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RL died a resident of Wyoming County on January 18, 2006. His Last Will and Testament dated October 3, 2005 was admitted to probate in this court on April 3, 2006. Under the terms of his will the testator divided his estate in equal shares for his three children, but established a testamentary trust for the share for the benefit of his son, JB. The trust provides for the distribution of income as well as principal for the benefit of JB and is not a Supplemental Needs Trust (SNT) as authorized and defined in EPTL 7-1.12.

Although there has been no formal appointment of a guardian for JB pursuant to SCPA Article 17-a or Mental Hygiene Law Article 81, he is alleged to be a person under disability and receives Supplemental Security Income (SSI) and Medicare benefits as a result of his disability. There is no indication that JB is receiving or has received Medicaid or other, local benefits through the Wyoming County Department of Social Services (DSS) or other agency.

The facts are not in dispute and the matter is before the court on cross-motions for Summary Judgment pursuant to CPLR 3212. The two issues presented are:

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In a probate proceeding in which an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, for ejectment, and for injunctive relief was transferred from the Supreme Court, Kings County, to the Surrogate’s Court, Kings County, the defendants appeal, as limited by their brief, from so much of an interlocutory judgment of the Surrogate’s Court, Kings County, dated January 28, 2010, as, after a nonjury trial, and upon a decision of the same court dated May 19, 2009, determining that a certain deed dated June 6, 2002, is null and void and dismissing their first affirmative defense, and upon a decision of the same court dated October 13, 2009, determining that a certain deed dated May 9, 2001, was not procured through the exercise of undue influence and dismissing their third affirmative defense, is in favor of the plaintiff and against them determining that the plaintiff holds in fee simple absolute certain real property as described in the deed dated May 9, 2001.

“In reviewing findings made following a nonjury trial, this Court may render the judgment it finds warranted by the facts, taking account in a close case the fact that the trial judge had the advantage of seeing the witnesses”. In this case, the testimony established that the deed dated June 6, 2002, was not “entitled to be recorded” until it was resubmitted with the appropriate fees attached. Accordingly, upon our review of the record, we find no error in the determination of the Surrogate that since the deed dated June 6, 2002, was not recorded, it was not delivered to the defendants prior to the decedent’s death.

The court said we decline to disturb the Surrogate’s determination that the deed dated May 9, 2001, was not procured by undue influence. The defendants failed to submit evidence supporting their contention that a confidential relationship existed between the plaintiff and her parents, who executed the deed, or that the deed dated May 9, 2001, was procured by the exercise of undue influence.

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This action is brought to restrain the violation or the threatened violation by the defendant of a certain restrictive covenant claimed by plaintiffs to affect the lots or parcels of land within an area located in the Borough of Brooklyn now or heretofore known as “Manor’”. The area in question is bounded on the west by Flatbush Avenue, on the north by Lincoln Road, on the east by Rogers Avenue and on the south by Fenimore Street.

In the year 1893, the decedent died testate seized of said real property. His will was duly admitted to probate by the Surrogate of the County of Kings. By said will the testator’s real property was devised to his children and his executors were given a power of sale.

On or about April 28, 1899 said executors caused to be filed in the office of the Clerk of the County of Kings a map entitled ‘Map of Property Belonging to the Estate of the decedent.’ By said map, the land within the area was subdivided into building lots. All of the lots within the tract, except those fronting on Flatbush Avenue, were conveyed by deeds containing a restrictive covenant in form as follows: ‘The party of the second part (Grantee) agrees that neither he nor his heirs or assigns will erect or cause or suffer to be erected on any part of the premises hereby conveyed any building or erection other than a private dwelling house for one family only.’

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The petitioner, a sister of the testator, presents an unwitnessed holographic instrument executed January 9, 1968 (‘January instrument’) and also a duly executed instrument (which has been proved as a will) dated February 20, 1968 (‘February will’). The January holographic instrument necessarily must be denied probate. It was executed in New York; the decedent was not a member of the armed forces; it is unwitnessed. (EPTL 3–2.2, 3–2.1.) As already noted the February will has been duly proved.

The January instrument disposes ‘of my entire personal estate’ to petitioner. The February will provides: ‘FIRST: I ratify and confirm all wills heretofore made by me at any time in every respect, except insofar as the same is inconsistent with the provisions of this codicil. SECOND: I direct that any monies realized from any and all Stocks and Bonds in my name be divided equally between: (listing three brothers and his sister).’

The petition presents an issue under the doctrine of ‘incorporation by reference’ as applied to wills. (see Law Revision Commission Report (1935) p. 431 et seq.; 1963 Report Bennett Comm.; Rept. No. 6.1B pp. 286–350.)

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The defendant moves for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs’ complaint fails to state a cause of action. The complaint alleges that plaintiffs are sons of the decedent, there is no indication that they are the only children, and that decedent prior to her death employed the defendant, an attorney, to prepare a will for her execution. It is claimed that decedent directed the defendant to provide for a residuary clause naming plaintiffs as legatees thereof. The decedent could neither read nor write English and she executed the will relying, it is claimed, on defendant’s representation that the residuary clause had been prepared as directed whereas, in fact, the residuary clause was omitted from the will. Although decedent has been dead since January 30, 1961, there is no allegation that the purported will has been admitted to or offered for probate. No copy of the purported will is attached to the complaint nor are any of its provisions pleaded so that the court may know what provisions, if any, were made for the plaintiffs in the purported will. No allegation is made as to the identity of the decedent’s heirs-at-law who would succeed to the residuary estate in the absence of a provision for the disposition thereof in the will.

The issue in this case is whether defendant’s motion for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs’ complaint fails to state a cause of action should be granted.

The plaintiffs urge the sufficiency of their complaint on the basis of two California cases. They claim that Goldberg v. Bosworth, 29 Misc.2d 1057, 215 N.Y.S.2d 849 (Special Term, Supreme Court, Kings County, 1961) follows the California decisions. In the Biakanja case, a will was denied probate because the defendant who drew it, a notary public, not an attorney, notarized the will instead of having it subscribed by attesting witnesses. The plaintiff was the sole legatee named in the will and by reason of the denial of probate resulting solely from defendant’s action, he received one-eighth of the estate instead of all of it. The defendant was held liable. In the Lucas case, the defendant attorney in attempting to create a testamentary trust violated the rule against perpetuities and the trust was held invalid. The beneficiaries thereof brought suit. The court sustained the complaint on the theory that the beneficiaries, although not in privity with the defendant attorney, were the primary objects of testator’s bounty and thus the express beneficiaries of the agreement between the testator and defendant attorney for the execution of the will.

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In a proceeding for the judicial settlement of the final account of the preliminary executors and the executors of the will of the deceased, for the period from November 1, 1995, through May 28, 1999, the petitioner appeals, as limited by his brief, from so much of an order of the Surrogate’s Court, Kings County, dated February 9, 2004, as denied his motion for summary judgment fixing his compensation as preliminary executor in the sum of $2,563,803.81 and granted that branch of the cross motion of Long Island College Hospital, Polytechnic University, Chemical Heritage Foundation, and the Attorney General which was for summary judgment limiting his compensation for all services as an executor of the decedent’s will, whether performed as a preliminary executor or as an executor, to the sum of $400,000.

The petitioners, were named co-executors in article fourteen of the decedent’s will, which provides: “The commissions payable to my executors shall be according to the New York statute then in effect, but shall in no event exceed the sum of $800,000, which amount shall be divided between my executors, if more than one shall be serving, as they may agree, recognizing the extent of the duties and the relative difficulty of the duties assumed by each or done by each in his respective tenure in office, and the remaining duties and their extent remaining after his tenure, and I direct that each executor agree in writing to that provision as a condition of qualifying.” In the event either or both nominated executors failed to qualify, nonparty Fiduciary Trust Company International of New York was named as an alternate executor. Following the death of the decedent, petitioners offered the will for probate on November 3, 1995. On the same day, they filed a petition for preliminary letters testamentary.

Preliminary letters testamentary were issued on November 20, 1995. The will was admitted to probate on July 8, 1996. The preliminary letters were vacated, and letters testamentary were issued to petitioners. On November 4, 1996, petitioner filed a renunciation of compensation provided under the will pursuant to SCPA 2307 (5). The other petitioner did not renounce the provision limiting his compensation as executor. On November 25, 1996, the executors, petitioners filed a successful ex parte petition for advance payment of commissions pursuant to SCPA 2311, requesting that each executor receive $200,000 on account of their commission. In his supporting affidavit, petitioner purported to preserve his right to statutory commissions under SCPA 2307 by reason of his renunciation. In July 1999, when the executors filed an account of their administration of the estate and petitioned for the settlement of their account, petitioner requested that he be awarded full statutory commissions of $5,323,112, less the $200,000 advance. Wagner only requested that the court award him $400,000 in compensation as provided in the will, of which $200,000 had been paid. The residuary beneficiaries of the estate, several charitable entities, including Long Island College Hospital, Polytechnic University, and the Chemical Heritage Foundation, as well as the Attorney General, statutory representative of charitable beneficiaries (hereinafter collectively the Charities), objected to the accounting, inter alia, on the ground that petitioner was not entitled to statutory commissions. The Charities contended that the will limited compensation to the sum of $800,000, petitioner was required to either accept the compensation cap or not serve at all, and because he petitioned for preliminary letters testamentary in which he swore that he was entitled to letters testamentary immediately upon the probate of the will, he satisfied the condition precedent to qualifying by implicitly accepting the compensation provided in the will, notwithstanding his renunciation.

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In this action for a declaratory judgment, plaintiffs appeal from a judgment where, following a trial on stipulated facts, the court dismissed the complaint. Plaintiffs are the only children of the husband and wife, both now deceased. The wife died first and the husband thereafter. Defendant is the second wife and the other defendant is the executor of the last will and testament of said husband.

Upon the death of the husband, plaintiffs commenced the within action seeking a declaration of their rights with respect to the husband’s estate. The complaint consisted of four causes of action, as follows: (1) To impress a constructive trust upon certain real property located at 141 Forest Green, Staten Island; (2) To void the right of election filed by defendant second wife under section 5-1.1 of the Estates, Powers and Trusts Law as surviving widow of the husband; (3) To impress a constructive trust upon the proceeds of a pension plan of the deceased husband had with the City of New York, which were paid to Anne as designated beneficiary at the husband’s death.; (4) To impress a constructive trust upon funds which prior to the death of the first wife had been in savings and/or checking accounts in the joint or individual names of the husband and wife, and upon other personal property which had been in the joint and/or individual names of the husband and wife prior to the wife’s death, which the husband thereafter transferred to himself and the second wife as joint tenants.

On October 17, 1967 the husband and wife had executed a joint will which provides, in pertinent part, as follows: We, in consideration of the agreement of each of us to dispose of our property as hereinafter set forth, do hereby make, publish and declare this to be our joint Last Will and Testament. First: We give to the survivor of us all our property, both real and personal. Second: After the death of the survivor of either of us, all our property, both real and personal, we give devise and bequeath unto our children (plaintiffs herein). The wife died on September 27, 1971 and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County. At the time of her death, the husband and wife owned as tenants by the entirety, two parcels of real estate, one at 3722 Clarendon Road and the other at Avenue D, in Kings County, and had a bank account in their joint names in a Brooklyn bank.

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Before the court is the motion of PLK, the nominated successor co-trustee of the trusts created under Paragraphs Second, Third and Sixth of the will of WM. Movant seeks summary judgment pursuant to CPLR 3213 granting his petition for appointment as successor co-trustee pursuant to SCPA 1502. In the alternative, movant asks the court to issue an order pursuant to CPLR 3126 striking the objections to his appointment which were filed by SM, a trust beneficiary, for her failure to provide discovery.

WM died on February 14, 2008, survived by his wife, SM (hereinafter, the objectant), his son, MM, and his daughter, LM. Decedent left a will dated October 27, 2004, as amended by codicil dated October 12, 2006. The will and codicil were admitted to probate by this court on April 4, 2008. In Paragraph Second of the will, decedent established a credit shelter trust for the benefit of the objectant. In Paragraph Third of the will, decedent established a generation-skipping trust for the benefit of the objectant. In Paragraph Sixth of the will, decedent created a residuary trust for the benefit of the objectant. In connection with each of the three trusts, letters of trusteeship were issued by this court on April 4, 2008, to the three nominated trustees, namely, MCA, CAL, and the objectant.

MCA submitted his written resignation as trustee on February 2, 2010. The nominated successor trustee, SL, executed a renunciation on February 11, 2010. On May 13, 2010, MCA filed a petition with this court for permission to resign and for the appointment of PLK (hereinafter, movant), the next successor trustee nominated by the decedent in his will.

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In a probate proceeding, the Petitioner appeals from so much of a decree of the Surrogate’s Court, Kings County dated July 1, 2004, as denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of an immediate relative and granted those branches of the motion of the objectant, Mr. HP, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Mr. HP.

In this Court now ordered that the decree is reversed insofar as appealed from and the matter is remitted to the Surrogate’s Court for an evidentiary hearing, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the petitioner (appellant herein) from service as executrix, and to issue letters of administration to Mr. HP.

A testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her affairs, and that selection is not to be lightly discarded. While the Surrogate may disqualify a person from receiving letters of administration where the friction between such person and a beneficiary interferes with the proper administration of the estate, mere friction or hostility between such person and a beneficiary is not sufficient grounds for removal.

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In this proceeding for leave to compromise an action for wrongful death and conscious pain and suffering, the decedent was survived by his wife and two children all of whom presently reside in Ecuador. The decedent died as a result of injuries he sustained in a construction accident on June 7, 2000 in Bronx, New York. On October 13, 2000 this court issued limited letters to petitioner, Mr. JC, decedent’s uncle, to commence this action. The action was commenced on August 27, 2001. The Supreme Court, Bronx County, approved the compromise of the action for $790,000.00, allowed attorney disbursements of $5,897.70 and attorneys’ fees of $261,367.43 in an order dated March 20, 2006. This proceeding was commenced on December 5, 2006 to fix the allocation of the recovery, reimburse the funeral creditors and fix the distribution of the balance of the estate among the distributees who suffered a pecuniary loss.

On December 22, 2006, the petitioner served a citation in this matter by international certified mail, return receipt requested, upon decedent’s widow Mrs. GM. Petitioner also served Mrs. GM with the citation on that date as the mother of decedent’s infant daughters, PG and CG. Another citation was served that date on the infant, PG since she was over 14 years old on that date. Service was complete on the date of the mailing thereof. Citation was returnable January 10, 2007. No one appeared on that date. By order of this court dated February 1, 2007 a guardian ad litem was appointed for PG and CG. The guardian ad litem filed his report dated March 12, 2007.

In the guardian ad litem’s report he points out that PG turned eighteen on February 8, 2007 after he was appointed but before finalization of his report. The guardian ad litem reports that he has examined the file in this matter and concludes that the court lacks jurisdiction over PG presumably because of her eighteenth birthday and the fact that she is no longer under a disability. The guardian ad litem reports that he communicated this fact to petitioner’s attorney and suggested that he send a waiver and consent to Ecuador for PG’s signature and files it with the Court. The guardian ad litem made his recommendations with respect to the compromise subject to jurisdiction. No waiver and consent to the relief requested was ever filed by PG.

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