor of the Estate of L. Frank Weygand, a/k/a Louis Frank Weygand, Deceased.

Decided: April 19, 2004

James F. Keefe, Cairo, for petitioner. Eliot Spitzer, Attorney General, Timothy B. Lennon, Assistant Attorney General, Albany, for charitable beneficiaries.

Petitioner has filed an account in the above estate rendered for the period of March 28, 2003 to February 2, 2004.   Objectant files a written objection to the account.   The sole objection relates to the allowance of commissions to petitioner, who is the attorney-draftsman of the will and who also serves as executor.   Objectant asserts there has not been compliance with SCPA 2307-a and commissions should accordingly be limited to one-half the amounts otherwise allowed.   Petitioner asserts the requirements of SCPA 2307-a have been satisfied by language set forth in the will itself.

The weight of reported opinion is that the disclosure required by SCPA 2307-a must be made in a writing separate from the will itself (Matter of Bruder, N.Y.L.J., March 15, 2001 at 25, col. 1, Sur. Ct. Nassau County;  Matter of McGarry, N.Y.L.J., June 10, 2002 at 31, Sur. Ct. Suffolk County;  Matter of Pacanofsky, 186 Misc.2d 15, 714 N.Y.S.2d 433 (Sur. Ct. N.Y. County 2000)).   Only one reported decision (Matter of Winston, 186 Misc.2d 332, 717 N.Y.S.2d 879 (Sur. Ct. Bronx County 2000)) holds to the contrary.

SCPA 2307-a(2) states that the testator's acknowledgment of the disclosure required by subdivision one of that section “must be set forth in a writing executed by the testator in the presence of at least one witness other than the executor.”   Further, such writing “may be executed prior to, concurrently with or subsequently to” the will, “and must be filed in the proceeding for the issuance of letters testamentary to the executor-designee.”

Petitioner's argument, that a requirement for a writing executed “concurrently with” the will may be satisfied by language set forth in the will itself, contorts the plain meaning of the language to reach a result.   Dictionary definitions of the word “with” include the senses “accompanied by”, “at the same time as or immediately after” and “indicating separation or removal from something”, all connoting separation rather than unity.   More importantly, petitioner's argument runs counter to the evident purpose of the legislation, which is to cause the testator's attention to be drawn separately at least once to consider, apart from the will's execution and in light of the factors required to be disclosed, whether he desires his attorney to serve as his executor.

Additionally, the language of the will in this case does not “substantially conform” to the requirements of SCPA 2307-a, for the will neither advises that a non-attorney may serve as executor, nor does it disclose that an attorney as executor would be entitled to a legal fee in addition to payment of an executor's commission.

Accordingly, the objection of the assistant attorney general is granted and petitioner's commissions as executor shall be limited pursuant to SCPA 2307-a(5) to one-half the statutory commissions to which he would otherwise be entitled.

DANIEL K. LALOR, J.