A New York Probate Lawyer said from the records, these are two cases involving estate litigation. In the the first probate proceeding, a construction has been requested. The will directs that the residuary estate be given to the testator’s wife, and in the event of a common disaster, to the testator’s daughter. The wife’s death occurred prior to the testator’s but the will contains no provision to cover this contingency. The disposition of the estate is further complicated by the following paragraph of the will: ‘FIFTH: I have not mentioned my son in this Will because he is completely paralyzed and is unable to take care of himself, and after the death of myself and my wife, my daughter has promised to take care of my son, and I know she will keep her promise.’
A New York Estate Lawyer said that the court ruled that, ‘The first rule of testamentary construction, of course, is that a will be interpreted to reflect the actual intention of the testator and the second that this intention be ascertained from a reading of the document as a whole. If a ‘general scheme’ be found, it is the duty of the courts to carry out the testator’s purpose, notwithstanding that ‘general rules of interpretation’ might point to a different result.’
In the Matter of D’Allesandro, the will similarly did not provide for the contingency that ensued. The court stated: ‘There are many instances in which a testamentary disposition, made in a contingency which is provided for but did not occur, is held to apply by necessary implication to a contingency which did occur although not provided for in the will.’
The guardian ad litem of the son, contends in his report that, since the will does not cover the present situation, the testator should be declared to have died intestate. However, a finding of intestacy will result in exactly a situation which the testator expressly sought to avoid, namely, that his son receive a direct share of his estate. The language of paragraph fifth does not impose any legally binding condition on the daughter but is held merely precatory in nature. The will is construed as intending a gift by implication to the daughter of the residuary estate absolutely.
Finally, the court has received affidavits relating to the competency of one of the attesting witnesses. An accompanying letter signed by the witness’ wife verifies the signature on the will as that of her husband’s. Pursuant to SCPA 1405, the court will admit the will to probate on the strength of this verification and the testimony of the remaining witness.
In the second case, a motion is made to strike out a counterclaim interposed in this action wherein complainant seeks to compel the executrix to deliver to her a bank passbook of an account in the Interest of a Trust Company. It is alleged that such executrix have possession of the passbook, without which the complainant cannot withdraw the fund, and that they have refused to deliver it to her upon demand.
Westchester County Probate Lawyers said the defense answer admits all of the allegations of the complaint except that she ‘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 it allege the opening of the account by deceased in form in trust for the complainant, as well as the making of the will herein above referred to. They further allege that objections to the probate of the will have been made by certain persons, who would be the intestate distributees of deceased, of whom complainant is not one; that such objections, among other things, challenge her testamentary capacity; that the funds going into the bank deposit set up for her derived from a sale of real property of the deceased, and that no part thereof ‘was produced or provided by the complainant;’ 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 defense have been presented with adverse claims to the funds represented by such bank account by both complainant and such distributees of deceases, 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.’ The defense 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.’
Suffolk County Probate Lawyers said the complainant objects that the aforesaid matter does not constitute a proper counterclaim ‘for the reason that it does not raise questions between the said executrix and the complainant herein, along with the interpleaded parties’; also that it does not constitute a legally valid counterclaim against the complainant. The primary test of a counterclaim, of course, is that it must be sufficient to support an independent cause of action against the person or persons against whom it is asserted. This includes ‘a plaintiff or a plaintiff and another person or persons alleged to be liable’.
The attacked pleading meets that test. The facts asserted would support an independent action of interpleader as it formerly existed, which is not ousted by the new statutory practice, or an action to determine a disputed claim of title to personal property. The procedure in the form followed under the new (and concurrent) practice governing interpleader is consequently correct. This disposition is without prejudice to any application which complainant may make, if so advised, as to the alleged default in pleading on the part of the interpleaded parties. Motion denied. Settle order on notice.
Stephen Bilkis & Associates, with offices located throughout New York, handle cases of estate administration, will contest, and such other matters relating to probate. Its well trained Kings County Estate Administration Lawyers and its New York Probate Attorneys are willing to give you sound advise or any legal assistance.