In re the Estate of Liebowitz

Order entered on or about July 8, 1969, unanimously modified on the law by striking therefrom the second ordering paragraph and, as so modified, affirmed, without costs and without disbursements. It appears that stock of Publix Shirt Corporation was the most valuable asset of the decedent’s estate. It further appears that the executor sought to be examined personally owns approximately half of the voting shares of that corporation, the other half being owned by a relative not involved in this proceeding. Also, individually and as executor and trustee he owns somewhat more than half of the nonvoting shares. It is perfectly clear that what executive control of the corporation he exercises does not stem from the stock owned by him in a fiduciary capacity either as executor or trustee. It follows that the corporation and the estate cannot be regarded as a single entity and that the Surrogate’s Court has no jurisdiction over the management of the corporation (Matter of Sylvester, 5 A D 2d 970; see, also, Matter of Auditore, 278 N. Y. 234, 244). It appears that the respondents, beneficiaries of the estate, are dissatisfied with the corporation’s dividend policy. The proper forum for any such claim would be an action in the Supreme Court. Concur — McGivern, J. P., Markewich, McNally and Steuer, JJ.