In re the Construction of an Indenture of Trust

Kupferman, J. The question is as to the status of petitioner Ulrich Wehrli, a Swiss national, as possible substitute successor trustee under an indenture of trust dated October 18,1963, which trust is now said to be worth some $17,000,000. — 490 — Alfred Jurzykowski, a Brazilian, set up the trust with the First National City Trust Company (Bahamas) Ltd. It was amended twice, and while a third amendment was pending, the settlor died in May, 1966. With the death of the settlor, the bank’s trusteeship terminated and the trust’s Bahamas situs changed to the District of Columbia. The successor trustees had the right to change the situs, and they did, to New York City. The trust will continue until 1984 (it could have continued longer, i.e., for the life of the settlor’s widow, Milena Jurzykowski, but she died recently). Upon the settlor’s death, the trust agreement provided that Milena Jurzykowski, the widow, Andrew Bey and William E. Carey, Jr. become successor trustees. The settlor left two daughters, each of whom becomes a trustee on reaching the age of 21. One of the daughters, Yolande Louise Jurzykowski, reached her majority in 1968 and is a trustee. The other, Milena Christine Jurzykowski, a minor, appears in this proceeding by a guardian ad litem. In June, 1967, Bey resigned as trustee. Despite the elaborate provisions of the trust instrument, death or incapacity were covered, but not, in Jiaec verba, this resignation. If we can construe a resignation as being an incapacity, that created a vacancy. Under the terms of the trust, as amended, paragraph 6(i), it was to be filled by the petitioner Ulrich Wehrli as a substitute successor trustee. Upon the death or incapacity of the second successor trustee (in this case William E. Carey, Jr. was removed, with his consent, for physical incapacity in January, 1969), a bank or trust company was to be designated by the remaining successor trustees. When Mr. Carey was removed, Milena Jurzykowski designated Schroeder Trust Company, which filed a duly executed acceptance, and, to the extent that he had any position, Ulrich Wehrli has acquiesced in this choice. By a further provision in paragraph 6 (i), Milena Jurzykowski had the personal right, if she so chose, during her lifetime and after the designation of a trust company, to appoint any individual trustee to fill any vacancy created by death or incapacity. In accordance with this provision, Mrs. Jurzykowski designated Dr. Eugene G. Lobert and Dr. William Pyka to fill the Bey and Carey vacancies, and they filed their acceptances. Ulrich Wehrli objects to the latter two appointments and contends that either he succeeded to the Bey vacancy if that was an incapacity, or to the Carey vacancy, which is conceded to be an incapacity. Paragraph 6(d) of the trust agreement requires that a successor trustee qualify as such by delivering or mailing written — 491 — acceptance duly acknowledged to Mrs. Jurzykowski. Mr. Wehrli did not do this and indicated a position with respect to the trust only in February, 1969, in reply to a letter from the Schroder Trust Company. It is contended by the guardian ad litem that Wehrli, not having acknowledged his original 1967 accession as a successor trustee, has waived any position with respect thereto, and it is further contended on behalf of the family beneficiaries of the Jurzykowski trust and by the various other parties involved in the litigation that he is in a conflict of interest position with the beneficiaries because of difficulties with him in connection with his management of Liechtenstein Anstalts, which are in the nature of trusts, established by the settlor. It seems to be conceded that if a trustee would be removed for any reason that the same grounds can be used to prevent his qualification. However, it is contended on behalf of the petitioner that summary judgment should not have been granted denying him his claimed position. It would seem that the facts have been sufficiently developed on the papers so we can decide the case on the record before us. (Matter of Angell, 268 App. Div. 338 [3d Dept., 1944] affid. without opn. 294 N. Y. 923.) The friendly relationship shown to exist with petitioner early in 1966 prior to the controversies and prior to the death of the settlor, has not continued due to the Liechtenstein Anstalts situation. Among other problems therein, which lead to the conclusion that any hostility has a rational basis, are that petitioner failed to get a receipt for a $50,000 payment, a question of his responsibility for a $100,000 loss claimed, delay in making a distribution to this trust of $14,000,000 from the Anstalts, and litigation commenced by Milena Jurzykowski in Switzerland against the petitioner after she had removed him from authority with respect to the Anstalts, to obtain release of whatever books and records may exist with respect to the operation of the Anstalts. While it may be that the petitioner took no action with respect to being involved with the trust until 1969, because there was a legal question of- his proper succession to the Bey vacancy, it could be that his interest was aroused because he was in litigation in Switzerland over the contentions with respect to his conduct of the Liechtenstein Anstalts. A conflict of interest would not be mitigated, as suggested, by the death of the widow. The hostility, moreover, continues through the junior members of the family, one of whom is already a trustee, and it could interfere with the proper administration — 492 — of the trust. (Matter of Edwards, 274 App. Div. 244 [4th Dept., 1948].) Although they have been raised, we have not pursued the contentions that Ulrich Wehrli is disqualified because his ability with the English language is poor, or because he is a Swiss resident and national with a full time banking occupation in Switzerland, and it would be difficult under Swiss banking laws to determine his financial involvement. It is assumed that the testator was familiar with these factors at the time he included Wehrli’s name in the trust instrument as a possible substitute successor trustee, and his determination cannot be ignored, (Jessup v. Smith, 223 N. Y. 203, 207 [1918]; Matter of Leland, 219 N. Y. 387, 393 [1916].) Judgment granting summary judgment should be affirmed, with costs and disbursements to all parties filing briefs, payable out of the trust estate.