Court Discusses Validity of Will

February 20, 2015,

A Probate Lawyer said that according to sources, both cases involved issues as to the estate. In the first case, as an incident to an account by trustees of the trust for the benefit of testator's daughter, which terminated by her death, a construction is sought of the validity of the attempted exercise of a power of appointment of the corpus of the trust under the will of testator's other daughter. By article 'Second' testator created a trust of his residuary estate, the income of which was to be paid to his wife during her life. Upon the latter's death one-third of the corpus of such trust was continued for the life of testator's daughter, with the income payable to her during her life. On her death the principal was payable to her issue per stirpes, and in default of issue, the principal was payable to another daughter. The will further provided that if the other daughter predeceased her sister, the principal of said trust was payable to such person or persons as said other daughter directed or appointed by her will. If not effectively appointed, distribution was to be made to next of kin of the other daughter in proportions provided under the statute of distribution in effect at her death.

A New York Estate Lawyer said the daughter, the secondary life beneficiary died leaving no issue. Another daughter, predeceased her sister leaving a will which was admitted to probate. Under the third article of the will of the other daughter, her appointive power was exercised by creating further trusts for the benefit of her children, the principal payment to each child being deferred until they attained respective ages of 35, 40, 45 and 50 years. The Court holds that the appointment made under the will of the other daughter is invalid as violating the rule against perpetuities, in effect at the time of its exercise . The trust created thereunder suspended unlawfully the trust created under the testator's will. The principal of the trust must therefore be distributed equally to said children of the said other daughter living at her death as the alternative beneficiaries under the testator's will.

A Nassau County Probate Lawyer said that on the second case, Proceedings were brought to contest the probate of an alleged will. The Surrogate's Court, entered a decree granting in part the proponents' motion for summary judgment which directed specific performance of an agreement of compromise made in open court and denied contestants' cross motion to dismiss the petition. The Appellate Division reversed on ground that it was an improvident exercise of discretion to direct testatrix' daughters to specifically perform agreement of compromise allegedly made and recorded in open court, and an appeal was taken. Motion to dismiss the appeal granted upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the constitution.

A Staten Island Probate Lawyer said that the law provides that, “Before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution. The court may, however, accept an affidavit of an attesting witness in the manner and under the circumstances prescribed in this article. 2. If it appears that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate as a will valid to pass real and personal property, unless otherwise provided by the decree and the will and decree shall be recorded. 3. Where the petition alleges that the testator has disappeared under circumstances sufficient to justify the belief he is dead the court shall take proof of the facts. If it appears that the testator is dead the court may make a decree determining such fact and admitting the will to probate. The decree shall be binding in its effect upon the interests in the estate of persons under disability and of future contingent interests of persons not in being as well as the interests of adult competent persons.”

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Petitioner Bring Motio to Construe Joint and Mutual Will

February 20, 2015,

Probate Lawyers said this is a proceeding to construe a joint and mutual will executed by decedent and his wife on March 5, 1956. The wife died on March 31, 1964 and said instrument was probated in this Court as her last will and testament. Shortly thereafter decedent was adjudicated an incompetent. He died on November 27, 1966 and the same instrument was probated as his last will and testament on June 2, 1967. The probate decree reserved the present construction question raised by decedent's brother for determination upon the accounting or, as now, in an independent proceeding.

A New York Estate Lawyer said the following the customary exordium clauses, the testators by paragraph Second of the will devised and bequeathed 'all our estates and effects unto the survivor of either of us.' Paragraph Third provides:

'In the event that we both die simultaneously or in the same catastrophe, we hereby devise and bequeath all the rest, residue and remainder of our estate and our effects whatsoever and wheresoever the same may be situated, whereof we may be seized or possessed, or to which we may be in any manner entitled, or in which we may be interested at the time of our decease, unto our dear beloved nieces C and G, to share and share alike absolutely and forever.'
In paragraph Fourth Christine is named executrix and in paragraph Fifth Gloria is named alternate executrix, to serve without bond or security. Then follow the testimonium and attestation clauses with the necessary signatures of the testator and the attesting witnesses. Incidentally, one of the witnesses was the attorney-draftsman who also probated the instrument on each occasion, but he does not represent the executrix in this proceeding. The will thus does not provide for the contingency, which occurred, of the husband and wife not dying simultaneously or in the same catastrophe and for distribution upon the death of the survivor of them.

Nassau County Probate Lawyers said the records in this Court and the papers in the current file show that decedent left an estate of about $20,000 derived almost entirely from the estate of his wife. He was survived by a brother, petitioner herein, and a sister both residing in Italy, as his sole distributees, with whom it is alleged he had little or no contact. His wife was survived by two brothers in Italy and a widowed sister, as her sole distributees. Christine and Gloria aforementioned, respondents, are the latter's children. They allegedly were regarded by decedent and his wife as their own, especially Christine who had suffered an injury in their home where she was brought up.

A Staten Island Probate Lawyer said the foregoing explains to some extent why decedent and his wife, after providing exclusively for each other as survivor, made respondents their sole beneficiaries in the event they died simultaneously or in the same catastrophe. It is significant that respondents' appointment as executrix and alternate executrix respectively was general and not dependent upon the simultaneous deaths of the testators. Consequently Christine as executrix previously administered the estate of the testatrix and is now administering testator's estate.

In this proceeding respondents request a hearing in order to establish that the testators intended them to be their sole testamentary beneficiaries even, as it occurred, that they did not die simultaneously or in a common disaster, although the will does not expressly so indicate. They claim the right to share equally in the estate of decedent as surviving testator on the basis of a gift by implication consonant with this alleged intention.

Petitioner, on the other hand, contends that the failure to provide for distribution in the event which occurred, namely the non-simultaneous death of decedent herein, results in intestacy and that his estate must therefore be distributed to petitioner and his sister as his sole distributees. He contends that since it is argued that the will is clear and unambiguous there is no need or room for construction and there is no duty or authority on the part of the court to supply the missing element in the testamentary scheme even at the risk of producing complete intestacy.
But petitioner's contention overlooks the most important and overriding duty that rests upon the court to ascertain the testator's intent if at all possible and to endeavor to construe his will so as to carry out his intention if not contrary to law. The court may not, of course, rewrite a will and supply an omission, even if inadvertent, based upon extrinsic evidence of intent. But where a firm basis for the construction is found in the will the court may add, excise, change or transpose language or provisions in order to effectuate testamentary intention as ascertained.

The Court of Appeals in Matter of Englis' Will (2 N.Y.2d 395), called it a rare case in which a gift by implication may be upheld but emphatically asserted the existence of the power to do so when it said 'there are, of course, situations where common sense and justice require that the courts correct situations resulting from obvious error or omissions in wills. To justify a gift by implication in those cases in which one could discover a group of people to whom as a group, the testator limited his beneficence.

This case falls within that classification. The group mentioned in the will herein as the only beneficiaries thereunder is composed of the two nieces of the wife but described as 'our dear beloved nieces.' The only testamentary disposition in the will, after the one to the surviving testator, is made to respondents in a remote contingency which is provided for but did not occur, namely, 'in the event that we both die simultaneously or in the same catastrophe.'

Is there a solid basis in the will as a whole in the light of the surrounding circumstances to read the omitted usual and most probable contingency into the common disaster clause, paragraph Third, and to hold that the same disposition of testator's estate applies to that contingency which did occur, thereby constituting a gift by implication to respondents? The inescapable answer appears to be in the affirmative.

The will shows clearly that, after accomplishing their primary purpose of bequeathing all of their property to each other as survivor, the testators had in mind as their only beneficiaries their 'dear and beloved nieces.' Under the circumstances herein it would be most unreasonable to assume that they intended to limit distribution to respondents so affectionately described in the event only of the testators dying simultaneously or in the same catastrophe. But construction may not rest exclusively on assumptions dehors the will. That they did not so intend is apparent from the provisions in Paragraph Fourth appointing respondents as fiduciaries generally, and not limited to the contingency of the simultaneous deaths of the testators.

It can hardly be conceived that they intended their niece as executrix to administer the estate of the first of them to die for the benefit of the survivor and thereafter, upon the death of the survivor, to preside over the administration of the survivor's estate, as respondent is now doing, for the benefit of the very persons who are not mentioned in the will and could benefit only if the will is construed to produce intestacy, which result no testator intends except as sometimes expressly provided to apply in remote contingencies of no interest. Paragraph Fourth, appointing respondents as executrix and alternate executrix respectively, Whether testators died simultaneously or not, carries with it the necessary implication that the administration of the estate of the surviving testator herein was intended to be for the sole benefit of the two nieces, likewise in either of said contingencies.

The provision appointing respondents as the fiduciaries as an effective part of testators' testamentary scheme, viewed in the light of the surrounding circumstances, distinguishes the instant case from the cases cited by the petitioner. In those cases the appointment of the beneficiary-fiduciary was tied in with the common disaster clause and the wills as construed had no testamentary effect whatever, it being reasonably assumed under the circumstances that the interests of the beneficiary-fiduciary were confined to the common disaster contingency.
Another distinguishing factor is that in Imperato (44 Misc.2d 639, 254 N.Y.S.2d 581) the testators had five children, of whom only two were mentioned in the common disaster clause which contained the only testamentary disposition and fiduciary nomination. It seemed reasonable for the learned Surrogate to assume that the testators intended the two beneficiaries named to take Only in the event of their common deaths and intentionally left the survivor free to make any disposition that he or she might wish to make for the benefit of All of their children equally dear to them, failing which, the estate would pass to them equally by intestacy.

In the instant case the opposite conclusion appears to be justified. It is most reasonable to assume, in the light of the testamentary scheme and provisions, that testators intended respondents to take under the will even upon the death of the survivor, to the exclusion of their distributees in every contingency except, of course, in the probably unimagined event that both respondents would predecease the surviving testator, or if the surviving testator should make a new will. In any event, the court's construction holding that the will under consideration provides a gift by implication to respondents is not based upon surmise, speculation or a choice of conflicting assumptions. It is based upon viewing the will as a whole in the light of all of the circumstances which leaves no doubt in the mind of the court that testator intended respondents to share his estate upon his death in the event that occurred although not specified in the will.
No will has a brother, and no will must be interpreted in a vacuum. The surrounding facts and circumstances, some of which are described at the outset, are not denied and therefore no hearing is required to establish the relevant and material ones. This is to be distinguished from extrinsic evidence as to testamentary intent which is inadmissible in the absence of ambiguities in the will. Here there is no ambiguity in the language of the will, but there is an omission which the court is bound to supply if a basis is found in the will itself clearly indicating testamentary intention to make the disposition omitted but necessarily implied therefrom.

The court therefore holds that respondents are entitled to share the estate equally, and the will is so construed.

Death of a loved one may cause division to the surviving heirs when the latter fight before their inheritance. This is also true when the will executed by the decedent is ambiguous and entails two different interpretations of its provisions.
If you experience the same scenario as in the case above, seek the Kings County Probate Attorneys and Kings County Estate Lawyers of Stephen Bilkis & Associates.

Court Reviews Action to Impress a Trust on Funds Owned by Father

February 19, 2015,

Probate Lawyers said that records reveal that in an action to impress a trust upon funds on deposit claimed to be the property of the father, the father moved to enjoin the his daughter, and the banks in which the moneys are deposited, from withdrawing or in any manner disposing of the same. During the pendency of the motion the father died. The father's will, which was admitted to probate, named the daughter as the sole legatee of the father. The daughter now cross-moves to have the action discontinued and to vacate the temporary stay contained in the order to show cause which brought on the original motion. The executor of the deceased's estate, who is also the daughter's attorney, refuses to continue with the action and joins in asking for the relief sought by daughter. The sole objectant to the cross-motion is the attorney for the father in this action who claims a lien for services rendered herein and moves by way of separate petition to impress such lien under section 475 of the Judiciary Law.

A New York Estate Lawyer said that the father's action involved approximately $30,000. Immediately after the service of the summons and complaint, together with the motion papers containing the stay, the father and his daughter arranged for a settlement. The father notified his attorney to discontinue the action. To work out the mechanics of the settlement the father's attorney adjourned the motion containing the stay but in the meanwhile the father died. The terms of settlement provided that the daughter would retain the bulk of the money in dispute except that $1,300 would be turned over to the father and that she would pay the funeral, doctor's and hospital bills in connection with her late mother's last illness and funeral, which amounted to approximately $1,800. The attorney asks for a lien in an amount of $6,000 to $7,500. No agreement between the attorney and the father had been made with respect to the attorney's fees. Admittedly the estate of the father is in sound financial condition, having upwards of $100,000 exclusive of the moneys involved in this action, and it is willing to pay the attorney's just claims. Under these circumstances the wishes of the father to discontinue the action should be respected and given effect.

Westchester County Probate Lawyers said that it was was aptly said in Lee v. Vacuum Oil Co.: 'We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own case, and to determine when the litigation shall cease, and how far it shall be extended. The client still remains the lawful owner of the cause of action, and is not bound to continue the litigation for the benefit of his attorneys when he judges it prudent to stop, provided he is willing and able to satisfy his attorney's just claims. In fact the lien under the agreement, was intended for and operates only as security for the attorney's legal claims, and, unless those are prejudiced by the client's contract, she has unrestricted control of the subject of the action, and the terms upon which a settlement shall be effected.'

Suffolk County Probate Lawyers said that the attorney makes no claim that his rights will be prejudiced in any manner by the termination of this action and it is apparent that the father's estate is abundantly able and willing to pay his just compensation. Under such circumstances the attorney's lien should not stand in the way of a termination of the action. It appears, however, that the motion for discontinuance is made by the daughter. This is inappropriate in view of Rule 301, Rules of Civil Practice which specifically provides for discontinuance by the complainant. However, since the father has died and has willed his entire estate to the daughter the action has become academic. In view of this fact the defendant's motion will be considered to be one to dismiss the action on the ground that it has abated since the cause of action cannot now survive.

The separate motion on the petition of father's attorney cannot be entertained by the court since it does not appear that either the executor of the father's estate or the daughter has been served in the same manner as is provided for the service of a summons. Furthermore, the summary proceeding sought is 'generally applicable only to disputes between attorney and client' and 'cannot be summarily determined between an attorney and persons who are not his clients, particularly when the amount due is in dispute as in the situation here'. Accordingly, the father's motion to restrain the daughter is denied, the daughter's cross-motion is granted dismissing the cause of action and vacating the stay contained in the order to show cause, and the motion of the attorney for the father, to impress a lien, is dismissed, without prejudice to any other action or proceeding to enforce such lien.

Section 475 of the Judiciary Law provides that, “From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.”

Furthermore, as to probate, the law substantially provides that, “If a party in a proceeding for the probate of a will requests a determination of the validity, construction or effect of any provision contained in the will process shall issue to all persons interested in the determination who have not appeared in the proceeding and notice shall be given in such manner as directed by the court to all those persons who have so appeared therein. Upon the entry of a decree admitting the will to probate the court may determine the question of construction or in its discretion may admit the will to probate and reserve the question for future consideration and decree. A decree in any proceeding authorized in this section or a decree settling an account of a fiduciary or a decree on probate which construes or interprets any portion of a will, unless reversed or modified on appeal, shall thereafter be binding and conclusive in all courts upon all parties to the proceeding and upon their successors in interest as to all questions of construction or interpretation of the will therein or thereby determined and of all rights and obligations of the parties involved in the construction, depending thereon, or resulting therefrom.”

In cases involving estate litigation, will contest, estate administration, it is not uncommon that some of us secure the assistance of an attorney and often an accountant and possibly one or more appraisers. Stephen Bilkis & Associates, with offices located throughout New York, has its Kings County Estate Lawyers, and its New York Probate Attorneys who can assist you in the legal process of administering the estates of deceased persons.

Claimants Move to Dismiss Claims of Executrix

February 18, 2015,

A Probate Lawyer said on the records, this is a motion by claimants to dismiss the petition by the executrix for disallowance of their claims for accounting services allegedly rendered to testator. The ground for the motion is that this court was ousted of jurisdiction to adjudicate the claims because of the civil court action on the claims brought by claimants against the estate within 60 days after their rejection by the executrix. The opposition is based on the fact that the claims had been presented once before to the executrix, as preliminary executrix and rejected by her as such, and that the civil court action was not commenced within 60 days after such prior rejection, thereby requiring determination of the claims in this court either upon the accounting or, as requested, in this proceeding.

The sole issue involves the validity and effect of the prior presentation of the claims and rejection thereof by executrix as preliminary executrix. Claimants contend that as preliminary executrix, she had no power to receive and reject claims; that they were not bound by such rejection; that only the presentation of the claims to executrix was valid and that they were within their rights to commence the civil court action within 60 days from date of rejection by executrix. The two cases cited by claimants do not concern the issue at hand, nor do they in any respect support claimants' argument. In the first case the court held in abeyance the executor's application to disallow the creditor's claim pending expiration of the short statute of limitations in order to afford the creditor an opportunity to sue before such expiration. The second case, decided by this court, discusses the statutory powers of a preliminary executor and stresses that they are wider than those of a temporary administrator. If anything, that decision leads to the conclusion that rejection of a claim by a preliminary executor is as effective and binding as his other functions in the administration of the estate, subject to specific restriction by statute or court order of which none is present here bearing upon the issue.

The executrix relies upon Titus v. Poole, wherein a claim based on fraud was presented to the executors and rejected, whereupon civil action thereon was commenced promptly but resulted in a non-suit. Thereafter the claim was presented to the executors again, based upon breach of warranty. After its second rejection action thereon was commenced promptly but more than six months (the then applicable limitation) after the original rejection. The court said: 'The plaintiff, therefore, by the presentation of his original claim, under the statute subjected himself to the conditions which attached on its rejection, and thereupon the statute commenced to run against any cause of action founded upon the transaction embraced in the claim, whether an action for deceit or for breach of warranty. The party who presents a claim which is rejected cannot be permitted to evade the statute of limitations by successive presentations of claims founded on the same transaction, but varying in form or detail.' However, the short statute of limitations, otherwise a bar to the action, was held inapplicable because the case was brought directly within the saving provision of another statute permitting a complainant whose action was terminated by non-suit to commence a new action within a prescribed period of time after judgment, with which complainant had complied. But the quoted rule is applicable in the instant matter where no saving statute is involved, and SCPA 1810 bars claimants' pending civil court action, provided the earlier rejection of the claims by a preliminary executor is binding and effective.

A New York Estate Lawyer said the right of a preliminary executor, equally as that of a temporary administrator, to receive and approve or reject claims and, if rejected, to apply for determination by the surrogate's court cannot be questioned in this jurisdiction. Such procedures are of the very essence of estate administration, to expedite which temporary fiduciaries are appointed pending probate or issuance of permanent letters, besides enabling them to marshal and conserve estate assets. But while a temporary administrator lacks power to pay claims without prior court order except as provided in SCPA 903, the preliminary executor may, subject to some statutory limitations, pay claims with the same authority and accountability as that of a permanent fiduciary, unless restricted by the order appointing him or a subsequent order. Another essential, and here in determining difference is that a temporary administrator may not be sued without leave of court, whereas there is no such restriction in the case of a preliminary executor.

A Suffolk County Probate Lawyer said the need of obtaining leave of court to sue a temporary administrator is the basis for the holding in Matter of De Ridder, that the short statute of limitation did not apply to claims rejected by a temporary administrator, thereby allowing the creditor to submit his claim anew to the permanent administrator and sue after rejection within the time limitation. The court reasoned: 'It evidently was not the intent of the Legislature to hold that a creditor forfeited his right to bring action for a claim by a delay of three months after the rejection of his claim by a temporary administrator, when he could only sue by the permission of the surrogate, and any delay of the surrogate in deciding this motion which would place the time beyond three-months period would defeat his right of action. The right to bring a legal action is never made dependent upon the will of a judicial officer, and it seems clear that section 2681 (Code of Civil Procedure) does not apply to a claim rejected by a temporary administrator.' By analogy, therefore, in the case of a preliminary executor, who may be sued without prior order of the surrogate, a claimant must be held to forfeit his right to sue after expiration of 60 days from rejection of the original claim by the preliminary executor, and claimant cannot revive his right by presenting his claim anew to the permanent executor.

A Westchester County Probate Lawyer said this conclusion follows also from the general trend of statutory revisions pertaining to disposition of claims against estates and from the extension of definitional coverage. In 1956 section 208 of the Surrogate's Court, Act was amended 'to make clear that creditors of a deceased person have the same rights and duties in respect of filing claims as if a temporary administrator were an executor or administrator'. The present Act is intended to clarify, modernize and make uniform the procedures for the disposition of claims. Uniformity was advanced also by 'a new definitional section intended to add clearness and precision to the sections on claims in so far as their application to fiduciaries is concerned'. In 1963 section 217--a of the Surrogate's Court Act was enacted to define 'administrator' as including 'temporary administrator.'. That section was absorbed in SCPA 103, of which subdivision 21 includes 'preliminary executor' in the general term 'fiduciary' now used exclusively in SCPA, Article 18, dealing with claims, instead of 'executor or administrator' as previously in Article 12 of the Surrogate's Court Act. There is nothing in Article 18 which requires a distinction to be made between the various types of fiduciary in respect of rejection of claims by them, the effect of their rejection thereof and a claimant's right to sue after rejection of his claim by a fiduciary. It follows that failure to commence an action within 60 days after rejection of a claim by a preliminary executor bars civil action thereon and entitles the fiduciary to seek its adjudication in the Surrogate's Court. Claimants' motion to dismiss the executrix' petition is therefore denied.

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Court Deals with Conflicting Interpretation of a Will

February 16, 2015,

A Probate Court said records reflect that this construction proceeding raises questions in respect of the validity of a trust under decedent's will and the distribution of its remainder. The decedent died survived by his widow and six children. The will was admitted to probate and Letters testamentary and letters of trusteeship were duly issued. Complainants are the issue of the testator's son. They urge that the trust created under paragraph 'Fourth' unlawfully suspends the power of alienation and hence that the principal thereof must be distributed as in intestacy; or, alternatively, that the language of the will should be construed so as to include their father, and his issue, as remaindermen entitled to a share of the principal of the trust upon its termination. They allege that the trustee of the trust under the will of their father has refused to bring the proceeding after demand. The answer interposed by the surviving executor and trustee denies the allegations of the petition, sets forth several defenses thereto including among others that complainants are not proper parties in interest, that the will provision does not require construction and that by reason of article 'Seventh' of the will constituting an 'in terrorem' provision, they have no status in these proceedings.

A New York Estate Lawyer said the court noted from the first paragraph of article 'Fourth' that the use of the words by testator of 'my children', naming them specifically clearly showed that he did not want the complainants' father to have any interest in the estate. Similarly, although the contingencies expressed therein did not take place, the immediately following two paragraphs of article 'Fourth' again confirmed this intent by referring to the children 'hereinbefore mentioned' and by repeating the words my 'said children', 'said child' and 'issue of said child'. Article 'Second' of the will recites that no provision is made for testator's son, nor his wife, nor any other member 'of his family' by reason of the fact that testator in his lifetime entered into an agreement with his son, giving him and agreeing to give him a substantial sum of money 'which sum he is presently receiving and will receive under said agreement and therefore no provision whatsoever is made for him in this Will in any way with respect to any trust fund hereinafter established.'

Manhattan Probate Lawyer said the status of complainants as proper parties in interest to bring this proceeding and to seek a construction of the will was determined by this Court and such determination is adhered to. With respect to the 'in terrorem' provision of article 'Seventh', the Court holds that it is not applicable to a distributee who seeks a construction of any of its provisions. Decedent's widow, upon whose life the primary trust is measured, died on October 15, 1955. One of the sons, whose life measures the secondary term, is living. Decedent's grandchild, during whose minority a further term was to be measured, attained her majority on May 1, 1959. Were the said son to have died during the secondary term of the trust and prior to grandchild's attainment of her majority, the continuation of the trust during the minority of the grandchild would have been an unlawful suspension of alienation. What then is the effect of such possible unlawful suspension in the circumstance that the grandchild has attained her majority.

A New York City Probate Lawyer said the dominant and underlying principle expressed in cases applying well-recognized rules of construction is the effectuation, so far as possible within the permissible limits of the statute, of the intention of the testator. Provisions creating illegality will be ignored and the other provisions of a will preserved. Judicial surgery will be applied where the effect of the excision is to preserve the vital plan of the will. If the remainder of a trust, tainted by illegal suspension for more than two lives, is vested, we go forward with the testator for two determinable lives and eliminate what lies beyond; the limitation for the permissible period will be sustained and that which lies beyond will be excised.

Complainants urge that the trust must fall and the corpus thereof be distributed as in intestacy because of the testator's failure effectually to direct a distribution of its remainder. Their contention is predicated upon the argument that the word 'divide', used by testator in the first sentence of the paragraph relating to the distribution of the remainder, is inadequate to effect distribution. It is axiomatic that the testator's intent is to be discerned and accomplished if legally feasible. Literal interpretation and strict construction in conflict with an intended result, however imperfectly expressed, must be cast aside. The intention of the testator, discernible from parallel provisions of the will or the testamentary scheme as a whole, will not be defeated by imperfect expression and inept language.

In the second and third sentence of article 'Fourth' of the will, testator directs that the issue of a predeceased child or the surviving children of the testator are to take the share that a predeceased child would have received had he survived. The alternative distribution among the issue of a predeceased child or the other surviving children of the testator of a share that such predeceased child would have received had he survived inescapably leads to the conclusion that the word 'divide' as used in the earlier sentence of the paragraph intends apportionment and distribution to such child had he survived. Furthermore, the remainder vests pursuant to the rule of gift by implication, which is that if property or estate, claimed to be devised or bequeathed by implication in a contingency which has occurred, has been made the subject of an express bequest or devise in another contingency which did not occur, then effect may be given to such bequest or devise in the contingency which did occur. The express words of distribution in the event of a contingency which did not occur, to wit, prior death of one of the decedent's children, compels the distribution among the testator's surviving children described in article 'Fourth' in the contingency which did occur, to wit, the survivorship of such decedent's children.

Since the remainder of the trust is vested, the term which would have been measured by Marsha's minority may be ignored as academic or excised as superfluous. The contention that the annuity payments affect the validity of the trust is rejected. Alternatively, complainants urge that they are within the class of remaindermen entitled to share in the distribution of the corpus of the trust upon its termination. This contention is based upon the claim that the corpus of the trust at its termination is to be divided among such of decedent's children as survive him. The trustees under decedent's will oppose on the ground that the word 'children' does not include their father, because of article 'Second' of the decedent's will previously discussed.

The language of article 'Second' effectively eliminates their father, his widow, and complainants, as surviving issue of their father, from participating in the distribution of the remainder of the trust under paragraph 'Fourth'. The accomplishment of any other result would destroy testator's dominant plan of distribution which is so obviously discernible. Accordingly, the only persons entitled to share in the remainder of the trust upon its termination at the death are those children of testator who survived the testator, other than complainants' father. The will is construed accordingly.

Will contest, Estate administration, or Estate litigation, are some of the many kinds of actions that may be instituted against the estate of the decedent by those whose interest therein may be affected. In such cases, Stephen Bilkis & Associates, with offices throughout New York, has its Kings County Estate Lawyers, and its New York Probate Attorneys, who handle such situations expertly.

Court Hear Petition Action

February 15, 2015,

A Probate Lawyer said that according to sources, this is a partition action in which defense move, pursuant to Rule 107, subdivisions 2 and 3 of the Rules of Civil Practice, to dismiss the complaint on the grounds that the complainants have no legal capacity to sue and that there is another action pending between the same parties for the same cause. The issue of legal capacity to sue presented here may be determined in construction of paragraphs 'Third' and 'Tenth' of the will, the basis for the action in partition. Paragraph 'Third' of the will devises two parts of the remainder of the estate to the defendant and one part each to the complainants.

Paragraph 'Tenth,' subdivision 7, provides that the executors may sell or exchange any property (except any specifically bequeathed herein) at public or private sale at such price for cash or upon credit or partly for cash and partly upon credit, and generally upon such terms as my executors may deem proper and to make and deliver any and all instruments in writing necessary or convenient for any such purpose or purposes'.

A New York Estate Lawyer said that the defense contend that the above quoted power to sell is tantamount to a devise to the executors with a direction for sale and that under the circumstances an equitable conversion of the real estate into personal property occurred barring a partition action. The facts contained in the authority cited by defendants are clearly distinguishable from the situation presented herein. The underlying principle of equitable conversion hinges upon the language and the expressions used by the testator in the direction of sale of the real estate. In the absence of an imperative direction to sell, there can be no equitable conversion. As stated in White v. Howard: 'To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of and obligatory upon the trustees to sell it in any event. Such conversion rests upon the principle, that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result.'

Westchester County Probate Lawyers said the power of sale under the Tenth paragraph of the will is discretionary by its terms and does not affect an equitable conversion. A mere discretionary power of sale in the executors for purposes of distribution, even though connected with the right to receive rents, does not vest in them title to the real estate. Of course, the power of sale given by the will to the executors could be made effectual only by its valid exercise but it is clear this has never been effected. Under the circumstances, the complainants have legal capacity and are proper parties to institute action.

Suffolk County Probate Lawyers said that as to the second phase of defense motion, it is the court's view that the institution of the probate proceeding prior to the institution of the partition action does not bar the present action. While it is the general rule that where two courts have concurrent jurisdiction the first one assuming jurisdiction should retain the action to the exclusion of the other, it has been held in similar situations, as herein, that until the parties in the Surrogate's Court invoke the exercise of the discretion of such court to sell the real property, the plaintiffs in a partition action have the right to proceed therein. The assumption of jurisdiction by the Surrogate's Court in matters of this nature is not the issuance of letters of administration or testamentary, but rather upon application to such court to sell the real property and leave granted. Moreover, the pendency of this action does not preclude or prevent the executors from proceeding with such an application for the sale of the property in the Surrogate's Court under their discretionary power of sale. The motion is accordingly denied.

Stephen Bilkis & Associates, with offices located throughout New York, offer the services of its expert legal team dealing with actions involving estate litigation, estate administration, and such matters involving probate and the estate. The Kings County Will Contest Attorneys, and the New York Estate Lawyers, provide legal counselling and assistance for all.

Court Discusses Powers of Surrogate Court

February 14, 2015,

A Probate Lawyer said that sources revealed that this case deals with a slip and fall accident. Defense Attorneys have now moved this court to dismiss the within action with prejudice on the basis that their client has been deceased fro sometime and as such has no standing to be a party to litigation, could not have been properly served, and did not own the said premises on the date of the injury. In addition, the defense asserts that even if a proper defendant could now be found and interposed, said action would be time barred inasmuch as the applicable three year statute of limitations has expired. The complainant asserts that defense "motion should be denied due to the fact that their client is still listed as the owner of record and there is nothing in the record which would have put complainant on notice of the fact the the owner had died or that title had changed." The complainant has also submitted a cross motion for leave, in the interest of justice, to amend her complaint to add the representatives of the owner's estate as a party defendant. The complainant notes that although this action was commenced by the filing of a summons and complaint, to which the defense served an answer and a demand for a bill of particulars and for the complainant's deposition, it wasn't until after the expiration of the applicable statute of limitations that defense counsel sent her a copy of the owner's death certificate. Complainant further argues that her cross motion should be granted in the interest of justice inasmuch as the defense cannot claim surprise or prejudice thereby.

A New York Estate Lawyer said the Court of Appeals, in The Matter of Stern, expressly found that "The New York State Constitution confers jurisdiction on the Surrogate's Court over all actions and proceedings relating to the affairs of decedents, probate of wills, estate administration and actions and proceedings arising thereunder or pertaining thereto, and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law. The codification of the Surrogate's Court Procedure Act in 1966 was intended to implement the powers of that court `to permit all matters relating to affairs of decedents to be determined in the court settling the estate'. The Surrogate's Court Procedure Act specifies that the Surrogate's Court's general jurisdiction encompasses `all the jurisdiction conferred upon it by the constitution and all other authority and jurisdiction now or hereafter conferred upon the court by any general or special statute or provision of law, including this act.

According to EPTL section 11-3.2(a)(1), "No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent." "Subdivision (a) of CPLR 1015 provides that “If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties” and the action could therefore be continued against the personal representative of the decedent. The Appellate Division added, however, that "where the personal representative is not yet a party to the action, service of the notice of motion of substitution must be made in the manner prescribed for service of a summons under article three of the CPLR. “The procedure for revival of an action by substitution of the personal representative, far from being a mere technical formality, is rather, the recognized means by which a court obtains jurisdiction over the personal representative”, and it is therefore “necessary that the representative be served with process and accorded 'all the procedural safeguards required by due process of law' before the court may enter a binding judgment against him. Thus, service of the papers in the manner prescribed for motion papers generally will not suffice.”

CPLR 306-b provides that service of a summons and complaint shall be made within one-hundred and twenty days after the commencement of the action; however, a court can extend this period for good cause showing or in the interest of justice. In the matter of Murphy v. Hoppenstein, the Appellate Division, 1st Department held that "extensions should be liberally granted whenever the plaintiffs have been reasonably diligent in attempted service regardless of the expiration of the Statute of Limitations after filing and before service." The court went on to reject the argument that an extension of the CPLR 306-b 120 day period to make service of the summons and complaint may be granted only if no service, as opposed to improper service, is made within the 120 day period.

A Brooklyn Probate Lawyer said in Jervis v. Teachers Insurance and Annuity Association, the 1st Department found that there must be a demonstration of "good cause" to explain a failure to serve a summons and complaint to activate the provisions of CPLR 306-b, and where there has been an unacceptably protracted delay measured from the expiration of the 120 day period, the statute could not be extended in the interest of justice. Likewise, the Appellate Division, 2nd Department, in Leader v. Maroney, held that CPLR 306-b requires that a summons and complaint with notice be served upon a defendant within 120 days after the commencement of the action, and authorizes a court to extend the 120 day service period for "good cause showing" or "in the interest of justice." The Court specifically found that "in keeping with the legislative intent to liberally grant extensions in cases where, as here, the statute of limitations has expired after filing, and in view of the fact that the plaintiff has a potential meritorious cause of action and the defendants made no showing of prejudice, we find that the Supreme Court properly exercised its discretion in granting the complainant's motion for an extension of time to effect service."

Bronx Probate Lawyer it is indisputable that the named owner, who had died, remains the title owner of record to the subject premises. Nevertheless, the afore-mentioned facts ill afford any compelling rationale as to why the plaintiff made no attempt to amend the summons and complaint during the remaining CPLR 306-b period or any other effort which could be discerned as a good faith basis to extend the 120 day rule to effectuate service. However, the fact that the defendant's surviving spouse was the one served with a copy of the summons and complaint argues against any potential claim of surprise or of prejudice to the owner's estate, especially since under SCPA 1001(1)( a ), she has first preference to serve as his administratrix, and under EPTL 4-1.1 she would be entitled to all or over one-half of the intestate share of his estate. In addition, it bears to note that the defendant has not disputed a meritorious claim of injury on the complainant's part. Accordingly, this Court finds that under all of the circumstances of this case, the complainant should, in the interest of justice, be permitted to amend his summons and complaint to substitute the Estate of the owner as defendant, and be afforded thirty days to effectuate service once a personal representative has been appointed for the estate. This constitutes the decision and order of the Court.

With Stephen Bilkis & Associates, whose offices are located throughout New York, you can secure the services of its Kings County Estate Administration Attorneys, or its New York Probate Lawyers, to defend you and assist you in matters of will contest, estate litigation, and estate settlement procedures.

Plaintiff Brings an Accounting Action regarding Family Trust

February 13, 2015,

A Probate Lawyer said that records reflect that the Testatrix' will give the sum of $2,000 in trust for the benefit of the beneficiary who was entitled to the corpus and accumulated income thereof when he became 21 years of age. The will was admitted to probate in 1945 and the executrix thereunder qualified. It is undisputed that the estate was sufficient to pay all trusts and other bequests in full. After letters testamentary were issued, testator qualified as trustee for the benefit of the said beneficiary. By his objection to the trustee's account, the beneficiary asks that the trustee's estate be surcharged for the amount of the fund and income thereon. The testator asserted 'Not a single dollar of these trusts funds was ever received by me'. Testator in an affidavit, filed in this Court before his death, offered no explanation for his failure to take the fund into his possession and did not attempt to justify his failure. Relying on Farmer's Loan & Trust Co. v. Pendleton, defense assert (1) it was beneficiary's burden to establish affirmatively that the deceased trustee was negligent in not reducing the fund to his possession, and (2) his representatives upon an accounting are chargeable only for the amount found to be in their hands.

A New York Estate Lawyer said the court ruled that there are significant distinctions between the cited case and the instant matter. The Court of Appeals pointed out: 'The character of this action should be kept in mind. It is purely an action for an accounting, and nothing else. Therefore the plaintiff was entitled only to the relief appropriate to such an action. It was not an action for breach of trust.' In that case there were two trustees and it appeared that a portion of the fund in question was in the hands of the co-trustee for which the testator would not be liable unless the fund subsequently came into his hands. Further distinctions could be pointed out but these are enough. In the instant matter the basis of the claim of the beneficiary is the admitted failure of the testator to take into his possession the fund concededly available. In support of their position, testator quote this from the cited decision, supplying emphasis: 'The contestants were required to show by competent proof the amount of the estate in the hands of the decedent as executor or trustee thereof, and his representative upon an accounting was chargeable only for the amount thus found to have been in his hands.' That paragraph continues this way: 'The defendant being unable to state the account the account so far as it related to any portion of the trust fund that came into the hands of her testator, if any, the plaintiff, before it was entitled to a final judgment for any sum, was required to show not only that a portion of the fund came into the hands of the defendant's testator, but also to show the amount; and the court could properly charge the defendant only with that amount, as in no case will a trustee be held for more than he receives, if he is in no fault and has committed no breach of the trust.'

Queens Probate Lawyers said that in Bank of New York v. N. J. Title Guarantee & Trust Co., the court approved the proposition that a trustee is liable to the beneficiary if he neglects to take proper steps to redress a breach of trust committed by a predecessor fiduciary, and observed that this was too clear to require detailed argument. In Matter of Kistler's Will, it was held that, in view of the assumption of the trust duty imposed by the terms of the will, the trustee's failure to reduce the fund to possession presented a potential basis of liability in equal measure as if the trustee had performed affirmative improper acts, noting 'Nonfeasance is as potent a ground for surcharge as misfeasance.'

Long Island Probate Lawyers said it was the clear duty of the trustee to obtain possession of the fund; he was required to use care and diligence in doing this. His unexplained failure to use the necessary diligence was at his personal risk and he was liable for the resulting loss. The facts of this case show prima facie negligence on the part of the trustee for the loss sustained, and it is the duty of his representative to show that he was not negligent. The trustee's own affidavit makes no attempt to do this and his representatives have adduced no evidence of prudent action on his part. The objections to the account are sustained. The personal representatives of the trustee, in their representative capacity, are surcharged with the sum of $2,000 plus interest at savings bank rates current during the period involved compounded quarterly in the sum of $1,644.73 as computed by the Court.

Stephen Bilkis & Associates, with offices located throughout New York, can serve you with its Kings County Estate Administration Lawyers, or its New York Probate Attorneys who handle cases of will contest, estate litigation, and the likes.

Court Rules on Proceeding to Settle Executors Account

February 12, 2015,

Sources show that this is a proceeding to settle the executor's account of a Trust Company. Objections have been filed on behalf of the deceased to the said accounting. The objectant claims title to one-third (1/3) of all property received by the executor as set forth in the account, or, in the alternative objectant seeks to recover the alleged consideration given for the promise to exercise the powers in his favor. The remaining objections are to any charges being made against the property claimed by the objectant.

A Probate Lawyer said the objectant is the only child of the decedent's marriage to his first wife. At the time of his marriage, and at all times thereafter, decedent was the donee of a testamentary power of appointment in each of two trusts. The first of these powers in a general power of appointment granted to the decedent under the will of his mother. The second is a general power of appointment reserved to the decedent under an inter vivos trust indenture, made by the decedent as grantor. Sometime in 1942 the decedent and his first wife, entered into a separation agreement which provided that in consideration for the wife relinquishing all of her marital rights and claims to the decedent's property, the decedent would pay to her the sum of $450, plus $100 per month to be used for the support of the objectant until he reached the age of 21 years. The decedent further agreed to maintain irrevocably certain policies of insurance on his life with the objectant as designated beneficiary. No evidence was offered at the hearing in respect to the existence of any such life insurance. The only payment made by the decedent under the 1942 agreement was the sum of $250, paid to the wife at the time of the execution of the agreement. None of the monthly payments was made.

A New York Estate Lawyer said he decedent and the wife were divorced pursuant to a decree of the Circuit Court, Florida. Both the decedent and the wife remarried. A judgment was obtained against the decedent in the sum of $1,567.90 for unpaid monthly installments due under the 1942 agreement. Thereafter, the decedent, wife, and their respective spouses entered into an agreement in order to 'amicably settle and adjust' these differences. The 1944 agreement provided that the wife's second husband, would adopt the objectant. The decedent consented to the adoption and agreed to lend all necessary assistance to effect same. The wife agreed to promptly procure a satisfaction of the $1,567.90 judgment previously entered, and the wife and her second husband further agreed to hold the decedent safe and harmless from making any further payments of $100 per month as required by the 1942 agreement. Finally, the decedent agreed to exercise his testamentary powers of appointment irrevocably in such a manner which, in view of subsequent events, would result in the objectant receiving a one-third interest in the principal of the trusts. Simultaneously, with the execution of the 1944 agreement, decedent executed a Will providing for the exercise of the power in objectant's favor. On that very same day an order of adoption was made providing for the adoption of the objectant by the second husband.

Decedent executed a new Will, which was admitted to probate on October 2, 1968, revoking all prior Wills. In the later Will the decedent exercised the powers of appointment in favor of his estate. No provision of any kind was made for the objectant. The objectant now claims as a creditor of the estate one-third of the total amount, free of the imposition of administration expenses. In the alternative, assuming the court finds that the agreement to exercise the powers of appointment in favor of the objectant is unenforceable, the objectant seeks to recover an amount equal to the unpaid monthly support payments due under the 1942 agreement from March 1, 1942 until January 29, 1955, with interest thereon from the respective due dates. To the contrary, executor contends that the provision in the 1944 agreement purportedly binding decedent to exercise his testamentary powers of appointment in favor of the objectant is unenforceable, and, further, that the objectant has no standing to seek restitution for the invalid promise.

Nassau County Probate Lawyers said that the court ruled that, a donee of a power of appointment which is not presently exercisable, or of a postponed power which has not become exercisable, cannot contract to make an appointment. Such a contract is unenforceable and cannot be made the basis of an action for specific performance or damages. It follows that since such a contract is unenforceable by the direct parties, it may not be enforced by one who claims the status of a third-party beneficiary, and the court so holds. The cases cited by the objectant, all basically stand for the same general principle that where there is an enforceable right under an agreement, a third-party beneficiary may have standing to sue. Here, however, we are faced with a provision in the 1944 agreement which is unenforceable and not subject to an action for specific performance or damages by anyone.

A Staten Island Probate Lawyer said that the objectant cites three cases, in support of the proposition that he is entitled to maintain an action for restitution of the consideration allegedly given for the decedent's unenforceable promise to execute te testamentary powers of appointment in his favor. The court holds to the contrary. Upon the evidence presented, the court cannot make a finding that the objectant would have standing to enforce any right to the support payments provided under the 1942 agreement, and, therefore, he cannot seek restitution of same as the alleged consideration for the above promise. As a general rule, children for whose support a provision is made in a separation agreement between their parents, payable directly to a parent, are not able to enforce that portion of the agreement directly in an action against the other parent. Unless there is a showing that one spouse is under a disability of one kind or another to enforce his or her own legal rights against the other, it is the one who is the direct party to the separation agreement, and to whom payments for the support of the child are to be made, who may enforce the agreement.

Moreover an assumption that the sole consideration given by the decedent for the relinquishment of his support obligations was the unenforceable promise to execute the testamentary powers of appointment overlooks the fact that in the same agreement decedent consented to the adoption of his child by his former wife's husband. It would be pure conjecture to say that this was not such consideration as was intended to support the relinquishment of his obligations under the 1942 agreement, particularly since the order of adoption of the objectant was entered on the same day as the 1944 agreement was executed. Accordingly, the objections filed to the account on behalf of deceased are dismissed. Upon completion of the tax proceedings a decree may be entered settling the account as filed.

It is common that upon the death of a loved one, actions against the estate, such as estate administration, will contest, estate litigation and the likes, are instituted by interested parties. In such cases, consult with your legal team. Stephen Bilkis & Associates, with offices throughout New York, has its Kings County Estate Lawyers, and its New York Probate Attorneys who can help you and assist you throughout the process.

Court Hears Motion to Substitute Executor for Will

February 11, 2015,

A Probate Lawyer said this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.
The branch of the motion to substitute the executrix as plaintiff in this action is granted.

However, a New York Estate Lawyer said the branch of the motion to amend the complaint is denied. In a case, plaintiff sought to amend his complaint to include additional causes of action for assault. The Appellate Division, reversing the court below, denied the motion saying. 'Not only is there no satisfactory excuse for the failure of plaintiff previously to plead the additional assaults and to make his own affidavit in support of the motion for leave, but the delay has been inordinate, and recovery for the assaults now sought to be pleaded has been barred since June, 1950, or approximately 2 1/2 years prior to the making of the motion for leave to amend.'

A Westchester County Probate Lawyer said that similarly, here there has been an inordinate delay in making the motion, sufficient excuse for the delay is not offered and the action for wrongful death has been barred since February 16, 1960 under Section 130 of the Decedent Estate Law .

The branch of the motion to amend the bill of particulars is granted only to the extent that plaintiff may include such other hospital and medical expenses which were incurred after the date the present bill of particulars was served.

Suffolk County Probate Lawyers said n a proceeding pursuant to CPLR 7510 to confirm an arbitration award of a Rabbinical Tribunal, in which respondent Berger cross-moved to vacate the award, petitioners appeal from a judgment of the Supreme Court, Kings County (JONES, J.), dated August 8, 1980, that denied the petition and granted the cross motion on the ground that the subject of the arbitration, viz., the distribution of a decedent's estate, was not an arbitrable matter in New York State.

In another case, Petitioners are a son and the sons-in-law of the decedent. Respondent is the decedent's first-born son. Petitioners and respondent are English domiciliaries, as was decedent, who died a resident of England in September, 1977. One month before his death, the decedent wrote a letter, in Hebrew, in which he made certain dispositions of property and commanded that his son "do all that is necessary to fulfill my wishes expressed in this Will." Among the directions in the letter were that any company "or Charity Company" in which he had an interest was to come under the sole direction of his "four children" and all benefits due him were to be divided equally among the four children.

When disputes arose, an interpretation of the "will" was sought by petitioners and respondent from a Rabbinical Tribunal. The submission was executed in Brooklyn, New York, but otherwise makes no reference to New York. Indeed, it states that the decision of the tribunal shall be valid according to "Jewish Law and the Law of England."

A "Decision and Verdict" was rendered by the tribunal which states, inter alia, that "this verdict relates to all interests and properties of wherever situated, including, but not limited to." This proceeding was brought to confirm the tribunal's decision or award, evidently to obtain the compliance of the respondent. Confirmation was properly denied.

As Special Term stated, the distribution of a decedent's estate is precluded from submission to arbitration on the ground of public policy.

It is clear that in the present case the letter does indeed purport to be the last will and testament of the deceased and to provide for the distribution of his estate. That the tribunal's interpretation of the "letter" is an attempt to determine the distribution of a decedent's estate is readily discernible from the "decision and verdict." The tribunal's decision may not, therefore, be confirmed. "The probate of an instrument purporting to be the last will and testament of a deceased and the distribution of an estate cannot be the subject of arbitration and any attempt to arbitrate such issue is against public policy"

Were the arbitration not against public policy, we would dismiss the proceeding on the ground of forum non conveniens. The agreement to arbitrate, although executed in New York, states that the decision of the tribunal will be valid under "Jewish Law and the Law of England." Notably, New York is omitted. The decedent was a domiciliary of England and resident there at the time of his death. The petitioners and respondent are domiciled in England. The trust and charitable association, which disputedly own the co-respondent domestic corporations, are organized under English law.

If you have legal problems relating an estate, don’t hesitate to consul our Kings County Estate Lawyers here in Stephen Bilkis and Associates, we will provide you an advice which will solve your problems. For the probate of deceased’s last will and testament, you can consult our Kings County Probate Attorneys.

Plaintiff Brings Motion to Substitute Executor

February 10, 2015,

Probate Lawyers this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.
The branch of the motion to substitute the executrix as plaintiff in this action is granted.

However, a New York Estate Lawyer said the branch of the motion to amend the complaint is denied. In a case, plaintiff sought to amend his complaint to include additional causes of action for assault. The Appellate Division, reversing the court below, denied the motion saying. 'Not only is there no satisfactory excuse for the failure of plaintiff previously to plead the additional assaults and to make his own affidavit in support of the motion for leave, but the delay has been inordinate, and recovery for the assaults now sought to be pleaded has been barred since June, 1950, or approximately 2 1/2 years prior to the making of the motion for leave to amend.'

Similarly, Manhattan Probate Lawyers said where there has been an inordinate delay in making the motion, sufficient excuse for the delay is not offered and the action for wrongful death has been barred since February 16, 1960 under Section 130 of the Decedent Estate Law .

New York City Probate Lawyer said the branch of the motion to amend the bill of particulars is granted only to the extent that plaintiff may include such other hospital and medical expenses which were incurred after the date the present bill of particulars was served.

In a proceeding pursuant to CPLR 7510 to confirm an arbitration award of a Rabbinical Tribunal, in which respondent Berger cross-moved to vacate the award, petitioners appeal from a judgment of the Supreme Court, Kings County (JONES, J.), dated August 8, 1980, that denied the petition and granted the cross motion on the ground that the subject of the arbitration, viz., the distribution of a decedent's estate, was not an arbitrable matter in New York State.
In another case, Petitioners are a son and the sons-in-law of the decedent. Respondent is the decedent's first-born son. Petitioners and respondent are English domiciliaries, as was decedent, who died a resident of England in September, 1977. One month before his death, the decedent wrote a letter, in Hebrew, in which he made certain dispositions of property and commanded that his son "do all that is necessary to fulfill my wishes expressed in this Will." Among the directions in the letter were that any company "or Charity Company" in which he had an interest was to come under the sole direction of his "four children" and all benefits due him were to be divided equally among the four children.

When disputes arose, an interpretation of the "will" was sought by petitioners and respondent from a Rabbinical Tribunal. The submission was executed in Brooklyn, New York, but otherwise makes no reference to New York. Indeed, it states that the decision of the tribunal shall be valid according to "Jewish Law and the Law of England."

A "Decision and Verdict" was rendered by the tribunal which states, inter alia, that "this verdict relates to all interests and properties of wherever situated, including, but not limited to." This proceeding was brought to confirm the tribunal's decision or award, evidently to obtain the compliance of the respondent. Confirmation was properly denied.

As Special Term stated, the distribution of a decedent's estate is precluded from submission to arbitration on the ground of public policy.

It is clear that in the present case the letter does indeed purport to be the last will and testament of the deceased and to provide for the distribution of his estate. That the tribunal's interpretation of the "letter" is an attempt to determine the distribution of a decedent's estate is readily discernible from the "decision and verdict." The tribunal's decision may not, therefore, be confirmed. "The probate of an instrument purporting to be the last will and testament of a deceased and the distribution of an estate cannot be the subject of arbitration and any attempt to arbitrate such issue is against public policy"

Were the arbitration not against public policy, we would dismiss the proceeding on the ground of forum non conveniens. The agreement to arbitrate, although executed in New York, states that the decision of the tribunal will be valid under "Jewish Law and the Law of England." Notably, New York is omitted. The decedent was a domiciliary of England and resident there at the time of his death. The petitioners and respondent are domiciled in England. The trust and charitable association, which disputedly own the co-respondent domestic corporations, are organized under English law.

If you have legal problems relating an estate, don’t hesitate to consul our Kings County Estate Lawyers here in Stephen Bilkis and Associates, we will provide you an advice which will solve your problems. For the probate of deceased’s last will and testament, you can consult our Kings County Probate Attorneys.

Plaintiff Brings Declaratory Judgment

February 9, 2015,

A Probate Lawyer said in this action for a declaratory judgment in which the defendants have counterclaimed for judgment declaring the rights of the parties as they claim them to be, the latter have moved for summary judgment as prayed for in their counterclaim. The plaintiffs, in accord with the movants' contention that no triable issues of fact are presented, oppose the motion solely in so far as the declaration of rights sought by the defendants is concerned and seek summary judgment as prayed for in their complaint.

A Kings County Probate lawyer said that the plaintiffs' testatrix died a resident of this County on August 5, 1959. Her Last Will and Testament dated April 23, 1959, was duly admitted to probate in the Surrogate's Court, Queens County, on October 13, 1959, and letters testamentary were on that day duly issued to the plaintiffs, who have qualified and are acting as such at this time.
During the lifetime of the testatrix and on the date of her death, she was the owner of 600 shares of the capital stock of the defendant store corporation and 51 shares of the capital stock of the defendant and realty corporation. By paragraph Fourteenth of her will, the plaintiffs' testatrix bequeathed 350 shares of her store corporation stock to the defendant and 250 shares thereof to the defendant, to be theirs absolutely and forever.

A New York Estate Lawyer said paragraph Fifteenth of her will, she bequeathed 39 shares of her realty Corp. stock to said defendant and 12 shares thereof to the other, likewise to be theirs absolutely and forever. By paragraph Eighteenth 'all Federal, State or other inheritance, estate, transfer or succession taxes which may be imposed upon or measured by the property that passes by paragraph 'Fourteenth' and paragraph 'Fifteenth' under this Will' were charged against the same and the executors were directed to deduct from the share or interest of each beneficiary 'the proportionate amount needed to pay any and all such taxes.'

On June 15, 1953, the testatrix, individually and as executrix under the Last Will and Testament of her deceased husband, entered into a stockholders' agreement with the other five stockholders which recited that 600 shares of the capital stock of the defendant store corporation, were issued to her. Another, identical stockholders' agreement executed by her individually on June 15, 1953, with such stockholders, recited that 51 shares of the common no par value stock of the defendant Realty Corp. were issued to her. Said agreements provided, in pertinent part, that upon the death of any stockholder, the surviving stockholders, parties to said agreements, would have the option of purchasing in proportionate amounts the shares of the deceased stockholder of Store, Inc., at the par value thereof ($100 per share) and of the Realty Corp. stock at the 'fixed value thereof of $100.00 a share'.

Brooklyn Probate Lawyers said that on November 2, 1959, all of the individual defendants exercised their options under said stockholders' agreements and in proportionate amounts paid to the plaintiffs the sum of $65.100, for which checks totaling said sum were receipted that day by the plaintiff as co-executor. On November 5, 1959, these checks were certified at the request of the plaintiffs by the bank, Citizens Branch, upon which they were drawn. To date, however, these checks have not been presented for collection; they are still held by the plaintiffs.

Bronx Probate Lawyers said that an Agreement dated February 10, 1960, executed by the plaintiffs and the moving defendants, to be in effect until the completion of the final Federal and State Estate Tax audits and the payment of all State and Federal Estate taxes apportioned to the stock in the two corporations in the Estate of the deceased, the receipt of the proportionate number of the decedent's 651 shares of stock purchased by the four individual defendants, pursuant to the option exercised by them under the stockholders' agreements, was acknowledged.

The plaintiffs, on the other hand, agreed not to withhold unreasonably their consent but they could demand a surety bond to the estate not to exceed $25,000, if a sale is to take place, 'to insure payment of Federal and State taxes apportioned to the Store Inc., and Realty Corp., stock.' 'The turnover of the stock' to the four individual defendants was stated to have been made 'without prejudice and with the consent and at the request of the defendants.'
The clear and unambiguous language of the will evidences the intent of the testatrix to bequeath the 651 shares of stock in the corporate defendants to the two moving parties as specific gifts. Accordingly, the bequest operated as a conveyance to the donees as of the date of the death of the testatrix. The plaintiffs, however, could have reduced such shares to their possession and held them until it was apparent that they were 'not necessary to use for the payment of debts and the expenses of administration' for at least the normal period of administration following the issuance of letters, which at present is seven months or six, if notice to creditors is published. Upon the completion of the administration of the estate, the title of the legatees to their specific gifts would have related back to August 5, 1959, the date of death of the testatrix.

Brooklyn Probate Lawyers said that even if the bequeathed shares of stocks had been delivered to the moving defendants 'without formal administration' they would have been charged 'with the value to the extent necessary to make good to creditors. When administration is necessary solely to protect creditors, the administration stops when the creditors are protected.'

The plaintiffs, however, did not 'assent to the title' of the moving defendants in the shares of stock owned by their testatrix at the time of her death and bequeathed by her as aforesaid. These shares were impaired by the stockholders' agreements, which made them subject to the option to purchase by the individual defendants upon the terms and conditions and within the time provided by such agreements. These options were exercised on November 2, 1959, following the issuance of letters testamentary on October 13, 1959, and checks aggregating $65,100, representing the purchase price fixed at $100 per share, were receipted by the plaintiffs by a writing dated November 2, 1959.

The fact that the checks were not presented for payment and are still in the plaintiffs' possession is not material to the issues of law here presented since it was the plaintiffs who caused them to be certified. Such certification was equivalent to an acceptance, the drawers and all endorsers, if any, being thereby discharged from liability thereon.

'The certification of a check by the bank is equivalent to payment. When the holder of a check sees fit, instead of receiving the money, to take the obligation of the bank for payment, the transaction is of the same effect as if he drew the money and then bought the bank's obligation with it.'

The plaintiffs concede in their brief that the shares of stock here involved and owned by the decedent at the time of her death were specifically bequeathed to the moving defendants by her will executed on April 23, 1959; that 'There is no question that these Stockholders Option Agreements are valid, and were signed by the Testatrix'; and that she 'was aware of these Agreements subsequent to June 15, 1953, and as recently as March 19, 1957, when another of the stockholders, waived her rights under the said agreements, and elected not to purchase' the shares of stock in the corporate defendants 'owned at the time of his death.' They urge, however, that 'upon pure theory of equity', the $65,100 paid on the exercise of the aforesaid stockholders' option agreements 'should become part of the Residuary Estate' and that it 'would be unfair and inequitable to permit the moving defendants to 'eat their cake and have it too'.

But that would have been the precise situation had not the option agreements been exercised. The $65,100 consideration therefor would then not have been paid and the decedent's stock, under the specific bequests in her will, would have been held by the plaintiffs during the period of administration until it was apparent that it was not necessary to use it for the payment of debts and expenses of administration, at which time the stock would have been turned over to the legatees whose title would have related back to the date of death. The interest of the moving defendants under the will of their benefactress was thus 'qualified' whether it was in kind, i. e., the shares themselves, or the price for which they were substituted by reason of the exercise of the subsisting option agreements to which such shares were subject.

“Testator's stock was in existence at his death, and the trustees took title to it subject to the infirmity of the agreement, Decedent Estate Law, § 37, and were, likewise, entitled to take advantage of its benefits--the sale price, which equity cannot deny to them.

The alteration in the form of the trust asset which resulted from the sale of the stocks was not a revocation of the bequest of such property, Decedent Estate Law, § 39, as the interest of income beneficiaries and remaindermen of the trust are capable of fixation; the corpus of the trust, upon its termination, being payable to the remaindermen upon the same basis as the purchase price paid for the stock.'

So too, in the case at bar, the alteration of the specific gifts made to the moving defendants from stock to cash represented by the price paid pursuant to the options under the stockholders' agreements to which such stock was subject upon the death of its owner, the testatrix herein, was not a revocation of the bequest of such property, nor did not moving defendants otherwise waive or renounce their rights or legacies under the will. The court finds that the price paid to the plaintiffs for the decedent's stock, totalling $65,100, stands in place thereof to be distributed to the moving defendants under paragraphs Fourteenth and Fifteenth of the will in the proportion in which the stock was therein bequeathed, subject, however, to the payment of taxes as provided in paragraph Eighteenth of said will.

The contentions by the plaintiffs that it is conceivable that the tax authorities might place a value upon the stock bequeathed under the will in excess of the option price paid therefor, in which event the moving defendants would 'unquestionably renounce their specific legacies since it would not pay them to make claim to the $65,100.00 if the taxes were more than that sum' and that the 'converse of the proposition is not quite so clear' are hypothetical and cannot be the subject of judicial pronouncement, certainly not in the present posture of this litigation absent the facts required, facts which at best are at this time uncertain if not altogether conjectural. All that this court can and does presently decide is embraced in the findings and conclusions herein set forth.

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