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Matter of Estate of Michael Tarby

Decided: March 23, 1953.

IN THE MATTER OF THE ESTATE OF MICHAEL TARBY, DECEASED


On order to show cause.

Duffy, J.c.c.

Duffy

Michael Tarby died, a resident of Hudson County, on August 18, 1950 leaving a last will and testament which was probated in the Surrogate's Court on September 9, 1950. Testator's sister, Julia, and her husband, Max Yadlowsky, were named in the will as executors and trustees. They duly qualified as such.

After providing for the payment of debts and funeral expenses, the will placed the entire estate, including the proceeds of several life insurance policies, in trust for the support, maintenance and education of testator's infant son, Michael Tarby, Jr. with the proviso that the corpus be delivered to him upon the achievement of his twenty-fifth birthday. The will further directed that if Michael, Jr. did not visit members of the testator's family at least once a month, the executors-trustees could postpone the time for payment of the corpus ten years, that is, until he attained the age of 35 years. In the event Michael, Jr. died prior to his twenty-fifth birthday, alternate beneficiaries are named in his place.

With respect to the executors and trustees, the Second clause of the will specifically directed that "They shall not post a bond or be accountable to anyone for their actions." The Third clause reiterated that they serve without bond.

The matter is before me on order to show cause obtained by Anna Horbota Tarby, mother and duly appointed guardian ad litem of Michael, Jr., wherein she seeks to compel the executors to file an account of their administration. The

latter contend that they are absolved from such obligation under the terms of the will, by reason of the sentence quoted above.

Anna's marriage to the testator was terminated by divorce. As indicated previously, she received nothing under his will. Michael, Jr. is now nine years of age.

Neither counsel for the respective parties have found, nor can I find a reported decision in New Jersey exactly in point on the question presented. Our statute, N.J.S. 3 A:9-1, under the title Accounting , Article 1 When Unnecessary , provides:

"A guardian or testamentary trustee need not render or settle his account if he files, in the court wherein he was appointed, a release or discharge from the ward or cestui que trust , providing such ward or cestui que trust is of full age and is mentally competent.

Such release or discharge shall be executed and acknowledged as provided for deeds of real ...


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