In connection with the first and final account of Robert G. Haule, as successor co-trustee of the trust created under the will of Vito J. Suglia, this court issued Decision No. 28294, on December 7, 2012, in which the court requested the following supplemental information:

1. An affidavit from the trustee reflecting that partial distributions to the beneficiary had been made or, in the alternative, further explanation for the trustee's failure to make the required distributions. The trustee has submitted an affidavit in which he reiterates that he was unable to timely make the first distribution (one-third of principal) on November 10, 2006 because he lacked documents, knowledge, and letters and certificates of trusteeship. In addition, in November of 2006 he was preoccupied with the probate of his sister Elizabeth's estate. No explanation is offered as to why the distribution was not made sometime in the years that followed.

The trustee then advises the court that he could not timely make the second required partial distribution (one-half of remaining principal) on November 10, 2011 for the following reason, as set forth on page 2 of his affidavit:

"[M]y Accounting Petition was in the process of being prepared to seek approval as of October 31, 2011 which is the account presently before this court. It would have been unreasonable to make a distribution in the midst of the pending proceeding it being presumed that the account proceeding would rapidly proceed avoiding the necessity of a partial distribution when a final distribution and termination of the trust was being sought. In the interest of judicial economy and saving money for the estate for preparation of an interim account, no distribution was made."

It remains unclear why the trustee believed that it would be unreasonable to make a distribution required by the terms of the trust while an accounting proceeding was pending. In [*2]fact, the trustee's affidavit fails to provide any meaningful justification for his not having made either of the required distributions since November 2006.

At the same time, the court recognizes that no objections were filed to the trustee's administration of the trust. Accordingly, statutory commissions are approved, although not in the amount shown on Schedule H of the account as originally filed, which anticipated the immediate payout of the entire remaining principal on hand.

2. Additional support for the trustee's request that the court approve early termination of the trust. In support of his request for this court's approval of the trust's immediate termination, the trustee notes that upon his resignation, the sole trustee and beneficiary will be Robert Suglia. He states, on page 3 of his affidavit:

"[I]n the interest of judicial economy and avoidance of expenses there is no reason other than the strict adherence to the trust terms why Robert Suglia as trustee, income beneficiary, and ultimate beneficiary should not receive the trust assets at this time. . . . We are dealing with a 53 year old man born [in] 1959, why should the Trust not now be terminated?"

It is well established that unless a person's testamentary plan is contrary to public policy or against the law, a testator may dispose of property in any manner chosen by the testator. The role of the court is to implement the testator's plan, as set forth in the last will and testament, "determining intent from the words used in the will and construing them according to their everyday and ordinary meaning" (Matter of Walker, 64 NY2d 354, 357-358 [1985] [internal citations omitted]; Matter of Watson, 262 NY 284 [1933]).

In the present case, the testator's plan is absolutely clear: to maintain the assets in trust for his son, with a partial distribution to be made within six months of his wife's death (no later than November 6, 2006), and a second partial distribution to be made five years after the first distribution (November 6, 2011), with the entire balance of principal and income payable to the beneficiary on November 6, 2016. The testator did not authorize withholding the partial distributions nor did he authorize an early termination of the trust. There is no statutory basis for the court to grant the requested relief and approve the proposed termination. Moreover, the trustee's narrative concerning his experiences in dealing with the beneficiary, who has proven to be uncommunicative, seemingly reclusive and uncooperative, only serves to highlight some of the possible reasons for the testator's decision to place the assets allocated for his son in a trust rather than distribute the assets to his son outright.

3. Supplemental information concerning the unusually large fee paid to the process server. In response to this request, the process server filed an affidavit dated January 14, 2013, in which he provides an additional description of and explanation for his fee of $1,100.00 for his unsuccessful attempts to serve citation on the sole beneficiary. The court approves the fee but notes that while exercising due diligence, a process server, and the fiduciary and counsel who engage his or her services, must try and keep the expense of service somewhat proportionate to the task at hand and to the amount of the assets. A professional process server is undoubtedly aware that if personal service on an individual cannot be achieved after a reasonable effort has been made, the court may and will, if given appropriate supporting documentation, direct substituted service.

In addition to the documentation discussed above, counsel for the trustee submitted an affidavit summarizing the requested information and attaching schedules which bring the account down to date through December 31, 2012. The affidavit reflects total principal charges [*3]of $296,623.16 and a principal balance of $290,884.54. The income balance is shown as $14,948.99, resulting in a total of $305,833.53 on hand.

The account is approved.

The court will treat the trustee's prayer for relief for termination of the trust as a petition by the trustee for permission to resign. Robert G. Haule shall nominate a successor co-trustee, to serve along with the beneficiary, of the trust created under paragraph Second (b) of the decedent's will for the benefit of Robert Suglia. If Robert G. Haule fails to nominate a successor trustee within 45 days of the date of this decision, or sooner advises the court in writing that he will be unable to comply with this directive, the court will appoint a successor co-trustee to serve in his place.

Upon the appointment and qualification of a successor co-trustee, the resignation of Robert G. Haule will be given effect. The court directs the successor trustee to promptly make the two partial distributions directed by the terms of the decedent's will.

This constitutes the decision and order of the court.

Dated: June 4, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court