Petitioner Alleges Decedent's Guardian Failed to File Certain Reports

March 30, 2015,

A Probate Lawyer said that, in a probate proceeding in which the administrator, in effect, petitioned pursuant to SCPA 1809 to determine the validity of certain claims against the estate of the decedent, also known as the petitioner appeals from (1) an order of the Surrogate's Court, Kings County, dated April 27, 2009, which, in effect, denied that branch of the petition which was to invalidate the claim of the claimant, and directed that claimant be reimbursed in the sum of $4,474 for payment of the decedent's funeral expenses, and (2) an order of the same court dated May 13, 2009, which denied her motion to vacate the order dated April 27, 2009.
A Kings Will Contest Lawyer said that in another case is (1) from so much of an order of the Surrogate's Court, Kings County, entered July 8, 1965, as denied his cross motion for leave to take the further oral deposition of two persons as witnesses pursuant to statute (CPLR 3101, subd. [a], par. 4; 3111); and (2) from an order of said court, entered September 2, 1965, upon re-argument, which adhered to the original decision. Order entered September 2, 1965, affirmed with a separate bill of $10 costs and disbursements to the respondent and to the Special Guardian, each payable out of the estate. No opinion. Appeal from order, entered July 8, 1965, dismissed, without costs. The appeal was untimely taken. Appellant admitted receiving notice of entry of said order on July 13, 1965, yet his notice of appeal therefrom is dated September 9, 1965, clearly beyond the statutory time (CPLR, § 5513, subd. [a]). In any event, said order was superseded by the later order granting re-argument

A New York Estate Lawyer said the Surrogate's Court properly determined that the claim against the estate by the claimant for reimbursement of the decedent's funeral expenses, which expenses the petitioner conceded were paid by the claimant, was valid (see SCPA 1809, 1811). Contrary to the petitioner's contention, the Surrogate's Court did not err in declining to consider, in the instant proceeding, the petitioner's allegation that the claimant, who had been appointed the decedent's guardian pursuant to Mental Hygiene Law article 81 prior to the decedent's death, had failed to file certain required reports and accountings, and otherwise breached her fiduciary duty as the decedent's guardian (see Mental Hygiene Law § 81.44[g]; see also SCPA 2103).
A Nassau County Probate Lawyer said the Surrogate's Court properly denied the petitioner's motion to vacate the order dated April 27, 2009, as the petitioner failed to demonstrate the existence of any valid grounds for vacatur (see CPLR 5015[a]).

Accordingly, the court held that the orders are affirmed, without costs or disbursements.
If you are facing a similar case, you will need the legal advice of a Kings Estate Litigation Attorney and Kings Estate Attorney at Stephen Bilkis and Associates.

Testatrix Intended to Donate Entire Estate to Charity

March 29, 2015,

A Probate Lawyer said that, this is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (229 App. Div. 809, 242 N. Y. S. 621), entered May 22, 1930, modifying and affirming as modified a decree of the Kings County Surrogate's Court admitting to probate the last will and testament of Catherine C. Devine, deceased, so as to provide that costs of the trial be awarded to the contestant, who was named as executor in two other wills, under the provisions of section 278 of the Surrogate's Court Act.

A Westchester County Probate Lawyer said that, in another case a proceeding was brought to probate and construe will. The fourteenth article of the will gave the residue of the estate of the testatrix to named executrix for any and all charities that she in her uncontrolled discretion might deem it best and fitting. In preceding articles of the will the testatrix made specific bequests to persons and organizations for various religious and charitable purposes. In the fifteenth article she stated that she made no provision in the will for any relative 'for reasons best known to myself.' The executrix died on February 26, 1961, and the testatrix died on October 26, 1962.

Suffolk County Probate Lawyers said the Surrogate's Court, Kings County, construed the fourteenth article and held that will clearly disclosed that sole intention of testatrix was to devote her entire estate to charitable and religious purposes, and that fact that named executrix predeceased testatrix did not affect validity of gifts for benefit of ultimate charitable beneficiaries, and that the discretion reposed in the named executrix was not such an essential part of the testamentary plan that her death would thwart intended charitable purposes of testatrix, and that residuary estate should be equally distributed among beneficiaries designated in other articles of the will.

A New York Estate Lawyer said the Appellate Division affirmed the decree, insofar as appealed from. Appeal was taken to the Court of Appeals by permission of the Court of Appeals

Every will must be subject to probate, if you want to contest the provisions of a will, you will need the legal representation of a Kings Estate Litigation Attorney and Kings Will Contest Attorney at Stephen Bilkis and Associates.

Court Interprets Will Provisions

March 28, 2015,

A Probate Lawyers said that, on May 29, 1963, decedent executed his Will, which through paragraph SIXTH reads as follows: 'I, of the City of Syracuse, County of Onondaga and State of New York, do make, publish and declare this to be my last Will and Testament, hereby revoking all wills and codicils at any time heretofore made by me. 'FIRST: I give and bequeath to my wife if she survives me, all household furniture and furnishings and other household goods and all automobiles owned by me at the time of my death. 'SECOND: I give and bequeath to my son if he survives me, all clothing, jewelry and personal effects owned by me at the time of my death. 'THIRD: I give and bequeath to my son if he survives me, all stock and any other interest in Incorporated owned by me at the time of my death. 'FOURTH: If my wife survives me, I direct my executors to set aside a portion of my estate equal in value to (a) one-half of the value of my adjusted gross estate as finally determined for Federal estate tax purposes, less (b) the value of all interests in property which pass or have passed to my wife, but only to the extent that such interests are for the purposes of the Federal estate tax included in determining my gross estate and allowed as a marital deduction.

'I give, devise and bequeath the said portion of my estate to my trustees, IN TRUST, NEVERTHELESS, to hold, invest and reinvest the same, to collect the income therefrom and to pay to my said wife all of the net income therefrom during her life in quarterly installments and, in addition, to pay to my said wife, at any time and from time to time, such part or parts of the principal of this trust as my corporate trustee shall deem necessary for the comfortable maintenance, support and welfare of my said wife. Upon the death of my said wife, the then principal of this trust, if any, is to be paid out and distributed as my wife may appoint by her last Will and Testament (specifically referring to this power of appointment) outright or otherwise, in favor of her estate or any appointee or appointees. If said power of appointment is for any reason not validly exercised by my wife, in whole or in part, then upon her death such portion or all of the principal of the trust, or such interests or estates therein as shall not have been validly appointed by her shall be transferred, conveyed, paid over and distributed by my trustees to my daughter Shirley Haley Hollis if she is then surviving or, if she is not then surviving, to her then surviving descendants per stirpes, or, if none, to my then surviving descendants, per stirpes.

A New York Estate Lawyer said "Notwithstanding anything to the contrary contained in this Will, I direct (a) that in establishing this trust for my wife, there shall not be allocated to the trust any property or the proceeds of any property which would not qualify for the marital deduction allowable in determining the Federal estate tax on my estate or any property or the proceeds of any property includible in my gross estate for Federal estate tax purposes and also subject by reason of my death to any inheritance tax, transfer tax, estate tax or other death duty in any foreign country or state, province or other political subdivision thereof; (b) that the trustees of this trust shall not retain beyond a reasonable time any property which may at any time be or become unproductive nor shall they invest in unproductive property, and (c) that none of the powers granted to the trustees by this Will shall be exercised in such a manner as to disqualify this trust or any part thereof from the marital deduction allowable in determining the Federal estate tax on my estate.

'FIFTH: If my wife survives me, all the rest, residue and remainder of my property and estate, both real and personal, of whatsoever kind and wheresoever situated, of which I shall die seized or possessed or of which I shall be entitled to dispose at the time of my death, I give, devise and bequeath to my trustees hereinafter named, IN TRUST, NEVERTHELESS, to hold, invest and reinvest the same, to collect the income therefrom and to accumulate the net income therefrom during her lifetime. My trustees shall pay to or apply to the benefit of my said wife, at any time and from time to time, such part or parts of such accumulated income as my corporate trustee, taking into account her income from all sources, shall in its sole judgment and discretion deem necessary or suitable for the comfortable maintenance, support and welfare of my said wife. The income accumulated under the provisions of this paragraph of my Will is to be exhausted before any payments are to be made from the principal of the trust created under paragraph 'FOURTH' of this Will. In addition, my trustees are to pay to or apply to the benefit of my said wife, at any time and from time to time, such part or parts of the principal of this trust as my corporate trustee shall, in its sole judgment and discretion, deem necessary or suitable for the comfortable maintenance, support and welfare of my said wife, except that no part of the principal of the trust created under this paragraph 'FIFTH' of my Will shall be paid to or applied to the benefit of my said wife until the entire principal of the trust created under paragraph 'FOURTH' of my Will shall have been exhausted. It is my intention that my said wife have available an annual income from all sources approximately equivalent in purchasing power to the annual sum of Six Thousand Dollars as of the time of execution of this Will and I wish my said corporate trustee to consider this expression of intention as a guide in determining what payments to make from the income and principal of the trusts to be created under this Will, although the decisions of my said corporate trustee as to payments of income and principal shall be final. If in the opinion of my corporate trustee the invasion hereinafter provided for is consistent with the anticipated needs of my said wife, I further authorize my trustees to pay or to apply for the benefit of any one or more of the following named persons, viz: my wife's sister, my aunt, my brother's wife my daughter and my son at any time and from time to time, such part or parts of the principal of this trust as my corporate trustee shall, in its sole judgment and discretion, deem desirable for their maintenance, support and welfare. Upon the death of my said wife, I direct my trustees to pay over and distribute the then principal of this trust together with any accumulated and accrued income to my son if he is then surviving or, if he is not then surviving, to his then surviving descendants, per stirpes, or, if none, to my daughter if she is then surviving, or, if she is not then surviving, to her then surviving descendants, per stirpes. 'SIXTH: If my wife Harriet H. Haley does not survive me, I give, devise and bequeath all the rest, residue and remainder of my property and estate, both real and personal, of whatsoever kind and wheresoever situated, of which I shall die seized or possessed or of which I shall be entitled to dispose at the time of my death, to my descendants surviving me, per stirpes.'

Manhattan Probate Lawyers said that, the remainder of the Will has no bearing on the issues in this proceeding. On June 8, 1966, decedent and his wife, entered into a written separation agreement, in and by the terms of which each party waived and relinquished their rights, under law, to share in the estate of the other, to elect against the last Will and Testament of the other, but not to waive any voluntary testamentary provision which might be made in his or her favor by the other.

New York City Probate Lawyers said that, on June 29, 1966, decedent and his wife were divorced. On August 22, 1966, decedent died without having made a new Will or Codicil, and his Will referred to above was thereafter admitted to probate. He was survived by his son, and his daughter. At the time of decedent's death, the son had no children, and the daughter had two children, both infants. The decedent’s aunt and his brother’s wife named in paragraph 'FIFTH' of the Will, also survived decedent.

A Kings Estate Litigation Lawyer said that, on February 27, 1967, on stipulation of the interested parties, based on Decedent Estate Law Sec. 40 a decree was entered by this Court, holding that the provisions of the separation agreement of June 8, 1966 were inconsistent with the bequests to the decedent’s wife under paragraphs ONE, FOUR and FIVE of the Will, and that by entering into the separation agreement decedent duly revoked the bequests to and for the benefit of the wife under these provisions of the Will.

In this proceeding for construction of decedent's Will, it is incumbent on the Court to determine the proper and lawful distribution of his estate under his Will, in light of the circumstances outlined above. Counsel for the decedent’s son argue that the trust under paragraph FOURTH is conditional upon their being (a) a surviving spouse and (b) property which would qualify for the marital deduction, and that, since the trust under article FOURTH was to be funded in an amount equal to one-half testator's adjusted gross estate less the value of 'all interests in property which pass or have passed' to testator's wife, conceivably assets passing directly to the wife, for example, as joint tenants, might exceed one-half testator's adjusted gross estate, in which case nothing would be held in trust under article FOURTH. Consequently counsel for the son argue that the entire remainder of the estate of testator should pass into the trust established under article FIFTH, and that the trust be administered according to the terms of article FIFTH, without acceleration.

The guardian ad litem for infant contingent remainder men argues that the separation agreement had the effect of partially revoking the will that since testator died not married the court is presented with the same situation as was contemplated by article SIXTH in order to give effect to testator's intent and because failed gifts pass under the residuary clause.
The effect of the argument of counsel for the son is the ultimate disinheritance of the daughter, Shirley Haley Hollis, except for a possible invasion of principal on her behalf by the corporate trustee as described in article FIFTH, despite an indication in articles FOURTH and FIFTH and a positive declaration in article SIXTH that the testator desired to treat his issue equally. It is true enough that at least in one sense the trust bequests under both articles FOURTH and FIFTH are conditional bequests: 'if my wife survives me.' The fact that she was not testator's lawful wife at the time of his death, however, should have no bearing on the question of whether she is a proper measuring life, especially since her identity is uncontradicted; nor should that fact of itself be sufficient grounds to permit the court the freedom to totally ignore the alternative dispositive provisions of article FOURTH and pass the entire residue to the beneficiaries named in article FIFTH. The court's obligation is to look at the four corners of testator's will and, by considering the language used in the will, read as a whole in light of the circumstances which existed at the time of the execution of the will, to ascertain testator's intention.

The will specifically states that if the individual Harriet H. Haley survives testator, the executors are to fund the article FOURTH trust in an amount equal (a) to one-half of testator's adjusted gross estate as finally determined for Federal Estate Tax purposes, less '(b) the value of all interests in property which pass or have passed to my wife, But only to the extent that such interests are for the purpose of the Federal estate tax included in my gross estate and allowed as a marital deduction'. Since no marital deduction would be allowable, even if Harriet H. Haley were to take under the will, the amount to be allocated to the trust under clause (a) will not be reduced in any way. The clause found in the first complete paragraph of page two of testator's will which likewise restricts the funding of the article FOURTH trust is inapplicable because it is modified by the phrase 'in establishing this trust for my wife.', it being an obvious fact that under the conditions described in the beginning portions of this opinion no trust is being established for testator's wife.

This conclusion leads to a second question: can the principal of the trusts as funded under the provisions of article FOURTH and FIFTH be accelerated and immediately distributed, since the primary beneficiary has agreed that she is to take nothing under her ex-husband's will? The answer to this question lies in an examination of testator's intention as expressed in the will; as a general rule 'succeeding interests are accelarated except when (a) the terms and circumstances of the limitation manifest a contrary intent.' As to the interest created in favor of the named daughter in article FOURTH, it is quite clear that as an estate vested subject to complete defeasance, the daughter's interest is accelerable unless the language of the will indicates an intention that her interest remain defeasible until the death of the measuring life. It is apparent that testator's purposes in article FOURTH were two-fold: to create a fund which would not only provide the widow with a satisfactory income and with a corpus sufficient to qualify for the benefits of the marital deduction, with the unavoidable power of appointment therein entailed, but also, in the event and to the extent that neither the power of invasion nor the power of appointment therein granted were exercised, to provide a remainder interest in favor of his named daughter, if then surviving, or to her then surviving descendants. Since the first purpose has been defeated, there seems to be no reason for continuing the corpus of article FOURTH in trust, and, as a result this court holds that the trust created by article FOURTH is accelerated and the corpus is payable to the daughter absolutely, unrestricted by any of the limitations of the trust.

The trust created under the provisions of article FIFTH in favor of the son, Jr., does not present a question which is so easy of solution, however. This is so because in addition to an intention to provide a suitable income for the widow for her life, taking into account the income received by her from the income of the trust created in article FOURTH and whatever other income the widow might have, and an intention to bequeath the principal of the trust created by article FIFTH to the testator's named son or to his then surviving descendants if he failed to survive the widow, upon the expiration of the life estate, testator also declared it to be his intention that during the continuance of the widow's life estate the trustees were authorized to exercise a power of invasion from trust principal if the widow was sufficiently provided for in favor of certain named individuals, two of whom are testator's son and daughter, in amounts to be determined by the corporate trustee in its sole discretion. From this last fact it can be argued that there can be no acceleration where there is an effectively created intervening interest between the renounced interest and the remainder interest.

However, it is noteworthy fist, that the power of invasion for the benefit of these individuals was contingent on there being an excess of principal after the payments to the widow as specified in the will were made, and second that this power of invasion was exercisable by the trustees only so long as the widow continued to receive income and principal payments.

The corpus of the trust created by article FIFTH is therefore accelerated and the corpus of said trust is payable to the son absolutely, unrestricted by any of the limitations of the trust.
If you want to contest the validity of a will, seek the help of a Kings Will Contest Attorney and Kings Estate Litigation Attorney at Stephen Bilkis and Associates.

Are Inter Vivos Dispositions to the Widow Properly Includible in Decedent's Estate

March 27, 2015,

A Probate Lawyer said that, this is a proceeding by the executors pursuant to SCPA 1421 to determine the validity and effect of an election by the decedent's surviving spouse. The decedent executed a will on February 25, 1965 which has been admitted to probate in this court. The decedent was unmarried at the time of execution. He married respondent, his surviving spouse, on October 10, 1967. Subsequent to this marriage decedent made certain Inter vivos dispositions to the surviving spouse. The respondent is the joint and surviving owner of the jointly owned property having a value of $71,444.68.

The issue presented is whether the Inter vivos dispositions to the widow are properly includible in the estate of the decedent for the purpose of computing the widow's share and are the dispositions for the benefit of the widow to be offset against her share as computed. EPTL 5--1.1(c)(1) provides: 'Where, after August thirty-first, nineteen hundred sixty-six, a testator executes a will disposing of his entire estate, and is survived by a spouse, a personal right of election is given to the surviving spouse.' Clause (A) includes the testamentary dispositions enumerated in paragraph (1) of subdivision (b) in the computation of the elective share.
The cases have held that where a will is involved the surviving spouse has a right of election against testamentary substitutes pursuant to EPTL 5--1.1(c) provided: (1) the will was executed after August 31, 1966; (2) the transactions were effected during the marriage; and (3) the transactions were effected after August 31, 1966. All three conditions must be present. Unless present, the Inter vivos transaction is an 'exempt' transaction and not a testamentary substitute. There is no right to elect against exempt transactions. In the instant case two of the conditions have been satisfied but the will was executed prior to August 31, 1966.

A New York Estate Lawyer said the respondent contends that EPTL 5--1.1(c) is not applicable since the decedent's will was executed prior to August 31, 1966. Petitioners maintain that the requirement that the will must have been executed after August 31, 1966 was not intended by the Legislature to be applicable where the decedent was unmarried at the time of the execution of the will and where his marriage took place, as here, after that date.

Brooklyn Probate Lawyers said the petitioners contend that there is an analogy to be found in EPTL 5--1.3 providing for the revocatory effect of a marriage after the execution of a will. They acknowledge that that section is limited in its application to wills executed prior to September 1, 1930 but argue that a marriage after August 31, 1966 should similarly have the effect upon the previously executed will of an unmarried person so as to make applicable the provisions of EPTL 5--1.1(b)(c). The argument is that the will should be considered as if it were executed at the time of the marriage, in this case October 10, 1967. The executors further acknowledge that the reason the language of EPTL 5--1.1(c) is prospective is because of the legislative concern for the impairment of vested property rights but argue that the determination which they seek herein will not violate any existing property rights nor render the statute unconstitutional.
Great stress is placed by the executors upon the legislative intent behind the enactment of the statute. Generally, in the construction of statutes the legislative intent is to be sought and ascertained from the words and language used. New language cannot be implied into a statute to give it a meaning not otherwise found therein. The court is obliged to construe statutory language literally where it expresses the evident intent of the Legislature and the court cannot disregard the plain words of a statute even in favor of what may be termed an equitable construction, in order to extend it to some supposed policy not included in the act. Since the statute under consideration gives the right of election to a surviving spouse it obviously requires that the spouse must have been married to decedent and also that the spouse is not disqualified under EPTL 5--1.2. The court is of the opinion, however, that there is no express or implied requirement in the statute, that the surviving spouse must have been married to decedent at the time the will was executed.. In Choresh the decedent executed his will on July 16, 1960 leaving his entire estate to his first wife, who predeceased him. During the marriage of decedent and his second wife, the surviving spouse, and subsequent to August 31, 1966, the decedent effected certain transactions benefitting the surviving spouse. The Inter vivos dispositions were Totten trusts and exceeded in value the elective share of the surviving spouse. The executor, as in the instant case, contended that these transactions effected after August 31, 1966 were testamentary substitutes and that they should have been deducted from the elective share. Surrogate McGrath held that since the will was executed prior to August 31, 1966 the testamentary substitutes were not to be included in the computations of the elective share but that the surviving spouse was entitled to take her share against the assets passing under the decedent's will.

Bronx Probate Lawyers said that while it appears from the decision that the decedent was married to the first wife at the time of execution of the will prior to August 31, 1966 it is clear that he was not married to the surviving spouse at that time. Although the court therein did not discuss the issue the facts are analogous to this case in that the will was executed prior to August 31, 1966 at a time when the decedent was not married to the surviving spouse.

The statute and the intent of the Legislature are clear. If the will was executed on or before August 31, 1966 no Inter vivos transaction before or after that date is a testamentary substitute. It is not the date of the marriage that matters but it is the date of the execution of the will. The court may not under the guise of interpretation read into the statute an exception which is not present therein. If the court were to agree with the interpretation urged by the executors it would in effect be rewriting the statute to provide that not only may a surviving spouse elect against testamentary statutes where the will was executed after August 31, 1966 but also that such right exists where the will was executed on or prior to that date by an unmarried testator. This the court may not do.

The executors' argument that a determination including the Inter vivos dispositions as testamentary substitutes in determining the right of election would not impair vested rights does not necessarily compel any conclusion as to legislative intent. The suggestion was made to the Commission on The Law of Estates that irrespective of the date of execution of the will, the right to elect should be determined solely by the effective date of the Inter vivos transaction. To this the Commission replied: 'While the enactment of such a statute would be much easier to draft such enactment would seriously interfere with property settlements which have now been made in good faith and in many cases might be unconstitutional if rights which have now vested in recipients of testamentary provisions were divested by the statute.' Surrogate however, recently pointed out that: 'We may disregard the 'unconstitutional' comment. What the Commission was saying is that it would insist on exempting all Inter vivos transactions on or before August 31, 1966 and also all such transactions irrespective of date where the will was executed on or before August 31, 1966. It implied 'What has been done is done!' We look only to future transactions made by testators under future wills. In time there will be no wills and no transactions executed prior to August 31, 1966 just as there are no longer many wills executed prior to September 1, 1930 (Decedent Estate Law § 18 now EPTL 5--1.1(a)(1)). The Commission went far beyond constitutional or statutory limitations when it provided that a testator who executed a will on or before August 31, 1966 was free thereafter to effect Inter vivos transactions long into the future while that will remained unrevoked.'

Lastly, the court is of the opinion that the executors' analogy to EPTL 5--1.3 is misplaced. The purpose behind that section was to make some provision for the protection of a surviving spouse where the will was executed prior to 1930 for the reason that as to such wills the surviving spouse has no right of election. No such purpose to protect the widow is present in this situation since here the widow has a right of election under 5--1.1(a). In any event even if such a policy of protection is desirable it may not be effected by the court since the court can only interpret and cannot legislate.

Accordingly, the court determines that respondent as surviving spouse is entitled under EPTL 5--1.1(a) to elect to take her share against the assets passing under the will of decedent and the computation of her elective share does not include the testamentary substitutes specified in the petition nor may they be set off against her share as computed.

If you want to question the partition in the estate, seek the legal assistance of a Kings Estate Administration Attorney and Kings Estate Litigation Attorney at Stephen Bilkis and Associates.

Petitioner Brings Suit for Breach of Fiduciary Duty and Legal Malpractice

March 26, 2015,

A Probate Lawyer said that, in an action, inter alia, to recover damages for breach of fiduciary duty and legal malpractice, the defendant appeals from an order of the Supreme Court, Kings County, dated June 21, 2005, which denied his motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint for failure to state a cause of action and on the ground that a defense was founded upon documentary evidence.

A Kings Probate Lawyer said that, the plaintiff and her young daughter were beneficiaries of the estate of the plaintiff's mother. The defendant, an attorney, was retained by the plaintiff's brother, as the executor of the estate, to probate the will and collect the assets of the estate. In November 2004 the plaintiff commenced this action to recover damages for breach of fiduciary duty, legal malpractice, and negligent misrepresentation. In a vague and mostly conclusory amended complaint, the plaintiff asserted three causes of action against the defendant. The first cause of action alleged that in December 2001 the defendant, acting as a fiduciary, was negligent in securing the sum of $297,000, which was intended for the plaintiff and her child, by not giving the money to the plaintiff. The second cause of action alleged that the defendant "negligently represented to the plaintiff that he was her attorney" and that he negligently "drafted a will, deed, and several other documents" to the plaintiff's detriment. The third cause of action did not recite any theory of recovery but simply sought an award of an attorney's fee. The amended complaint also requested punitive damages. The defendant moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) and (7) for failure to state a cause of action and on the ground that a defense was founded upon documentary evidence. The Supreme Court erred in denying the motion.

The issue in this case is whether plaintiff is entitled to recover damages for breach of fiduciary duty, legal malpractice, and negligent misrepresentation.

A New York Estate Lawyer said in a motion to dismiss pursuant to CPLR 3211, the amended complaint is to be afforded a liberal construction. The facts as alleged in the amended complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory. "In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint". "The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one". "Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law".

Queens Probate Lawyers said the documentary proof submitted by the defendant conclusively established, as a matter of law, that he never breached his fiduciary duties to plaintiff in allegedly failing to turn the sum of $297,000 over to the plaintiff. The plaintiff also failed to allege specific facts from which the existence of an attorney-client relationship or privity between the parties could be inferred. Also, the plaintiff's bare assertion that the defendant negligently represented that he was her attorney and was acting in her best interests was legally insufficient to state a cause of action for negligent misrepresentation or fraud. Further, the plaintiff did not allege that the defendant had anything to do with the decedent's execution of the allegedly fraudulent deed and will or how she was injured or damaged as a result of this allegedly fraudulent conduct. Lastly, the court should have dismissed the claims for punitive damages and an attorney's fee for failure to state a cause of action.

Accordingly, Long Island Probate Lawyers said the court held that the order is reversed, on the law, with costs, and the motion is granted.

If you have money claims against the estate, seek the legal advice of a Kings Estate Litigation Attorney and Kings Estate Administration Attorney at Stephen Bilkis and Associates.


Executors Seek to Enforce Notice of Election

March 25, 2015,

A Probate Lawyer said that, the executors seek a determination as to the validity and effect of the notice of election served and filed by the surviving spouse to take against testator's will. The will, dated August 1, 1960, was admitted to probate on January 24, 1961. By paragraph 'THIRD', testator bequeathed 35% of his estate to his wife with the direction that she 'devote and contribute one-third' thereof to certain charities. The will contains no other provision for testator's wife. The remainder of the estate is to be divided among named legatees in specified percentages.

There were no children born of testator's marriage, thus the intestate share of the surviving spouse is 50% of the net estate. The bequest provided for the surviving spouse under testator's will does not meet the minimum requirements of the statutes (Decedent Estate Law, §§ 83, 18). The statutory provisions in favor of a surviving spouse are remedial and are to be liberally construed.

A New York Estate Lawyer said that, in another probate proceeding, co-executor and legatee under the will of the decedent, appeals from so much of an order of the Surrogate's Court, Kings County, entered January 24, 1964, as granted $1,012.50 to lawyer for counsel fees, said amount to be a lien upon appellant's share of the decedent's estate.

The court holds that testator's surviving spouse has a right to elect to take 50% of the net estate as in intestacy (Decedent Estate Law, § 18, subd. 1, par. [a], as amended; Matter of Clark's Estate, 169 Misc. 202, 7 N.Y.S.2d 176; Matter of Bommer's Estate, 159 Misc. 511, 288 N.Y.S. 419; Sur., 133 N .Y.S.2d 199, affd. 285 App.Div. 1178, 141 N.Y.S.2d 921). Such intestate share of one half of decedent's estate shall be computed after deducting her statutory exemption, decedent's debts, funeral and administration expenses, but before deduction of any estate taxes (Decedent Estate Law, § 18, subd. 1, par. [a], as amended, eff . April 19, 1955; Matter of Wolf's Estate, 307 N.Y. 280, 287, 121 N.E.2d 224, 227; Matter of Taliento's Estate, 9 Misc.2d 167, 168 N.Y .S.2d 13). The will contains no direction as to the apportionment of estate taxes, thus the [30 Misc.2d 722] widow is entitled to have her share computed initially out of the net estate prior to deduction of State or Federal estate taxes (Matter of Wolf's Estate, supra). The estate taxes on the widow's share however are thereafter to be equitably computed in accordance with section 124 of the Decedent Estate Law (Matter of Peters, 275 App.Div. 950, 89 N.Y.S.2d 651; Matter of Campbell's Estate, 4 Misc.2d 331, 156 N.Y .S.2d 15). The widow's interest cuts across the entire estate, subjecting each testamentary gift to a pro tanto contribution to satisfy her statutory lien (Matter of Byrnes's Will, 260 N.Y. 465, 184 N.E. 56, 87 A.L.R. 223; Matter of Taliento's Estate, supra).

Westchester County Probate Lawyers said accordingly, the court held that the order, insofar as appealed from, reversed without costs, and matter remitted to the Surrogate's Court for the taking of proof as to the legal services performed by respondent on behalf of the appellant and as to the reasonable value of such services.

Suffolk County Probate Lawyers said the respondent's fee should not have been fixed without adequate proof as to the nature and extent of the services performed by him. His affidavit is vague in this regard, Moreover, issues of fact are raised which are determinable only upon a hearing.

If you in the same situation in the case at bar, seek the help of a Kings Estate Administration Attorney and Kings Probate Attorney at Stephen Bilkis and Associates.

Court Hears Attorney Malpractice Action Regarding Probate Case

March 24, 2015,

A Probate Lawyer said that, in a malpractice action brought against an attorney-at-law by a named devisee, who was allegedly deprived of his devise as a result of defendant's negligence in causing plaintiff to act as an attesting witness to the execution of the will, defendant moves for judgment under Rule 107, subd. 5, Rules of Practice, upon the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon. Since the argument of the motion the plaintiff has served an amended complaint. By consent of the parties it is the amended complaint, now alleging three causes of action instead of one, which the court presently has under consideration.

A Kings Probate Lawyer said that, the first and second causes of action are grounded in negligence, while the third seeks to allege an action in fraud. The facts are simply stated in the complaint. In January 1953 the plaintiff and his mother engaged the professional services of the defendant to prepare a last will and testament for the plaintiff's mother. The said will included a devise of specific real property to the plaintiff. The defendant 'negligently requested the plaintiff to be an attesting witness to the will.' Presumably at about the same time as the hiring, plaintiff did act as one of two attesting witnesses to the execution of the will. The defendant retained possession of the will thereafter, though for what purpose is not revealed. Plaintiff also alleges as negligence, in his second cause of action, that 'holding the will and not informing the plaintiff or the plaintiff's mother' that the devise to the plaintiff was void by virtue of plaintiff's having acted as a witness thereto. About seven years later, in December 1959, the mother died. The will was thereafter, in January 1960, filed for probate in the Surrogate's Court. It was then that plaintiff allegedly discovered that the devise to him had been voided by having acted as an attesting witness. As a third cause of action the complaint alleges, without other supporting evidentiary facts, that the plaintiff was damaged 'by reason of the deceit of the defendant in connection with the possession of the will from the time of the execution of the will to the time of the filing of the will and the defendant's actions prior to and subsequent to the death of the plaintiff's mother.' Under the foregoing 'deceit' allegation, plaintiff demands treble damages pursuant to Section 273 of the Penal Law.

A New York Estate Lawyer said in this motion plaintiff argues that no actionable wrong was committed at the time the will was drawn. He claims that 'the cause of action accrued only when the plaintiff suffered the actual damage,' and that 'injury was not produced until the death of the testatrix and the filing of the will'. Plaintiff contends, that a cause of action 'accrues only when the forces wrongfully put in motion produce injury.' Plaintiff's principal argument appears to be that defendant was under a duty during the seven-year period, when he had possession of the will, 'to contact the testatrix or the plaintiff and advise either of them that the will was defective,' 'that the negligence of the defendant continued during the period,' and the 'defendant's failure to avert danger to the plaintiff's property constituted further and continuing negligence.'

Nassau County Probate Lawyers said the pivotal point as raised by the motion is the timeliness of the commencement of the plaintiff's action which was instituted by service of the summons on January 16, 1961, almost eight years after the will was prepared and executed and about one year after the death of the testatrix. That question in turn depends upon when the plaintiff's action accrued. The defendant asserts that the action accrued when the charged negligence allegedly occurred in January 1953 upon the execution of the will. The plaintiff urges that defendant's negligence, by having possession of the will and by not notifying the plaintiff or the testatrix of the will's defect, continued during the seven-year period that the will remained in defendant's possession.

Staten Island Probate Lawyers said it is undisputed that an attorney employed to prepare a written instrument is responsible for any loss sustained by his client as a result of his negligence in so doing. Concerning an attorney's malpractice it has textually been written that 'As a general rule, in the absence of fraudulent concealment, where an attorney at law is guilty of negligence or breach of duty in performing services for his client, the client's cause of action accrues and the statute begins to run at the time when the negligence or breach of duty occurs, not at the time when it is discovered or actual damage results or is fully ascertained, and it is immaterial whether the remedy invoked is assumpsit or a special action on the case, for the gist of the action is the attorney's breach of contract to use diligence and skill, and the subsequent damages give no new cause of action.'

The complaint alleged a contract between plaintiff and defendant. It may be reasonably inferred from the allegations that the agreement, made also with the testatrix, required defendant to include in the will the specific devise to the plaintiff. The charge against defendant is that he 'negligently requested the plaintiff to be an attesting witness.' In substance, therefore, defendant is accused of having failed to use diligence and the skill required and expected of an attorney-at-law in the execution of the will. While no date is specified when the will was signed and attested, it may be assumed for the purposes of this motion that it was executed on or about January 30, 1953, the date when defendant was retained. Consequently the breach of duty, the negligence, occurred on that date.

While plaintiff acknowledges that defendant's negligence took place on that date, he denies that any damage occurred at that time. In this respect the court must disagree with such conclusion and finds instead that damages did result, as related in the complaint, upon the occurrence of the defendant's alleged negligence, at least nominally and at least equivalent to the value of the cost attendant to having a new will prepared and executed. The statute of limitations 'runs, and the cause of action is deemed to have arisen, when the breach resulting in the damage occurred, and this is true whether the ultimate damage is sustained at that time or subsequent thereto.' In the Crowley case the court held it was immaterial whether the ultimate damages were sustained at the time of such breach or subsequent thereto. The court there found that the action against the attorney accrued when he breached his agreement to record a mortgage, and not when the plaintiff discovered such breach.

In the instant situation, the court's holding is not contrary to the law. Actually it is in perfect harmony. The court there noted (270 N.Y. at page 300, 200 N.E. at page 827) that 'the injury occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues.' In that case the court found that, despite the existence of negligence, no actionable wrong was committed until disease set into the lungs, not when the plaintiff inhaled the dust. If inhalation of the dust did not result in disease, the danger, from the negligence in causing plaintiff to inhale dust, would have been averted. There would have been no injury and no cause of action. In the instant situation, due to the defendant's negligence an injury to plaintiff's property rights arose immediately upon the voiding of the devise, and such damage was measurable at that time, though incomplete in extent.

The action for malpractice as alleged in the first cause of action had accrued upon occurrence of the negligence and not upon plaintiff's alleged discovery of the malpractice, after the testatrix' death. By the second cause of action, based upon defendant's possession of the will during the seven-year period, the pleader assumes that a further duty devolved upon the attorney, to wit, the duty to inform 'plaintiff or plaintiff's mother' of the will's deficiency. Plaintiff's 'theory on the foreseeability of harm if such warning is not given' has no support in law. The negligence having once taken place, and such negligence having allegedly been concealed from the plaintiff at the time of the occurrence, there does not appear to be any authority for imposing upon the practitioner an additional duty in connection therewith requiring him to reveal his negligence at some future date.

No further negligent act on the part of the defendant having been shown, the second cause of action is also barred by the statute of limitations. Plaintiff in his third cause of action, after re-alleging the facts pertaining to the negligent execution of the will, characterizes defendant's possession of the will as 'deceit'. Aside from the objections stemming from the conclusory nature of this portion of the pleading, there is lacking the essential elements of a common law action for fraud and deceit, namely: representation, falsity, scienter, deception and injury. Plaintiff was aware of the fact that he had witnessed his mother's will. It was that act which voided the will's provision. It cannot be urged therefor that defendant's possession prevented plaintiff, by deceit or otherwise, from learning the fact that he had witnessed his mother's will. The deceit, if any, could only have occurred at the time of the will's execution by the defendant's breach of duty in failing to disclose to the plaintiff at that time the defendant's negligent act and the consequences of allowing plaintiff to be an attesting witness. The use of the word 'deceit' has not effected a change in the basic character of the action as one grounded in negligence which occurred in 1953 and is therefore barred by the statute of limitations. It would appear that the only purpose for adding the fraud element was to take the case without the applicable statute of limitations. However, that did 'not change the nature of the action.' The gravamen of the action is still malpractice, not fraud.

An allegation of deceit in concealing the defect, by virtue of defendant's possession of the will, does not preclude pleading the statute of limitations as a defense. If plaintiff had intended to plead a cause of action based upon 'fraud extraneous to the contract' (Brick v. Cohn-Hall-Marx Co., supra, 276 N.Y. at page 264, 11 N.E.2d at page 904), he has failed to include the necessary material averments to support such theory. Even if the plaintiff had intended to plead an agreement to obtain a specific result, or to assure the effect of the legal services rendered, which is not the situation here, the action for breach of contract would be barred by the six-year statute of limitations.

Accordingly, the court held that the motion is granted dismissing all three causes of action, with leave to plaintiff if so advised to replead within twenty days after service of a copy of the order to be entered hereon with notice of entry. Settle order.

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Court Discusses Rule of Perpetuities

March 22, 2015,

Probate Lawyers said the question presented on this record is whether the trusts created by the will of CMR, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix, at her death, was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits, and income of the trust-estate for the support and maintenance of two children of the testatrix during their lives, respectively, with remainder, on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority, and without issue, the whole estate is to be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then, on the death of the longest liver, the whole estate is given absolutely to designated beneficiaries. Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would in that event be but for one life only; but if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share, therefore, there might be a suspension for two lives, but this would be within the limit allowed by law.

A New York Estate Lawyer said there would be no difficulty in sustaining the limitations in the will, if the period of suspension in this case is reckoned from the death of the testatrix, and the will only is to be regarded in determining the validity of the trusts. The statutory limit of suspension of the power of alienation of real estate is two lives in being at the creation of the estate, and a minority, and substantially the same rule applies to limitations of personal property. By another section of the statute it is declared that the delivery of the grant, where an expectant estate is created by grant, and where it is created by devise, the death of the testator shall be deemed the time of the creation of the estate. If nothing is to be considered in this case except the terms of the will, and these two sections of the statute, no doubt could be entertained of the validity of the trusts in the will; but if the will was the execution of a power of appointment vested in the testatrix, and not an exercise by her, as the owner of the property devised and bequeathed, of the jus disponendi, incident to ownership, a new element is introduced, and the validity of the trusts in the will is to be considered in view of the trust-deed of January 6, 1853, and the provisions of the statute of powers. By section 128 of that statute it is declared that ‘the period during which the absolute right of alienation may be suspended by an instrument in execution of a power shall be computed, not from the date of the instrument, but from the time of the creation of the power. Section 129 declares that no estate or interest can be given or limited to any person by an instrument in execution of a power which such person could not be capable of taking under the instrument by which the power was granted; and by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted.

Nassau County Probate Lawyers said it is claimed in behalf of the respondents that the will of Mrs. CMR was merely an execution of a power of appointment reserved in the trust-deed of January 6, 1853, made between the testatrix (then CMF) of the first part, and GSR and others of the second part, and that, construing the will in connection with the trust-deed and the provisions of the statute of powers, the trusts created by the will contravened the statute, for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz., upon the lives of the two children of the testatrix, who, though living when the will was made, were not born until long after the trust-deed creating the power had been executed. The consequence is claimed to follow that the will was an unlawful attempt to suspend the power of alienation upon a contingency not authorized, viz., the lives of persons not in being at the time from which, by section 128 of the statute of powers, the suspension must be computed. The trust-deed was made in contemplation of the marriage of the settlor, CMF, with GSR. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts, or incumbrances of her husband, and to secure the principal to her, if she survived her husband; or, in case she should die during coverture, to her appointees by will; or, if she should make no appointment, to such persons as at her death would be her heirs, under the laws of New York, as if all the property was real estate.

Suffolk County Probate Lawyers said to secure these objects, the settlor conveyed by the trust-deed to the trustees all her real and personal estate in trust, to receive and apply the rents, issues, profits, and income to her use as received without power of anticipation during her coverture, and in case she survived her coverture, to reconvey the property to her; but in case she should die during coverture, then the trustees are directed to grant, assure, and deliver all and whatever may remain of the hereby granted premises unto such devisee or devisees, in such share or proportion as she, the said party of the first part, by her last will and testament may appoint, which appointment the instrument declares she, the said party of the first part, is empowered, authorized, and enabled to make, and by force of these presents, without any other or further reservation of power in that behalf, etc. Then follows an alternative provision that in default of appointment the property shall go unto such person or persons living at the death of the said party of the first part, and being her heir or heirs at law, as would be entitled to take the same by descent from her in case the same was land belonging to her, situate in the state of New York, and, if more than one person, then in the proportion in that behalf prescribed by the laws of said state.

The trust-deed created a valid trust for the joint lives of Mrs. CMR and her husband, or during coverture, if she should become discovert by the death of her husband before her death. It was one of the express trusts authorized by statute, to receive the rents and profits of lands, and apply them to the use of any person during the life of such person, or for a shorter period, and suspended the power of alienation of the real estate and the absolute ownership of the personal property embraced in the trust, during the trust term; and although the trust might have terminated before the expiration of Mrs. Rigg's life by the death of her husband in her life-time, the suspension was, in legal effect, a suspension during a life. Neither she alone, nor in conjunction with the trustees, could abrogate the trust. The statute makes every conveyance or other acts of the trustees of an express trust in lands, in contravention of the trust, absolutely void, and by analogy the same rule governs trusts of personal property. The will further provides in a contingency for the suspension of the power of alienation and the absolute ownership of at least one-half of the same property during the lives of the two children of the testatrix, making possible a suspension for three lives, if the trust created by the trust-deed, and the trusts created by the will, are to be read as if incorporated in a single instrument, viz., the trust-deed of 1853. If Mrs. CMR remained the absolute owner of the property after the execution of the trust-deed, subject only to the estate of the trustees for her life, the trusts in the will would be valid. The reversion in the case supposed would be property which she could grant or devise, and limit future estates thereon in her discretion, subject only to the restriction that they must vest in absolute ownership within two lives in being at their creation. But Mrs. CMR was not the absolute owner of an estate in reversion after the execution of the trust-deed. In form the whole estate was conveyed to the trustees. Their title, however, was, in legal effect, limited in point of duration to the trust term. But the trust-deed itself contains a limitation of the estate to other persons than Mrs. CMR in the event of her death before her husband, and without having made an appointment by will, viz., to such persons living at her death as would take the property as her heirs, under the laws of the state of New York, by descent, as if it was wholly real estate. The property transferred by the trust-deed was mainly personal, but at the time of Mrs. CMR' death was mainly real, the trustees having, under the authority of the deed, invested the fund to a large extent in real estate situate in New York and Maryland.

The remainder-men, in case the event happened upon which the remainder was limited, would take as purchasers. It was limited to persons who would not be entitled as of course to the personal estate, and who might not be entitled to the real estate outside of New York, and whose title would not be subject to the tenancy by the curtesy of the husband, as it would have been if the deed had not been made. It is true that the remainder might be defeated by either of two events,-by the death of Mrs. CMR before the death of her husband, or by her will in execution of the power of appointment made and taking effect during his life,-and it was in fact defeated in the latter way. But Mrs. CMR could not during the life of her husband affect the limitation in remainder, except in the particular way pointed out; that is, by an appointment by will. She could not defeat it by a conveyance inter vivos. The quality of absolute property, which enables an owner to dispose of it in any of the forms known to the law, did not attach to the interest remaining in Mrs. CMR after the execution of the trust-deed. What she did have was a reversion depending on the event of her outliving her husband, which has been defeated by her death, and in addition a right to appoint by will only in case of her death during coverture. It is a doctrine of the common law that an unrestricted power to appoint a fee in lands by deed or will is equivalent to ownership, because the donee of the power may at any time, by exercising the power, acquire an absolute estate, and in such cases the question of perpetuity arising upon limitations made by the donee of the power is determined with reference to the date of the execution of the power, and not of the instrument creating it. But the general rule is expressed by Chancellor Kent, in his Commentaries, An estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power. The power of disposition reserved by Mrs. CMR in the trust-deed was not an absolute power equivalent to absolute ownership. It was restricted to a disposition by will. The statute of powers defines an absolute power to be one by which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit. The power in this case was general, but not absolute.
We think the validity of the suspension in the will of Mrs. CMR is to be determined by the test, whether it would be valid if it had been part of the limitation in the trust deed, and had been inserted therein at the time the deed was executed. This seems to be the rule of our statute, and it is the rule of the common law in respect to appointments under special powers. Mr. Jarman, in referring to this subject, says that the reason that this test is not applicable to appointments under general powers is that such powers are, in point of alienation, equivalent to actual ownership; but he adds: This reason fails when the power, though general in its objects, is to be exercised by will only. In such a case, the power of disposition is suspended during the life of the donee, and appointments made by virtue of it are therefore to be tested in the same way as appointments under a special power. The case of In re Powell's Trusts, 39 Law J. Ch. 188, decided by JAMES, V. C., cited by Mr. Jarman, fully sustains the text. The case of Rous v. Jackson, L. R., 29 Ch. Div. 521, seems to be adverse, but it proceeded, I think, on a failure to discriminate between a general and unrestricted power, and one to be exercised by will only, and this is the view taken by Mr. Gray, in his work on Perpetuities, § 526. We think, therefore, the trusts in the will of Mrs. CMR are to be construed as if created at the date of the trust-deed of 1853, and that, so reading them, they are invalid as an attempt to suspend the power of alienation of real estate and the absolute ownership of personal property for three lives, and for the additional reasons that the two children upon whose not in being when the trust-deed was executed, and could not have taken such an estate as was limited under the will, if it had been limited in the same manner in the deed of 1853.

The argument has been urged upon us that, conceding that the absolute power of alienation of the trust-estate was suspended during the coverture of Mrs. CMR, under the general rule, by reason of the disability imposed by the statute upon the trustees to do any act or make any conveyance in contravention of the trust, this disability was removed as to property held in trust for married women by the married woman's act of 1848, as amended by the second section of the act of 1849. That section provides that any person who may hold any real or personal property as trustee for any married woman may, on her written request, convey the same to her, or the rents, issues, or profits thereof, for her sole and separate use and benefit; but it is made a condition to such conveyance that the request shall be accompanied by a certificate of a justice of the supreme court that ‘he has examined the condition and situation of the property, and made due inquiry into the capacity of the married woman to manage and conduct the same. This statute does not, we think, answer the difficulty. Assuming that the trust in this case was within the statute of 1849, the disability imposed upon a trustee of an express trust by the general statute is not removed in the case of a trustee for a married woman except conditionally, the condition being the judicial action of a judge certifying, after a judicial examination of the facts, that it is a proper case for the exercise of the power conferred by the act. In substance the statute confers a power dependent upon the consent of a judge of the court. Until such consent is obtained, the suspension continues. It could not be terminated by the conjoint action of the trustees and Mrs. CMR. The general test of alienability is that there are persons in being who can make a perfect title. This cannot be predicated, we think, of a situation where judicial action, which may or may not be obtained, is requisite to authorize a conveyance. See Gray, Perp. § 527. But, independently of this consideration, we think the statute was intended to apply merely to nominal trusts, to secure a married woman in the enjoyment of her separate estate, where this was the sole object of the trust. The statute, in such a case, permits the trust to be abrogated and the legal title to be vested in the beneficial owner, the separation of the legal and equitable estate no longer serving under our statutes any useful purpose. It certainly cannot be construed to prevent a parent, relative, or other person from creating an express trust to apply the rents and profits of the trust-estate for the benefit of a married daughter, niece, or other female, without subjecting it to the risk of destruction by the conjoint action of the trustee, the beneficiary, and the court. In this case the trust created by the deed of 1853 was not a mere formal or passive trust. The title to the property was vested in the trustees. It was strictly a trust under the statute. The deed not only declared the interest of Mrs. CMR in the trust property, but limited thereon future contingent estates, to take effect on her death during coverture, unless defeated by her appointment by will. This trust was not, we think, within the purview of the statute of 1849. If a conveyance had been made to her under that statute, the property would not be held ‘for her sole and separate use and benefit, because the contingent estate in remainder could not in that way be defeated. We think the court below properly construed the will, and the judgment should therefore be affirmed.

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Defendant Claims That Plaintiff Should Have Applied for Guardian Ad Litem Proceeding

March 21, 2015,

Defendant moves, pursuant to subdivision 8 of Rule 107 of the Rules of Civil Practice, to dismiss plaintiff's complaint on the ground that the cause of action cannot accrue against the infant defendant because of his infancy.

Probate Lawyers said the action is brought by the infant plaintiff against the infant defendant for a separation on the ground of alleged cruel and inhuman treatment. It appears from the papers before the court that both of the parties are under 21 years of age. Before instituting this action, plaintiff applied for and secured the appointment of a guardian ad litem. Thereafter, the summons and complaint were served upon both the infant defendant and his father with whom he resided. Defendant now asserts that plaintiff should have applied for the appointment of a guardian ad litem for the defendant before making service of the summons and complaint herein.

A New York Estate Lawyer said the issue before the court is whether it is the obligation of the plaintiff to apply for and secure the appointment of a guardian ad litem for the defendant prior to the service of process, or whether it is the obligation of the defendant, after having been served with the summons and complaint, to himself apply for such relief.

Section 218 of the Civil Practice Act provides that A civil action is commenced by the service of a summons. Section 225 of the Civil Practice Act provides that if the defendant be an infant, service of the summons is made by delivering a copy thereof to his father and if the infant be of the age of fourteen years, or over, also to the infant in person. The section further states that the court, in the defendant's interest, may make an order, in its discretion, requiring a copy of the summons to be also delivered in behalf of the defendant to a person designated in the order, and that service of the summons shall not be deemed complete until it is so delivered.
In the case before the court, no order such as previously referred to, has been entered.

Queens Probate Lawyers said therefore service was complete when the summons was delivered to the infant and his father. That being so, the time to answer commenced to run and at the expiration of 20 days from said service, the defendant would be in default unless an answer was served or an attack upon the complaint or manner of service was made, as otherwise provided for in the Rules of Civil Practice or the Civil Practice Act.

Staten Island Probate Lawyers said the defendant bases his right to the relief herein demanded upon the claim that no judgment may be entered against an infant defendant without the appointment of a guardian ad litem. Be that as it may, the failure to appoint such guardian might be sufficient reason to withhold the entry of judgment, but it is questionable whether the default of an infant who was properly served would be excused solely because of the failure to appoint a guardian ad litem. Section 203 of the Civil Practice Act provides that the guardian must be appointed upon the application of the infant if he is of the age of fourteen years or upwards; and in the case of an infant defendant if no such application shall have been made the application may be made by any other party to the action. A mere reading of this section indicates that the application must be made by the infant if he is over the age of 14 years. If the infant fails to do so, then any other party to the action may make the application. However, no infant defendant would have any reason for making the application for appointment of a guardian ad litem prior to the service upon him of process, since there would be no action pending until such process has been served. No other party to the action could make such an application pursuant to the provisions of Section 203 since there would be neither an action nor parties thereto prior to the commencement thereof. And if there is such an action, then the infant over fourteen in the first instance, has the right to apply for the appointment of the guardian.

How then could the plaintiff in this case apply for the appointment of a guardian ad litem for the infant defendant, as defendant now contends upon the present motion? The question answers itself. It cannot be done under the provisions of the Civil Practice Act.

Rather is it the duty of the defendant, who has been served with a summons in the action, if he be an infant, to apply for the appointment of a guardian ad litem prior to the service of an answer. If he fails to do so, he may not serve an answer because he may only act through a guardian ad litem. If he does not do so, the plaintiff has the option of waiting until the time to answer expires, and then apply for the appointment of a guardian for the defendant as a prerequisite to the entry of judgment. But no such obligation rests upon the plaintiff as a prerequisite to obligating the defendant to file an answer.

The question has heretofore arisen under other similar circumstances. Thus, when a defendant litigant dies, the question sometimes arises as to whose responsibility it is to secure the appointment of a representative of the defendant's estate, so that the action may be continued. Some have urged that since plaintiff has brought the action, it is plaintiff's obligation to procure the appointment of a representative of defendant's estate so that plaintiff may proceed with the action. Others have urged that it is the defendant's representatives, seeking to defeat the plaintiff's cause of action, who are obligated to secure the appointment of a legal representative of the estate. It seems to the court that the latter view seems to be the correct one. The family of a person who has died, or his attorney, certainly are in a much better position to know what rights have accrued as a result of the death of a defendant than does the attorney for the plaintiff. The attorney for a deceased party and his family would know who are the proper heirs, who must be cited in order to secure the appointment of a legal representative, whether a will is or is not available for probate, and all of the many other facets which surround an application for the appointment of a legal representative. While it is true that a defendant need not assist the plaintiff in securing an ultimate result in plaintiff's cause of action, it is the defendant's obligation to secure the appointment of a legal representative as a condition for being allowed to defend, rather than for the purpose of assisting the plaintiff in winning his cause of action.

The present application with respect to the appointment of a guardian ad litem must be based upon like reasoning. It is the defendant, seeking to defend against the cause of action which has been properly asserted against him, who must secure the appointment of a guardian ad litem as a condition to being allowed to defend, rather than the plaintiff being required to secure such appointment for the defendant as a condition of even bringing the lawsuit.

By virtue of the foregoing, the motion to dismiss is in all respects denied. Defendant may, if he so desires under the prayer for other and further relief, submit an order upon his proper petition, appointing a guardian ad litem.

If you have similar problems above, contact the New York Kings County Estate Lawyers of Stephen Bilkis and Associates, they are experts on estate dispute and estate proceedings. In addition, for problems on probate of last wills and testament, their New York Kings County Probate Attorneys can help you probate of last wills and testament left by a decedent or dispute a probate proceedings. Visit their offices located around New York Metropolitan for free legal consultation.

Trustee Requests Final Accounting of Residuary Trust

March 20, 2015,

Probate Lawyers said this is a final accounting by the trustee in respect of the residuary trust which terminated upon the death of testator's widow and life beneficiary on April 16, 1957. In conjunction therewith the Court is required to construe the will, particularly article 'Eighth' subd. '(2)' thereof. The construction involves the applicability of Decedent Estate Law, § 47-a, which reads as follows:

If a person dying after this section takes effect shall devise or bequeath any present or future interest in real or personal property to the 'issue' of himself or another, such issue shall, if in equal degree of consanguinity to their common ancestor, take per capita, but if in unequal degree, per stirpes, unless a contrary intent is expressed in the will.

A New York Estate Lawyer said that the testator died on December 10, 1936, leaving a will dated November 14, 1930, and two codicils, all of which were duly admitted to probate in this Court on December 28, 1936. Letters testamentary were issued to the widow and Guaranty Trust Company of New York who were the nominated executors, and letters of trusteeship were issued to the trust company now accounting. Testator was survived by his widow, a stepson, a brother Thomas who has since died, a nephew who is the son of a predeceased brother, and a brother WWG. WWG, who died in 1942, was the primary remainderman in the article of the will to be construed. The latter was survived by an only child now known as MH. She and her first husband were divorced and both subsequently remarried. The husband was given custody of their two daughters who were born in 1940 and 1943 respectively. The construction affects the conflicting interests of their two minor children on the one side and of their mother on the other, as secondary remaindermen. The mother's interest is said to be subject to the claims of assignees, sub-assignees and judgment creditors.

Brooklyn Probate Lawyers said that by article 'Eighth', testator created a residuary trust with income payable to his wife for life with right to invade principal. Upon her death, the trustee was directed to divide and pay over the principal of such residuary trust, or so much thereof as shall than remain, as follows:

(2) Nine-twentieths thereof to my aforesaid brother WWG, or if he then be dead to his descendants then living, or if neither he nor any descendant of his then be living, to my a foresaid nephew Franklin Gardiner, or if he then be dead, to his descendants then living, or if neither he nor any descendant of his then be living, then in equal parts to and among the following, viz:

Long Island Probate Lawyers said that WWG having predeceased the life beneficiary, the question at issue is whether the nine-twentieths part of the remainder given to him if living, or if dead to his descendants, is to be distributed per stirpes or per capita. If testator's gift to his brother's 'descendants' was one per stirpes, they take by representation, and MH or her assignees would be entitled to receive her father's share to the exclusion of her two minor children. If, on the other hand, the gift was per capita, her two daughters would each receive a one-third share and the assignees and judgment creditors would have a claim to the one-third share of MH.

The rule was firmly established under common law that a gift to issue or to descendants was presumed to be per capita. The legislature in 1921 enacted § 47-a, Decedent Estate Law, which abolished the common law presumption and provided a statutory per stirpes presumption when the word issue was used in a will or, as interpreted by the courts, in a deed of trust. The amendment did not refer to the word descendants, despite the fact that the presumption at common law was equally applicable to descendants. The Court must therefore determine, among other things, whether the word issue in the aforesaid section of the Decedent Estate Law is to be interpreted as embracing the word descendants. Additionally, since either the common law or the statutory presumption must give way to testator's true intent, the Court must consider the will as a whole and the surrounding circumstances.

The coverage of the statute will be considered first. The legislative history of § 47-a sheds no light on the question of coverage, no reference being found to the term descendants. The same is true with regard to similar legislation proposed in 1917, which also was confined to the word issue. The term descendants is well known to the legislature and is used purposefully in many instances either alone or jointly with issue or other terms of kinship. Its primary use in the Decedent Estate Law is in the statute of descent and distribution, § 83. Other references, which the courts have construed in ways not relevant in this instance, appear in § 17. The term is implied in § 26. In addition, at times the term is incorporated in the phrase terms of like import as in § 47-c.

The Court's attention has not been called to any appellate court decision dealing with the question of coverage and its independent research has not disclosed any. The first case on the subject decided in 1948 holds that § 47-a does not apply to the term descendants in a will, but the court found that testatrix' language clearly showed an intent for distribution per stirpes. This case was cited in In re Bond's Estate, Sur., without any reference to the section's coverage and presumably only as authority for stirpital intent on the basis of testamentary language. As against the holding in Matter of Walbridge's Will, two cases decided in 1954 hold that the section does cover the word descendants. The latter case quotes Professor Powell's criticism of the limited application of the section to 'issue' in the Walbridge case as disregarding the spirit of the statute. Counsel call the Court's attention also to the following text:

Inasmuch as issue and descendants are synonymous terms, it would seem that the statute may be deemed to control the meaning of the latter term, and to the same view expressed in Warren's Heaton on Surrogates' Courts. Nevertheless, and with due deference to these respected authorities, a careful analysis of the question involved and a review of the cases leading to the enactment of § 47-a, bring this Court to the conclusion that the statute was not intended to cover the word 'descendants' and that the common law presumption still controls in respect thereof.

In the cases cited above a stirpital intent appeared in the language of the will, to which the courts necessarily gave effect. The matter of coverage of the statute was actually of secondary or no consideration. Moreover, they relied on precedents in which the term construed was 'issue', the term 'descendants' being used only as one of reference and

definition. Professor Powell mentions no authority for the critical footnote comment. The only authority cited to support the view in Davids, supra and Warren's Heaton, supra, is Whitehead v. Ginsburg, supra, in which the majority construing a pre-s 47-a will found a stirpital intent at common law by reason of the language of the will read as a whole. The court in that case again relied upon precedents construing only the word 'issue' where equality of treatment was held indicative of stirpital intent, and applied the same presumption to 'lineal descendants' as being synonymous with 'issue'. Only in passing did the court refer to § 47-a, which had just been enacted, but it did not state that it covered 'descendants' since that was not necessary to its decision. As to the criticism that an interpretation of the statute limiting it to 'issue' disregards its spirit, the Court must be mindful of the well-known rule that a statute in derogation of the common law must be strictly construed. Furthermore, the Court is of the view that the spirit and purpose of § 47-a was intended to involve only the term 'issue' and not the term descendants, and that the Legislature did not intend to leave to surmise, conjecture and inference such an important matter as the alleged coverage of the word descendants. It would have been easy enough for the Legislature to have expressly included the term if it had wished to do so.
There are significant differences between 'issue' and 'descendants' which bear upon the validity and force of the reasons for the common law presumption applicable to them respectively and the reversal of the presumption to the limited extent in respect of 'issue' which this Court believes was intended by the statute. As a class encompassing either the first degree or all degrees of offspring, in accordance with the user's intention, the word 'issue' is generally proper whether the parent of an offspring is living or not. The term is customarily used in connection with the laws of descent and inheritance. It may be either a word of limitation usually in wills, or a word of purchase in deeds. In contrast, 'descendants' is a word of fixed meaning, or at least less flexible. It is rarely restricted to mean first degree offspring, or descriptive of a child whose parent is living. 'Descendants' has reference to genealogy, or the succession of persons in the family relationship, and has no necessary connection with the laws of inheritance. These fine distinctions lend force to the more precise comparison between the two terms made by a distinguished author and his advice as to their proper use in wills: The word 'issue' is technically, and when not restrained by the context or family circumstances, co-extensive and nearly synonymous with the word 'descendants,' comprehending those of every degree. It is, however, frequently employed in the restricted sense of children. Generally speaking, when practicable, the use of the word 'children' or 'descendants' is recommended in preference to the word 'issue' as they have more definite meaning, and are consequently less liable to litigation'.

The term 'issue' in general has given the courts more frequent and greater difficulty than 'descendants' and in respect of the common law presumption is primarily responsible for their perplexity which was finally resolved in this state by § 47-a. Historically the term 'descendants' did not present the same difficulties. The Court in Petry v. Petry, whose scholarly analysis of the reasons for the common law presumption and hopeful suggestion for its abandonment may have to a degree been responsible for the enactment of the statute, delves into the basis for the judicial disfavor of the common law rule. In doing so, neither in its own opinion nor in the authorities relied upon, is any reference made to 'descendants' as the cause of such disfavor.
The normal and legal meaning of the term 'descendants' has generally encompassed the offspring in all degrees of a deceased common ancestor, without regard to any particular descendant having a living parent. Therefore everyone who qualifies as a member of a class of 'descendants' is regarded as an original object of the bequest and takes equally with the other members, unless a contrary intent is indicated. Page on Wills at § 1077 in discussing 'descendants' clearly states: A gift to descendants of testator's brothers and sisters is prima facie to be distributed per capita, which is the type of gift with which we are concerned in the case at bar.

The Court concludes that in enacting § 47-a, Decedent Estate Law, the Legislature was not called upon and did not attempt to alter the prevailing common law per capita presumption applied to the term 'descendants' as to which in the Court's view there was little or no 'mischief' to be remedied. It follows therefore that distribution here must be made to MH and her two children as the descendants of WWG, per capita, unless the testator without regard to technical considerations intended the contrary.

The Court will now examine the will in an attempt to discover a faint glimpse, if any, of an intent on the part of the testator for stirpital distribution. Testator's intent is to be determined from the language of the will as a whole in the light of the surrounding facts and circumstances. The particular provisions of the gift in question may be compared with similar provisions found in the will and interpreted in line with the general testamentary plan, if any, and in view of the relevant conditions as they existed when he drew the will and sometimes until the time of his death. To this and extrinsic evidence may be resorted to if the intent is not clear and is otherwise not ascertainable. These propositions are too well established to require citations. If necessary to establish the facts a hearing should be held but no such necessity appears herein.

In respect of a particular term or phrase used by the testator, his intent 'must be ascertained by a reference to the law which the testator had in mind, and with which he was familiar at the time of execution. This quotation is most apt when construing the will of a lawyer, and especially here where both testator and the draftsman of the will were experienced lawyers. When testator executed his will and codicils there was no authority which held that Decedent Estate Law, § 47-a, covered the use of the term 'descendants'. The section had changed the common law presumption only as to 'issue'. It is very significant that testator avoided the use of that term throughout the will. It is as if he heeded the admonition to avoid its use when practicable as a source of litigation, implied in the contemporaneous recommendation by Professor Remsen in his treatise on wills and trusts quoted above. The same thought was expressed in the comment by a committee of the Bar Association recommending passage of § 47-a which, considering its source, may be deemed as having been carefully worded: 'The committee believes that some general provision of this sort is advisable, and that it would prevent and settle considerable litigation over the meaning of the word 'issue' in actions and proceedings where wills are to be construed'. Bulletin No. 2 of Committee on Amendment of the Law, Association of the Bar of the City of New York, 1921. No concern was expressed as to litigation over the meaning of the word 'descendants'; evidently its common-law connotation of per capita distribution was deemed well left undisturbed. Testator as a lawyer, or the scrivener in his law firm, may reasonably have reached the same conclusion, using the word 'descendants' with that in mind and avoiding the word 'issue' to which Decedent Estate Law, § 47-a, gave a presumed stirpital meaning. Not until much after his death was a difference of opinion reported as to whether the section gives a similar meaning to 'descendants'.

Testator throughout the will used other terms and phrases when he intended to indicate a mode of distribution other than to descendants per capita. Thus in article 'Fourth', by which he created a $20,000 trust for his brother Thomas for life and remainder to his nephew, he designated the secondary remaindermen as such person and in such proportions and amounts as if my said nephew had then died intestate and the owner thereof under the laws of the State of New York then in force governing the distribution of personal property of intestates. He employed the very same designation for the secondary remaindermen of two trusts each in the sum of $120,000 or 1/10 of his net estate, whichever is lesser, which he created by articles 'Fifth' and 'Seventh' for the benefit of his stepson and nephew respectively.

In article 'Eighth', a residuary trust was created for the life benefit of testator's wife. The remainder is directed to be divided in accordance with provisions contained in three subdivisions; and here in subdivision (1) it is noted that when testator intended to give a secondary remainder to the children of the primary remainderman living at the time of the latter's death (which is the interpretation sought in behalf of MH under subdivision of this article) he said exactly that. In subdivision (1) he gave 2/20ths of what would be left of the principal of the residuary trust upon the death of his wife to his stepson Sylvestor or if he then be dead to his children then living, or if neither he nor any child of his then be living, then in equal parts to and among' three named charitable institutions. In contrast and immediately thereafter, in subdivision (2) which is the provision under consideration, testator gave 9/20th to his brother WWG 'or if he then be dead to his descendants then living, or if neither he nor any descendant of his then be living, then in equal parts to and among' five named charitable institutions. It seems clear that in subdivision (1) testator intended to limit the secondary beneficiaries to his stepson's immediate children and that in subdivision (2) he intended by the word 'descendants' to include within that class not only his brother's child, MH, but also her children although then not yet born; otherwise, he would have repeated the same description 'children' in subdivision (2) or perhaps the singular since his brother had only one child. The same distinction applies to subdivision (3) of article 'Eighth' by which testator gave the remaining 9/20ths of the principal of the residuary trust to his nephew in the same manner as to his brother by subdivision (2). Here testator further differentiated the class of secondary remaindermen, being the 'descendants then living' of the nephew, from the class of remaindermen of the trust for the nephew created by article 'Seventh' in which the class comprised those persons who would take his property as in intestacy.

These clear distinctions carried out throughout the will point to an expression of intent to which full effect must be given. One cannot but feel that testator's obvious avoidance of the term 'issue' and discerning use of other terms, such as 'child', 'children', 'descendants' and those who take by intestacy, was deliberate and with the intention of differentiating as to the classes of beneficiaries under the different provisions of the will and of not imposing a uniform form of distribution. What testator meant when he used these terms, in the light of his refraining from using the most common term 'issue', is not to be decided in vacuo. As heretofore stated and at the expense of repetition, when testator drew his will the statute had altered the presumption as to 'issue' and a distinguished author had advised to avoid the use of that term if possible. It is reasonable to assume therefore that testator desired to avoid the statutory preference for stirpital distribution by using the word 'descendants' instead of 'issue' in the belief, thought to be correct by this Court, that the former word retained the common law connotation of per capita.
The differences in the amounts of the gifts and in the classes of secondary remaindermen under the various provisions of the will does not persuade the Court, as contended in behalf of MH, that testator intended to provide equally for two fraternal blood lines, one his brother WWG and the latter's daughter MH, the other his predeceased brother and the latter's son Franklin. It does not appear here that 'equality among those of equal degree in relationship is the keynote of the entire instrument' and therefore should call for stirpital distribution as to each class of secondary remaindermen. Nor is there sufficient support for the contention that the will establishes a per stirpital pattern that should be applied under subdivision (2) of article 'Eighth'. First, as a requisite for such application there must be identity of terms in the provisions for distribution in related instances and an express or implied direction for equal treatment of stock which the testamentary language here negate. Second, whereas a per stirpital pattern appears in other provisions of the will, in the entire article 'Eighth' dealing with the residuary trust the contrary pattern appears. Consistency and harmony is not necessarily intended when the provisions being compared are as here not in 'parimateria' and do not relate to the distribution of the same remainders to the same classes on the termination or failure of the same intermediate estates.

In the one respect which presents the principal issue in this proceeding testator did indicate a single pattern. There is a similarity in the distribution of the residuary trust remainder under the three subdivisions of article 'Eighth'. In the first by the words 'then living' he provided for a per capita distribution to his stepson's children who constituted that class at time of distribution without regard to the issue of any predeceased child. In the second and third subdivisions by the same words 'then living' he provided for distribution to his brother's descendants and his nephew's descendants respectively, also per capita, and here without regard to a parent of any descendant being alive.

In view of all of the foregoing, the Court, far from finding in the will any glimpse of an intent to provide for distribution per stirpes of the remainder share under subdivision (2) of article 'Eighth', holds that testator intended distribution thereof per capita, thus entitling the wards of the special guardian to share equally with their mother in the principal of the remainder share and in the income accruing after the death of the life tenant. All prior income is payable to the personal representatives of the life tenant. The will is construed accordingly. The fixation of attorneys' fees for services rendered to petitioner will await further proceedings. The relief requested in respect of the sale or abandonment of certain stock described in the petition is granted. Proceed accordingly.

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Court Interprets Will Provisions

March 19, 2015,

Probate Lawyers said this is a proceeding to construe Article Sixth of testator's will which was admitted to probate on March 9, 1961. By said article testator bequeathed his residuary estate in trust, to invest and reinvest 'and to pay to my beloved wife so much of the income therefrom as she may require for her proper maintenance and support during her lifetime. It is my purpose and intent that my said beloved wife shall at all times have sufficient income paid to her regularly so that she may properly maintain herself in comfort. Testator then directed his trustees to resort to the principal of the trust should the income be less than $6,000 per year or in the event his said wife shall because of her personal health require hospitalization or medical care so that the $6,000 per annum is not sufficient to support her. Said Article Sixth then concludes as follows:
This provision for the benefit of my said wife is made and intended to be in lieu of any statutory or other rights in my estate conferred upon her by the laws of the State of New York. In the event that my said beloved wife shall be dissatisfied with the provision made for her hereunder and seek to contest this will, or refuse to accept the provision made hereunder under her statutory rights, in such event she shall be entitled to her statutory share of my estate and to no more, which statutory share of my estate is to be received by her in lieu of the provision made hereunder.

A New York Estate Lawyer said on May 12, 1966 testator's wife served a notice upon the executors herein wherein she states among other things that she is dissatisfied with the provisions made for me therein (in Article Sixth) and refuse to accept same, and demand that I be paid in lieu thereof an amount equal to a statutory share, in an amount equal to one-third of the net estate together with such amount and property to which I am entitled under section 200 of the Surrogate's Court Act.

Queens Probate Lawyers said between the date when letters testamentary were issued to testator's wife, son and daughter, the petitioners herein, and the time when the above notice was served and filed herein, no other election was made by testator's wife, the trust mentioned in Article Sixth has not been established, and the executors have not rendered an account herein. The problem propounded concerns the interpretation of Article Sixth of testator's will and whether it was testator's intention to give his wife a choice of accepting the benefits of the trust provision in said Article Sixth or, if she was dissatisfied with said provision or refuses to accept same, to demand that she be paid outright an amount equal to her intestate share of the estate. The petitioners contend that the latter interpretation is the correct one and pray that the Court so construe the will. There is no opposition to this application.

A Staten Island Probate Lawyer said that the decisions uniformly hold that each will construction depends upon the language of the will itself, with the surrounding circumstances, and is to be decided in accordance with the intentions of the testator, giving weight to the language of the entire will. It appears that at the time of his death testator was possessed of substantial stock and bond holdings which passed to his son and daughter under the provisions of Article Fifth of his will and that there remained no residuary estate with which to establish the trust testator clearly wanted created to provide for her (his wife's) proper maintenance and support during her lifetime. Testator further set forth that it is my purpose and intent that my said beloved wife shall have sufficient income paid to her regularly so that she may properly maintain herself in comfort' indicating that she was clearly the primary object of his bounty. And when he provided that if his wife is dissatisfied with the provision made for her hereunder or refuses to accept the provision made hereunder she shall be entitled to her statutory share of my estate' he intended to give his wife a choice to take the benefits of the trust provision or her intestate share (Matter of Golder, 3 Hun 441; Matter of Owens' Estate, 186 Misc. 777, 65 N.Y.S.2d 221; Matter of Gahan's Will, 276 App.Div. 647, 97 N.Y.S.2d 232; 36 A.L.R.2d 151, 168; cf. Beetson v. Stoops, 186 N.Y. 456, 79 N.E. 731; Havens v. Sackett and Havens, 15 N.Y. 365; Matter of Ballard, 194 App.Div. 106, 185 N.Y.S. 718; Matter of Smith's Estate, 150 Misc. 367, 269 N.Y.S. 270, 110 A.L.R. 1317), and she was not required to serve and file a notice of election therefor under section 18 of the Decedent Estate Law. (In re Willoughby's Will, Sup., 45 N.Y.S.2d 177, affd. 268 App.Div. 1046, 52 N.Y.S.2d 793; Matter of Collins, 13 N.Y.2d 194, 245 N.Y.S.2d 384, 195 N.E.2d 53.)

The Court is of the opinion that the failure of the widow to sooner make her choice under the terms of the will does not prevent her from now doing so (Oliver v. Wells, 254 N.Y. 451, 459, 173 N.E. 676, 679). The Court, therefore, determines that the widow is entitled to receive an amount equal to her intestate share of the net estate in accordance with the demand contained in her notice served as aforesaid upon the executors on May 12, 1966.

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Court Decides Testator's Widow has Right to Take Interstate Share

March 18, 2015,

Probate Lawyers said this is an incident to the judicial settlement of their account the executors seek a determination with respect to the validity of the trust created by testator under paragraph 'Second' of the will and the effect of the widow's notice of election thereon. Said paragraph is the residuary clause and the only dispository provision of the will.

The testator made and executed his will in the state of New York where he was domiciled in 1947. He died in 1954 in the state of Virginia, where he then resided with his wife and five children. At the time of his death testator was possessed of real and personal property situated in both states. Testator's will was probated in this Court on July 28, 1954. Thereafter, the original will was transmitted to Virginia and also probated in that state on or about October 9, 1954.

A New York Estate Lawyer said in the probate proceedings had in Virginia, testator's widow renounced the provisions made for her under the will and elected to take her intestate share. Under the laws of Virginia surviving spouse may elect to take against a will if it provides less than the intestate share of one-third unless such right to elect has been lawfully barred or relinquished (Code of Virginia, §§ 64-20, 64-27, 64-32).

Manhattan Probate Lawyers said the testator's widow has filed a notice of election in this Court pursuant to Decedent Estate Law, § 18, to take her intestate share with respect to testator's property situated in New York State, upon the ground that the provisions of the will against her remarriage violate her statutory rights in the estate.

By paragraph 'Second' testator devised all his estate in trust and empowered his trustees in their discretion to retain, lease or sell and to reduce to cash any of his assets, both real and personal. The testator further provided therein as follows: the net income therefrom is to be paid over unto my beloved wife for her maintenance and for the maintenance and education of my then surviving children so long as my wife shall remain unmarried. In the event my beloved wife remarries the income is to be divided equally among my then surviving children and to be used for the support of said children until the youngest of them shall have reached his majority. The will further provides that upon the youngest child attaining his majority the corpus of the trust is to be distributed one-half to the surviving children per stirpes and one-half to testator's widow provided she is unmarried at that time. In the event she has remarried, then the entire estate is to be distributed among the then surviving children per stirpes and not per capita.

Bronx Probate Lawyers said it is contended that the limitation of the duration of the trust until testator's youngest child attains his majority is an unlawful suspension of the power of alienation in excess of the period prescribed by statutes (Real Property Law, § 42; Personal Property Law, § 11) and that by reason thereof, the entire estate should be distributed as if testator had died intestate.

A proper determination of the issues involved requires a consideration of the effect of testator's foreign residence at the time of his death upon the construction of his will and the widow's election to take against it. Under the laws of New York State the validity or construction of a will is not affected by a change of residence made since its execution (Decedent Estate Law, § 24). The statute is remedial and must be liberally construed (Matter of Duke's Estate, 181 Misc. 529, 41 N.Y.S.2d 745). The meaning of the language of the instrument must be ascertained by a reference to the law which the testator had in mind, and with which he was familiar at the time of the execution thereof. In the instant case, testator is deemed to have been familiar with the law of New York which was his domicile at the execution of the will (New York Life Ins. & Trust Co. v. Viele, 161 N.Y. 11, 55 N.E. 311; Matter of Kadjar's Will, 200 Misc. 268, 270, 102 N.Y.S.2d 113, 116, affirmed 279 App.Div. 1008, 113 N.Y.S.2d 245; Matter of Good's Estate, Sur., 96 N.Y.S.2d 798, 801, affirmed 278 App.Div. 806, 104 N.Y.S.2d 804, affirmed 304 N.Y. 110, 106 N.E.2d 36; Restatement, Conflict of Laws, § 308.1; David's N. Y. Law of Wills, Vol. 1, p. 741). It has further been held that no distinction need be made with respect to whether the property is personalty or realty (Putnam v. Lincoln Safe Deposit Co., 34 Misc. 333, 69 N.Y.S. 808, affirmed 66 App.Div. 136, 72 N.Y.S. 968, reversed on other grounds 191 N.Y. 166, 83 N.E. 789).

At the time that testator executed his will his real estate holdings in this state were substantial. The effect to be given to his will with respect to the realty is determined by the law of its situs (Matter of Haldeman's Will, 208 Misc. 419, 143 N.Y.S.2d 396; Decedent Estate Law, § 47) without regard to the residence of testator at the time of his death (Matter of Wuppermann's Estate, 164 Misc. 900, 300 N.Y.S. 344; Matter of Culley's Will, 182 Misc. 998, 48 N.Y.S.2d 216). Where testator dies seized of real property in several states the courts of each state may construe the will as to the realty situated in its own state (Matter of Good's Will, 304 N.Y. 110, 116, 106 N.E.2d 36, 39, supra; In re Ellis' Estate, Sur., 139 N.Y.S.2d 640; De Vaughn v. Hutchinson, 165 U.S. 566, 570, 17 S.Ct. 461, 41 L.Ed. 827; Beale's Conflict of Laws, Vol. 2, §§ 251.3, 251.4, pp. 974, 975). The will confers on the trustees discretionary power to sell 'both real and personal' property. In the absence of an imperative direction to sell, there is no equitable conversion (Matter of Tatum, 169 N.Y. 514, 518, 62 N.E. 580, 581). Thus the proceeds derived from the sale of any part of testator's realty situated in this state constitute realty.

The language used by testator in the will is a mixture of layman's expressions and incomplete legal terminology, nevertheless, testator's intention to dispose of all of his property by will and not to die intestate is clear. If two or more constructions are reasonably possible that interpretation is preferred which avoids either total or partial intestacy (Matter of Gallien, 247 N.Y. 195, 200, 160 N.E. 8, 9; Roe v. Vingut 117 N.Y. 204, 212, 22 N.E. 933, 934; Phillips v. Davies, 92 N.Y. 199; Greene v. Greene, 125 N.Y. 506, 26 N.E. 739; Morton v. Woodbury, 153 N.Y. 243, 47 N.E. 283). The clear intention of the testator must be given effect regardless of his use of inept language or words in expressing his testamentary plan (Matter of Birdsell's Will, 271 App.Div. 90, 63 N.Y.S.2d 146, affirmed 296 N.Y. 840, 72 N.E.2d 26, no opinion).

Testator's five children were all in being at the time the will was executed and at his death. The limitation of a trust during[10 Misc.2d 426] the minority of the testator's youngest child has been construed as if the will provided that the trust was to continue until the person upon whose life it is limited attains the given age, or sooner dies (Sawyer v. Cubby, 146 N.Y. 192, 40 N.E. 869; Matter of Bahrenburg, 130 Misc. 196, 197, 224 N.Y.S. 183, affirmed 214 App.Div. 792, 210 N.Y.S.2d 824, affirmed 244 N.Y. 561, 155 N.E. 897; and cases therein cited.) It is further evident from the language used by the testator in his will that he intended to have the trust continued for the benefit of his children until the youngest attained majority irrespective of whether the widow was to share in said trust. Testator provided in his will that if his wife remarried the 'income' of the trust is to be used for the support and maintenance of his children 'until the youngest of them shall have reached his majority.' The testator's intention to create a trust not exceeding the lifetime of his wife or until his youngest child attains his majority is lawful.

The bequest to the widow is conditioned upon her widowhood. A testamentary bequest terminable upon remarriage is not such a gift as will defeat the right of the surviving spouse to elect to take against the will pursuant to Decedent Estate Law, § 18 (Matter of Ferrara's Estate, 165 Misc. 900, 1 N.Y.S.2d 900; Matter of Kent's Estate, 180 Misc. 567, 45 N.Y.S.2d 449; Matter of Wittner's Estate, 301 N.Y. 461, 95 N.E.2d 798). The statute embodying section 18, Decedent Estate Law, is also remedial and must be liberally construed in favor of the surviving spouse and in this connection the change of residence of the testator has no effect upon the right to elect thereunder (Matter of Tamburri's Will, 198 Misc. 809, 100 N.Y.S.2d 647; In re Weiss' Will, Sur., 64 N.Y.S.2d 331; Matter of Slade's Estate, 154 Misc. 275, 276 N.Y.S. 956; Matter of Ineson's Estate, 198 Misc. 999, 104 N.Y.S.2d 12; American Historical Soc. v. Glenn, 248 N.Y. 445-451, 162 N.E. 481, 483; Archer v. Equitable Life Assurance Soc., 218 N.Y. 18, 25, 112 N.E. 433, 436.) The rights of testator's beneficiaries in cases of excessive gifts to charity have been safeguarded by giving a liberal construction to Decedent Estate Law, § 17, without regard to domicile of the beneficiaries (Decker v. Vreeland, 220 N.Y. 326, 115 N.E. 989). The same rule of construction should be applied with respect to Decedent Estate Law, § 18.

The Court determines that testator's widow has an absolute right to elect to take her intestate share pursuant to Decedent Estate Law, § 18. However, such election does not destroy the remainder of the trust provided for by testator's will for his infant children. The trustees will be directed to deduct the widow's elective share from the proceeds of the realty sold by them and to hold the remainder of testator's real property or the proceeds thereto in trust pursuant to and in accordance with the terms of the will. Since the Court holds that the trust for testator's infant children is not affected by the widow's election it is not necessary to determine at this time whether the remainders are vested or contingent (Matter of Mount's Will, 185 N.Y. 162, 77 N.E. 999). Settle decree on notice.
Stephen Bilkis and Associates together with Kings County Probate Attorneys handles probate of last wills and testament, they are experts and well-trained in solving legal questions involving probate of last will and testament and similar matters. In addition, our Kings County Estate Lawyers solves disputes involving estate left by the decedent; visit our offices located around New York Metropolitan, including Corona, for free legal consultation or contact 1800.NY.NY.Law or 1800.696.6529 to schedule an apoointment