Wills, Trusts, and Estates, Pages 602–609

In re Rothko

Court of Appeals of New York, 1977


Decedent, an abstract expressionist painter, died testate. His main assets were 798 very valuable paintings. He named Reis, Stamos, and Levine as executors.

One of the executors, Reis, was a director, secretary, and treasurer of MNY, an art gallery. Decedent had previously had MNY sell some paintings for a 10% commission. After he died, the executors sold MAG, a related gallery, 100 of the paintings for $1,800,000, $1,600,000 of which was to be paid interest-free over 12 years. The remaining 700 paintings were given to MNY to sell for a 50% commission, or a 40% commission for paintings it had other dealers sell.

Petitioner, decedent's daughter instituted this proceeding to remove the executors, to enjoin MNY an MAG from disposing of the paintings, and to rescind the agreements, to return the paintings, and to get damages.

Procedural History:

  • The trial judge said that Reis was in a position of serious conflict of interest and that he benefiting Marlborough to the detriment of the estate. He said it was also in Stamos's best interests to curry favor with Marlborough and that Levine just failed to exercise ordinary prudence in not investigating the actions of his coexecutors. He concluded that this justified mandating their removal as fiduciaries.

    Also, it was then found that the MNY and MAG violated a court restraining order and injunction by selling 57 paintings. It was also found that MNY, MAG, and Lloyd provided inadequate value to the estate, amounting to a lack of fairness, leaving MNY, MAG, Lloyd, Reis, Stamos, and Levine jointly liable for $6,464,880 in damages. MNY, MAG, Lloyd, Reis, and Stamos were also liable for $9,252,000 "as appreciation damages less amounts previously paid to the estate." Returning any of the 57 paintings would decrease the amount owed if the new fiduciary decided to accept them.

  • The Appellate Division deleted the option for the new fiduciary to decide which paintings he would accept, but otherwise affirmed.

Respondent's Arguments:

  • The no-further-inquiry rule does not apply when there is a conflict of interest but no self-dealing. If the deal was fair and made in good faith, Reiss did not incur liability.

  • If there is liability, the damages are too high. The beneficiaries are not entitled tot he value of the property if the trustees just sold it for too little. The damages are just supposed to be the difference between the sale price and the value.


  • Does the no-further-inquiry rule apply when there is a conflict of interest but no self-dealing?

  • What are the damages for self-dealing?


  • If the only breach of trust is selling the property for too little value, the damages are the difference between the sale price and the value. Otherwise, the damages are the full value of the property.


  • The lower courts did not rely solely on a no-further-inquiry rule, and there is plenty of evidence that the deals made were neither fair nor made in good faith.

    Also, an executor who knows that his coexecutor is committing breaches of trust but does not try to prevent them is legally accountable.

    MNY and MAG knew they were breaching trust despite their claims.

  • The damages are only the difference between the sale price and the value if selling too low was the only thing done wrong. This lesser value is to encourage trustees to be willing to sell and fulfill their duties. If there is another breach of trust like a serious conflict of interest however, the damages are the full value to discourage this integral violation of the trust. There is no policy reason to lower them.

    The paintings cannot be returned from the buyers, so the estate is entitled to their value of the paintings. Their value at the time of the lower court's decree cannot be exactly determined, but its valuation had a reasonable basis of computation and was not merely speculative, so it was not legally erroneous.


No, but there is plenty of evidence that these deals made in conflict of interest were not fair. The damages are the full value of the property. Affirmed.