The decedent, Evelyn Berry, had been married twice. At the time of her death, the two children of her first marriage (Darryl and Tara) were adults. The two children of her second marriage (Garrett and Brook) were minors. Evelyn’s will included a testamentary trust for the maintenance, support and education of Garrett and Brook. Darryl and Tara were the co-trustees of the trust.

The trust for Garrett and Brook provided that, upon their emancipation, the remainder was to be divided equally among the four children. To fund the trust, the will permitted Darryl to purchase a liquor store owned by the decedent, and to make monthly payments of the purchase price into the trust. The will also permitted the beneficiaries to recover attorney fees if Darryl defaulted on his obligation to make payments on the liquor store.

A lawsuit was instituted on Garrett and Brook’s behalf against Darryl for mismanagement of the trust. They alleged that Darryl had misappropriated trust funds and mismanaged investments, among other things. Following a six-day bench trial, the Chancery Division judge found that Darryl had engaged in self-dealing, and awarded damages and counsel fees in favor of the plaintiffs and against Darryl in the amount of $554,893. The trial judge found that the co-trustee, Darryl’s sister Tara, had not been complicit in Darryl’s wrongdoing. The judge had found credible Tara’s testimony that she did not control, invest or borrow trust funds, and concluded that Darryl was solely responsible for the damages.

On appeal, Darryl claimed, among other things, that his sister, as co-trustee of the trust, should have shared liability with him. The appellate court found that the trial judge had “properly rejected defendant’s request to hold Tara liable for not stopping him” from committing the wrongdoing. It also affirmed the award of counsel fees, based upon the will provision permitting recovery of attorney fees.

A copy of In re Estate of Berry can be found here –  Matter of the Estate of Evelyn Berry

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