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This is a proceeding to construe the last will and testament of a testatrix who died on April 18, 2010, survived by five children. Her will, dated September 1, 2006 (the “Will”), was admitted to probate on July 2, 2010 and letters testamentary issued to petitioner, one of her children. Article SECOND of the Will established a credit shelter trust for her husband, with remainder to her children. Article THREE left the “rest, residue and remainder” of her estate to her husband outright. Her husband predeceased her and she provided in Article FOURTH that if her husband predeceased her, she left “all the rest, residue and remainder of my estate, real, personal and mixed and wheresoever situated”

The estate is sufficiently large to generate a New York State estate tax. Article FIFTH of the will provides that “All estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of my estate”. The executor asks that the Court construe the gift to real property to the devisee in Article FOURTH(A) as a preresiduary gift and the remainder clause of Article FOURTH(B) as the residuary estate. The executor brings this construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

In the Will in question, Article FIFTH directs that the payment of estate taxes be paid from the residuary estate. The problem is that the Will contains two residuary clauses. The first is found in the preamble to Article FOURTH, which disposes of the “all rest, residue and remainder of my estate, real , personal and mixed and wheresoever situated” of the testator’s estate if the testator’s husband predeceased the testator. The second is Article FOURTH(B), which purports to dispose of the “rest and remainder” of the testator’s estate after the devise of real property in Article FOURTH(A).

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In this Probate case, Petitioner moves for summary judgment on her entitlement to take an elective share of the decedent’s estate pursuant to EPTL 5-1.1-A. Petitioner filed a petition seeking a decree determining that she is entitled to take her elective share against the estate, and that her notice of election was properly served, filed and recorded as provided by law.

The respondents filed a verified answer alleging various affirmative defenses1 and counterclaims seeking to: (1) have the alleged marriage between the decedent and petitioner deemed null and void ab initio, and to annul the marriage nunc pro tunc; (2) dismiss the petition in its entirety; (3) vacate petitioner’s notice of election; and (4) award the estate damages for the costs of this proceeding. Alternatively, if petitioner is not disqualified as a surviving spouse, they seek an award of compensatory damages equal to the elective share, plus interest and costs of the proceeding for the loss to the estate resulting from petitioner’s fraudulent conduct.

The decedent died on June 16, 2006, survived by two sons, the coexecutors herein, and four grandchildren from a prior marriage. Petitioner served as the decedent’s caretaker during the last decade of his life. The decedent’s will dated July 10, 1982, was admitted to probate on October 30, 2006. Letters testamentary were issued to the nominated coexecutors on that date. The decedent’s children and grandchildren were the sole beneficiaries under the will.

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Submitted for decision in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by him.

Mrs. VY died on August 27, 2003 a resident of Massapequa, New York. Her son, petitioner DJ, and her daughter, KR, survived her. Her will of September 30, 1970 and a codicil thereto-dated June 22, 1972 were admitted to probate on November 12, 2003 and letters testamentary issued to petitioner. The will provides that the residuary estate be divided equally between the two children but that KR, if unmarried, be given a two year right to occupy the decedent’s Massapequa home provided she pay real estate taxes. KR resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

As with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement.

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In an action to recover damages for medical malpractice and lack of informed consent, etc., in which the defendant SSS Medical Center commenced a third-party action against KC, as successor executor of the estate of Mr. RR, KC appeals from an order of the Supreme Court, dated May 1, 2009, which, inter alia, denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of Mr. RR terminated by operation of law.

On July 18, 2002, the plaintiff Mr. T underwent surgery at SSS Heights Medical Center (hereinafter SSS), and Mr. RR served as his anesthesiologist. Mr. RR died on October 1, 2002. On October 21, 2002, Mr. RR’s father, Mr. X, as executor of Mr. RR’s estate, petitioned the Surrogate’s Court, New York County, to have Mr. RR’s will admitted to probate. The petition to admit the will to probate stated that Mr. RR died while a domiciliary of New York, and that KC was named in the will as successor executor. By decree dated November 25, 2002, the will was admitted to probate, and on November 26, 2002, letters testamentary were issued to Mr. X. Thereafter, Mr. X died.

In 2003 the plaintiffs commenced the main action against, among others, SSS. In 2008, SSS commenced the instant third-party action against KC (hereinafter the appellant), as successor executor of Mr. RR’s estate, seeking common-law indemnification. The appellant, a resident of Colorado, retained Colorado attorneys X&Y. On behalf of their client, X&Y entered into a stipulation with SSS, in which, inter alia, the appellant admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for Mr. RR. The stipulation also stated that SSS “will seek no recovery from the Estate of Mr. RR, M.D., except to the extent of any professional liability insurance available to the Estate of Mr. RR, M.D., deceased.”

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Motion is made to strike out a counterclaim interposed in this action wherein plaintiff seeks to compel defendants to deliver to her a bank passbook of an account in the Interest Department of the ABC Trust Company of Albany issued to and opened in the name of ‘Ms. B, in Trust for Ms. OD.’

Ms. OD is the plaintiff and Ms. B is now deceased. The defendant Mrs. V is the named executrix in the last will and testament of Ms. B, which has been offered for, but as yet has not been admitted to, probate. The co-defendant Mrs. M, an attorney, drew such will, was a subscribing witness thereto, and is acting as the attorney for Mrs. V in offering it for probate. It is alleged that such defendants have possession of the passbook, without which plaintiff cannot withdraw the fund, and that they have refused to deliver it to her upon demand.

The defendants’ answer admits all of the allegations of the complaint except that plaintiff ‘is entitled to possession of the said bank book’ and it also contains certain matter asserted as ‘a separate defense and by way of counterclaim.’ In that contention defendants allege the opening of the account by Ms. B in form in trust for plaintiff, as well as the making of the will hereinabove referred to. They further allege that objections to the probate of the will have been made by certain persons, to wit, KK, QQ and ET, who would be the intestate distributees of Ms. B, of whom plaintiff is not one; that such objections, among other things, challenge her testamentary capacity; that the funds going into the bank deposit set up for plaintiff derived from a sale of real property of the deceased, and that no part thereof ‘was produced or provided by the said Ms. OD;’ that the bank account was set up approximately two months prior to the execution of the will; that if such objections to it are sustained the validity of the disposition of the aforesaid bank account likewise will be attacked; that the defendants have been presented with adverse claims to the funds represented by such bank account by both plaintiff and such distributees of Ms. B, and that they ‘cannot determine, without hazard to themselves, the right of the said persons to the said property and are exposed to double liability as the result of such adverse claims.’ Defendants assert their willingness to deliver the passbook and the fund it represents to whomsoever shall be adjudged entitled to it. They allege that they have impleaded the distributees who make the adverse claims as aforesaid by service upon them of a summons and interpleading complaint, together with a copy of the original summons and complaint served upon them in this action.’

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The petition herein prays for the judicial settlement of the accounts of the trustees and for a construction of the validity and effect of the last will and testament of testator and the appointment thereunder of Mr. E Jr. and for the issuance of letters of trusteeship to Mrs. E Jr. and for the setting of compensation of the attorneys.

The instant proceeding was brought by the petition of United States Trust Company from New York as the surviving trustee of the trust created by the will of Mr. E Sr. for his son Mr. E Jr. for (1) an instruction to the trustees as to the validity of the purported exercise by the will of Mr. E Jr. of a testamentary power of appointment pursuant to the testator’s will, (2) a judicial settlement of the accounts of the trustees, and (3) a determination of the commissions payable to the petitioner as surviving trustee.

It appears that the infants who are represented by the guardian ad litem are interested in the instant proceeding by reason of the following circumstances:

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In this contested probate litigation proceeding, three motions are before the court. Decedent died on August 8, 1956 survived by several brothers and sisters and by an alleged spouse, the objector herein, to whom she was married on August 8, 1953. The propounded paper, dated November 9, 1955, makes no provision for the objector and recites, as the reason therefor, the decedent’s belief that the objector was not truly her husband since he had previously been married. The decedent further expressed her belief that objector had abandoned his wife in Italy and that his first marriage had never been legally terminated.

Issue has been joined by the interposition of an answer alleging lack of testamentary capacity, fraud, duress and undue influence and claiming an interest in the estate as the spouse of the deceased.

Proponent now moves to dismiss the objections on the ground that objector has no status. Decision on this motion and that of the objector to examine the subscribing witnesses will be withheld pending a determination on the issue of status.

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At issue in this proceeding is the right of the trustees of the estate of the donor of a power of appointment to commissions for paying out the appointive property to trustees appointed under the will of the donee of such power.

Testator Mr. S died in 1952. His will admitted to probate in this Court created out of his residuary estate a marital deduction trust for his wife Mrs. S–one coupled with a general testamentary power of appointment. For later discussion, it is observed that under such a power Mrs. S could appoint to her estate or to her creditors or to creditors of her estate or to any other person she may wish. Under the express terms of the will she could also appoint outright or in further trust.

Mrs. S died on June 11, 1969, a resident of Connecticut. Her will has been admitted to probate in the Connecticut courts. By her will she expressly exercised her power of appointment. She first directed her own trustees to pay out of the appointive property all estate taxes on both the appointive property and her own estate assets. She then directed her Own trustees to divide the remaining principal of the appointive property into four shares, each such share to be held in further trust for her four grandchildren with remainder over to her great grandchildren. There are ten such great grandchildren remaindermen represented in this proceeding by a guardian ad litem. Mrs. S appointed as her own trustees the same persons who were already acting as trustees under Mr. S’s will.

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The case involves three issues, first, the probate of a will despite absence of witness to testify for the authenticity of the will. Second, the disallowance of a will alleged to have made under undue influence by the decedent’s heirs. Third, the denial of appeal based on forum non conveniens.

On the first issue, the Court ruled that the propounded instrument offered for probate dated March 28, 1925 was executed thirty-eight years ago. Proof has been submitted that one of the subscribing witnesses is deceased and the whereabouts of the other witness is unknown. The genuineness of decedent’s handwriting and of the deceased witnesses has been proved.

The missing witness had been associated with decedent for approximately two years prior to the execution of the propounded instrument. Thereafter, he had expressed an intention to return to his native country of Scotland. Due to the long span of years since the execution of the instrument proof of the handwriting of the witness could not be obtained despite diligent efforts by proponent to do so.

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Nonparty GA, administrator of the estate of MD, moved by way of order to show cause for an order: 1) cancelling the notice of pendency filed against the subject property on 19 May 2008 by plaintiff CM Inc., successor in interest by merger to AA Mortgage Group, Inc.; and 2) permanently barring as a lien and discharging of record a certain mortgage on the property dated 22 August 2007 given to plaintiff’s predecessor-in-interest by defendant TM, notwithstanding a recorded satisfaction of same dated 4 December 2007.

MD was the owner of the subject property located at 748 Decatur Street in Brooklyn, having taken sole title as tenant by the entirety following the death of her husband, PD.

On 9 February 2006, MD died.

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