The famed jeweler Harry Winston died on December 8, 1978. Nearly thirty years later New York’s Second Department Appellate Division has ruled in the Matter of Harry Winston NY Slip Op3319 that Mr. Winston’s trustees acted appropriately pursuant to an accounting filed in 1982 over the objections of his son Bruce Winston and other members of the family who claimed that the trustee Deutsche Bank Trust Company New York breached its fiduciary duty by failing to properly value the stock at the inception of the trust.
The court found, among other things, that the Surrogate’s Court which originally heard the case acted properly in determining that the trustee bank had not breached its obligations to the beneficiaries of the trust. The lower court enjoyed the advantage of hearing and seeing the expert witnesses who testified rather than merely reading the transcript of their testimony as an appellate court must do. The appellate court determined that it would not be proper in this case to second guess the original trial court where the decision had to hinge in a large part on the assessment of the quality and weight of the testimony of experts. It was also noted that since Bruce Winston had actually consented to the 1982 decree of the surrogate which judicially settled the accounting of the trustee, he had lost his standing to object to the accounting.
As a litigator, I am somewhat amused by a client who wants to throw his or her money at a lawyer to fight over what was a done deal twenty five years ago but there really is a time for everything to end. It is altogether possible that some of the attorneys working on this matter as it wended its way through the Appellate Division this year were not even glimmers in the minds of their parents when Mr. Winston passed away! The legal profession will always find a way to accept a fee from someone who is determined to be heard and to make a point but it might be wise to remember the counsel of the late Vice President Hubert Humphrey who was quick to warn that we all have a right to be heard —but not necessarily to be taken seriously.