Matter Of Kinzler

195 A.D.2d 464 (1993)

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Nature of the Case

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Facts

Pauline died on February 26, 1986. She was survived by three daughters: Gloria Zweibon, Louise Kinzler, and Beatrice Hornstein. The will was drafted by her son-in-law, Bertram Zweibon (D), whom she also nominated as the executor. The will divided the estate into three parts, one-third to Louise Kinzler, one-third outright to Gloria Zweibon, and one-third in trust for the benefit of Beatrice Hornstein, as the income beneficiary, and the remainder to Hornsteins' children, Jay, Joseph and Eric (Ps). Louise Kinzler and Gloria Zweibon were appointed cotrustees of the testamentary trust by the will. D sold Pauline’s home to Louise Kinzler and then refused to pay income to P and made a cash distribution to his wife, Gloria from the house proceeds. D also paid attorney fees to himself without court approval. After D submitted the account and filed a petition for final judicial settlement thereof, Ps filed various objections to the account. Ps sued D for judicial settlement. The court awarded Ps’ attorney $7,000 as and for legal fees, payable by the estate, held that the sale of the decedent's residence to one of the beneficiaries, who was also a testamentary trustee under the will, was tainted with a conflict of interest and self-dealing, held the payment by the executor to himself of advance legal fees, without prior court order, to be improper and ordered him to refund $11,595.15, plus interest in the amount of $16,398.68, for a total of $27,993.83, and fixed the legal fees of the executor in amounts less than requested. D appealed.