Articles Posted in Manhattan

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Probate Lawyers said that according to a Kings County Estate Attorney a Judgment of the Supreme Court, Kings County, dated July 6, 1966, was reversed, with $30 costs and disbursements; plaintiffs’ motion for summary judgment granted; and action remanded to the Special Term for the making and entry of an appropriate judgment declaring rights in accordance with the views set forth herein.

A Kings County Probate Lawyer said one Mrs. M died on December 1, 1934 and her last will and testament was duly admitted to probate. The critical provision of the will, with respect to this action for a declaratory judgment, devised her large plot in Greenwood Cemetery to defendant, the Cemetery corporation, with the direction that her remains and those of her late husband be interred there; and further that ‘until the limitation of interments is reached, the remains of my children and my stepchildren and their respective husbands or wives, and their children and their respective husbands or wives, may be interred in the said lot of land, and that interments in the said lot be restricted to the persons so designated.’

A New York Estate Lawyer said that according to a Kings County Estate Lawyer, the Plaintiffs seek to include in the class entitled to burial all descendants and step-descendants and their respective spouses ‘until the limitation of interments is reached.’ Defendant argues that the will limits the class to first and second generation descendants and step-descendants and their respective spouses.

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A New York Probate Lawyer said that in this proceeding the executors seek a determination as to the validity and effect of the disposition of property described in testator’s will and authorization to sell the real property of which testator died seized. Testator’s will dated April 18, 1956 was admitted to probate in this Court on August 7, 1959.

A New York Estate Lawyer said that after providing for the payment of administration expenses, testator in paragraphs ‘Second’ and ‘Third’ of his will devised a parcel of real property to his brother, H, and another parcel to his son-in-law, ‘absolutely’. In paragraphs ‘Fourth’ to ‘Tenth’ inclusive, testator bequeathed general legacies to two nieces and five churches. Paragraph ‘Eleventh’, which is the residuary clause, disposed of the remainder of testator’s estate, both real and personal, as follows: (a) sixty percent (60%) to his said brother, H, and (b) forth percent (40%) to his son-in-law, O (one of the petitioner herein); and in paragraph ‘Twelfth’ directed that in the event his brother H predeceased him, then ‘one-half of his remaining share be distributed amongst the above enumerated five Churches equally, and the balance to be given to my son-in-law, O.’

A Manhattan Probate Lawyer said that under paragraph ‘Thirteenth’ testator provided that all payments be made from ‘cash assets’ at the time of his death and in the event the cash was not sufficient, then ‘distribution of these cash bequests be made on a proportionate basis.’ The will in paragraph ‘Fourteenth’ further provided that the executors are ‘not to attempt to dispose of any of my realty until two (2) years after my death’ and thereafter the executors were to exercise ‘their discretion’ to sell or otherwise dispose of the real property. Testator also provided in paragraph ‘Fourteenth’ of the will that ‘If, further, there is not sufficient sums to make the payments as mentioned in paragraph ‘Twelfth’, then I direct that as soon as any sales of realty are made, that first the specific bequests be paid and thereafter distribution be made to my surviving distributees.’ H predeceased the testator leaving no descendants surviving.

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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).

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New York Probate Lawyers said an RF died intestate in December, 1947 and letters of administration were issued to his widow, the respondent, in the same month. In September, 1948 respondent filed an income tax return for 1947 on behalf of the decedent. During the return’s audit, respondent executed three assessment waivers, the last of which extended to June, 1954 the time of the appellant, United States of America, for the making of an assessment. In May, 1954 a deficiency assessment for income taxes was made by appellant in the sum of $32,440.09 and, in August, 1954 the District Director of Internal Revenue filed with the respondent a notice of claim for payment of that sum. The respondent neither paid nor rejected appellant’s claim.

In 1962 appellant filed a petition to compel respondent to account. In defense, respondent alleged the six-year limitation period provided in the 1939 Internal Revenue Code. Surrogate Moss, as a matter of law and in the exercise of discretion, denied appellant’s petition.

The Surrogate conceded that, under former section 211 of the Surrogate’s Court Act, the filing of a notice of claim and its rejection were deemed the commencement of a special proceeding, effectively tolling State statutes of limitation.

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In this action for a judicial settlement of a trustee’s account and for a construction of the will and codicils of the testator, the trustee moves for summary judgment.

Probate Lawyers said the testator died in September 1918, leaving a will and five codicils which were admitted to probate in January 1919. By his will and codicils, the testator gave his nephew, C, an outright legacy of $500,000 and created fifteen trusts. Eight of the trusts provided that upon the death of the life tenant the corpus of each trust was to be disposed of as part of the residuary estate which was left entirely to charities (hereafter charitable trusts). The remaining seven trusts provided in each instance on the death of the life tenant for the delivery of the remainder of such trust to non-charitable beneficiaries (hereafter non-charitable trusts).

By Article Twenty-Second of his first codicil, the testator provided that the charities to which the residue was lift should not receive any benefit from the estate until all other trusts and legacies were fully paid. The testator’s foresight in making this provision is demonstrated when it was determined shortly after his death that the estate could fulfill the legacies and trusts only to approximately ninety per cent thereof. By a judicial construction of this provision it was determined that as each charitable residuary trust terminated, no payment would be made to the charitable residuary legatees until the then continuing trusts and all previously terminated non-charitable trusts had been funded in full and the legacy to the testator’s nephew had been paid in full.

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Probate Lawyers said the action by Y against BN for specific performance of a contract to purchase real property. Defendant obtained judgment, which was affirmed by the general term. Plaintiff appeals. Affirmed.

This action was brought to compel the specific performance of a contract to purchases land. The defense was that the title was not merchantable. D was the owner of a tract of land in the city of Brooklyn comprising the land in question. On the 11th day of March, 1854, he conveyed the same to J and G. On the 26th of September thereafter they conveyed the same to H by separate deeds, each of an undivided half, which were identical in form, containing the same recitals.

A New York Estate Lawyer said that the quotations hereinafter made are taken from the J deed. It contained the following: ‘Whereas, the said J and G afterwards by deeds sold and conveyed certain portions of the entirety of the premises hereinafter described to TN, WA, and BY by separate deeds of conveyances, and took back from the said TN, WA, and BY, severally, bonds and mortgages for the respective payments of the several sums therein mentioned as securities, and for the purchase moneys thereof, reference to the several deeds being hereunto had will more fully appear; and whereas, the party of the second part has agreed to purchase of the said J his portion of the entirety of the premises hereinafter mentioned, subject, however, to the several equities aforesaid.’

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

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

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

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

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

The branch of the motion to substitute the executrix as plaintiff in this action is granted.

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Probate Lawyers said that this issue is a frequently recurring problem in the Surrogate’s Courts, that of claims against estates or beneficiaries of estates by the State Department of Mental Hygiene.

Testator M died August 9, 1975 leaving his widow S as his sole distributee. His will executed in 1968 and admitted to probate provided a trust of one-half his net estate for S, remainder to two named cousins. (The cousins were also residuary legatees) As nominated executors, they have been issued letters. The gross estate is approximately $75,000.

A New York Estate Lawyer said that in 1968, shortly after the execution of the will, S was institutionalized and except for brief periods has continued as a patient in one of the institutions in the Department of Mental Hygiene (Department). A Committee has been appointed for her. The Committee is holding assets (apart from any beneficial interest in her husband’s estate) of over $100,000.

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A Probate Lawyer said that according to a Kings County Estate Attorney, in a contested proceeding to probate the last will and testament of J, also known as AJ, the objectants appeal, as limited by their brief, from so much of an order of the Surrogate’s Court, Kings Count, dated December 19, 2002, as, upon a decision of the same court, dated October 18, 2002, (a) granted those branches of the proponent’s motion which were for summary judgment dismissing the objections alleging lack of testamentary capacity, undue influence, and fraud, (b), in effect, denied that branch of their cross motion which was to compel disclosure, (c) failed to determine that branch of their cross motion which was to compel production of a handwriting exemplar of the testator, and (d), in effect, directed a separate proceeding to aid in the disposition of that branch of the cross motion of the objectant BJ which was to permit her to exercise her alleged right of election.

A Estate Lawyer said that the portion of the appeal which is from so much of the order as failed to determine that branch of the objectants’ cross motion which was to compel production of a handwriting exemplar of the testator must be dismissed, as it remains pending and undecided.

A Kings County Probate Attorney said, the appeal by the objectant BJ from so much of the order as, in effect, directed a separate proceeding to aid in the disposition of that branch of her cross motion which was to permit her to exercise her alleged right of election (see EPTL 5-1.1-A [c] [4]; SCPA 1421) must be dismissed. That portion of the order is not appealable as of right because it does not decide that branch of the cross motion and does not affect a substantial right (see CPLR 5701 [a] [2] [v]), and leave to appeal has not been granted. Any party aggrieved by a decree entered in the relevant proceeding may take an appeal therefrom.

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