Chemical Bank & Trust Company v. Ott

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Chemical Bank and Trust Company, Formerly The Chemical National Bank of New York, as Trustee under a Certain Trust Indenture Dated February 19, 1929, and as Trustee under a Certain Supplemental Indenture Dated April 12, 1930, Executed by Mary A. Ott v. Margaret K. Ott, Individually and as etc., of Henry L. Ott, Clarence F. Ott, Lillie Ott Snyder, Alfred W. Ott, Blanche Marye Ott Hawkins, John Lapsly Ott (Appeal Withdrawn), Mary Louise Ott, Clarence Charles Meixner and Charles Bernard Irvin Manteuffel, Appellants-Respondents, Impleaded with Edith Margaret Ott Meixner, Ruby Florence Ott Manteuffel and Chemical Bank and Trust Company, as Administrator with the Will Annexed of Mary A. Ott, and All Other Persons Who, as Assignees, Legatees Next of Kin, Issue or Otherwise of the Said Mary A. Ott, or of Any of the Above-named Parties, or by Purchase, Inheritance or Otherwise Have or Claim to Have an Interest in the Property Which Is the Subject of This Action, Which Persons, if Any There Be, and Their Names and Residences, Are Unknown to the

Opinions in this case

Majority — Glennon
Dissent — Dore

Glennon, J. We are in accord with the views expressed by Mr. Justice Dore, except as to the formula for calculating damages. In our opinion, the amount of the surcharge should be based solely on the loss to the estate, consisting of the difference between the price finally received and the amount that would have been realized if the trustee had performed its duty at the expiration of the eighteen months’ period, which commenced at the date of the death of the settlor. The judgment should be modified as thus indicated. • In order to avoid the necessity of remitting the case to the referee for the purpose of fixing damages, counsel may submit on notice the actual figures with calculations of the loss, so that it may be reflected in the judgment to be entered. Martin, P. J., and Untermyer, J., concur; Dore and Cohn, JJ., dissent in part.