LINCOLN FIRST BANK, N.A., APPELLANT - RESPONDENTS, HOWARD ULLMAN, AS
PERSONAL REPRESENTATIVE & C., RESPONDENT - APPELLANT, STATE OF NEW YORK, ON
BEHALF OF CHARITABLE BENEFICIARIES, RESPONDENT - APPELLANT. (APPEAL NO. 2).
(In the Matter of the ESTATE OF Rodney B. JANES, Deceased. Lincoln First
Bank, N.A. (Successor by Consolidation to Lincoln First Bank of Rochester),
as Coexecutor of Rodney B. Janes, Deceased, Appellant-Respondent; Howard
Ullman, as Personal Representative of the Estate of Cynthia W. Janes,
Deceased, et al., Respondents-Appellants.)
90 N.Y.2d 41, 681 N.E.2d 332, 659 N.Y.S.2d 165 (1997).
May 1, 1997
4 No. 53 (1997 NY Int. 56)
Decided May 1, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
William S. Brandt, for Appellant-Respondent.
Troy J. Oechsner, for Respondent-Appellant SNY.
Mitchell T. Williams, for Respondent-Appellant Ullman.
The New York Clearing House Association et al., amici curiae.
LEVINE, J.:
Former State Senator and businessman Rodney B. Janes (testator) died
on May 26, 1973, survived solely by his wife, Cynthia W. Janes, who
was then 72 years of age. Testator's $3,500,000 estate consisted of a
$2,500,000 stock portfolio, approximately 71% of which consisted of
13,232 shares of common stock of the Eastman Kodak Company. The Kodak
stock had a date-of-death value of $1,786,733, or approximately $135
per share.
Testator's 1963 will and a 1969 codicil bequeathed most of his estate
to three trusts. First, the testator created a marital deduction trust
consisting of approximately 50% of the estate's assets, the income of
which was to be paid to Mrs. Janes for her life. In addition, it
contained a generous provision for invasion of the principal for Mrs.
Janes's benefit and gave her testamentary power of appointment over
the remaining principal. The testator also established a charitable
trust of approximately 25% of the estate's assets which directed
annual distributions to selected charities. A third trust comprised
the balance of the estate's assets and directed that the income
therefrom be paid to Mrs. Janes for her life, with the remainder
SNIPPETS:
LINCOLN FIRST BANK, N.A., APPELLANT - RESPONDENTS, HOWARD ULLMAN, AS PERSONAL REPRESENTATIVE
(In the Matter of the ESTATE OF Rodney B. JANES,
Lincoln First Bank, N.A., as Coexecutor of Rodney B. Janes, Deceased, Appellant-Respondent;
This opinion is uncorrected and subject to revision before publication in the New York
Former State Senator and businessman Rodney B. Janes died on May 26, 1973, survived solely by
The Kodak stock had a date-of-death value of $1,786,733, or approximately $135 per share.
First, the testator created a marital deduction trust consisting of approximately 50% of the
Letters testamentary issued to petitioner's predecessor, Lincoln Rochester Trust Company, and
The memorandum did not otherwise address investment strategy in light of the evident primary
Although Mrs. Janes was informed at the meeting that petitioner intended to retain the
Objections to the accounts were originally filed by Mrs. Janes in 1982, and subsequently by
In seeking to surcharge petitioner for losses incurred by the estate due to petitioner's
In calculating the amount of the surcharge, the court adopted a "lost profits" or "market
The Appellate Division modified solely as to damages, holding that "the Surrogate properly
No precise formula exists for determining whether the prudent person standard has been
In undertaking this inquiry, the court should engage in "a balanced and perceptive analysis
And, while a court should not view each act or omission aided or enlightened by hindsight
The inquiry is simply whether, under all the facts and circumstances of the particular case,
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