Articles Posted in Queens

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The contestant has made application to the Court for an order vacating and setting aside the proponent’s demand for a bill of particulars, or in the alternative, modifying said demand, and for such other, further and different relief as to the Court may seem necessary and proper. The proponent’s demand for a bill of particulars is directed to the allegations of fraud and undue influence in paragraph 3 of the contestant’s objections.

A Kings County Probate Lawyer said that, the application will be treated as though the proponent were seeking a bill by motion in the first instance, since it calls upon the Court to determine the nature and extent of the items, if any, which the contestant should furnish to the proponent.

It is too well settled to require citation of authority, that the proponent in a contested probate may properly require the particularization of the charges of fraud and undue influence asserted to defeat the probate. The real controversy here revolves around the extent to which such particulars ought to be furnished.

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This case was brought before the Court of Appeals of New York.

The issue here is the power of the surrogate to require an administrator’s bond in double the value of the personal estate in this state of JDP, who at the time of his death was a resident of New Jersey, as a condition to the grant of ancillary administration.

At the time of JDP’s death, his personal estate consisted of personal effects with a value of about $2,500 in New Jersey, and stocks and securities with a value of about $40,000, deposited with a safe-deposit company in the city of Brooklyn.

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This is a proceeding for the custody of minors under Article 6 of the Family Court Act brought before the Family Court of Kings County.

The petitioner is the natural mother of a child born in 1976 in Brooklyn.

The respondent is the child’s paternal grandmother who was appointed in December 1977by the Surrogate of Kings County as guardian of the person for the child.

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This is an application by the Public Administrator of the County of Kings for a construction of testatrix’ will and other relief. Testatrix died on December 27, 1919 leaving a will dated February 11, 1905 which was duly admitted to probate in this Court on June 18, 1920. Except for the printed portions of the form used, the instrument was entirely written by pen and ink. After providing for the payment of her lawful debts, testatrix devised all her property, real and personal, to her friend, who was also named sole executrix with the further proviso as follows: ‘after Death the Balance what is left go to my Brothers or their heirs. (naming them) To be Equally divided Between my Brothers or heirs of my Brothers’ (italics, capitalization and spelling as in original).

It appears that upon testatrix’ death took possession of real and personal property of testatrix and by conveyances, transfers, assignments, sales, and alienations, by said testatrix individually and as executrix, the assets of the estate were disposed of among the several persons named in the petition herein. The question posed is whether by testatrix’ will she took a fee or a life estate with or without power of alienation or disposition.

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The testator left him surviving his widow, three sons, and one daughter, who were his sole heirs at law and next of kin. One of the sons, died June 29, 1900, leaving him surviving three children, one of whom is the plaintiff in this action; the widow, died September 22, 1904, a little over four years after the death of her son, the father of the plaintiff.

At the time of the testator’s death his children were under age and unmarried. The testator died seized of certain real estate in the states of New York, New Jersey, and Vermont. The plaintiff brought this action to partition lands in the county of Kings in this state, asserting she had an interest therein for the reason that under the terms of the will of the interest of her father, one of the remainder men, was subject to be divested by his death during the lifetime of his mother, the life tenant, and upon the death of the latter, having predeceased her, plaintiff with her sisters who were defendants in this action became vested with the share of their father, under the will. The trial justice decided in favor of plaintiff. The judgment entered upon that decision was reversed by the Appellate Division, and the complaint dismissed. Plaintiff and her sisters, defendants, appeal to this court.

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The residuary clause of the will of the decedent dated December 2, 1999, which was admitted to probate on August 16, 2001, reads as follows: “All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and whosesoever the same may be situate.” There is no more. The name of the intended beneficiary of the residuary is missing. As a practical matter, the residuary clause amounts to only 10% of the estate, since the will made pre-residuary bequests of 90% of the net estate.

The executrix of the will, has petitioned for construction of the will by reading the residuary clause to be the same as decedent’s prior will dated June 18, 1997. The residuary clause of the 1997 will provided: “All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and whosesoever the same may be situate I give, devise and bequeath to my nephew, per stirpes. In the event that my nephew, does not survive me, his share shall go to his wife.”

The decedent’s nephew died on November 25, 2000, without issue and the decedent died on November 30, 2000. The persons who would take the decedent’s estate in intestacy are a niece, and a great nephew. The decedent’s niece has filed a consent to the relief requested in the petition for construction. The decedent’s nephew defaulted in appearing on the return day of the proceeding. The attorney-draftsperson of the will, has filed an affidavit stating that when the 1997 will was redrafted in 1999, using computer software “some lines from the residuary clause were accidentally deleted.”

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In this probate proceeding petitioner claims that under the terms of the propounded instrument she is entitled to decedent’s net estate and to letters testamentary. The respondents have appeared and filed their consent to probate the instrument, but dispute petitioner’s claim. A construction is requested to determine whether the provisions of paragraph ‘Fourth’ are operative and dispose of decedent’s estate.

The instrument is a joint and mutual will of decedent, and her husband. He died first, on April 30, 1958, leaving only jointly owned property, and his will was therefore not probated. She died on December 13, 1958 leaving personal property. By said will each devised and bequeathed to the survivor the entire net estate, but made no alternative disposition in the event he or she predeceased, except as set forth in paragraph ‘Fourth’ of the will. It is therein provided that in the event the deaths of both of them would occur ‘simultaneously or approximately so, or as a result of a common accident or calamity, or under circumstances causing doubt as to which of us survived the other,’ then the entire net estate was devised and bequeathed to the sister of the decedent herein, and in identical eventualities nominated and appointed her executrix ‘of this our joint and mutual will and testament.’

In another case, this is an application for limited letters of temporary administration. Decedent executed a will in Ireland which was witnessed by the manager for the United States Lines in Ireland and the American Consul in Cork. Beside a small bequest to a friend, the entire residuary is bequeathed to petitioner described as decedent’s granddaughter. The will does not name an executor. The granddaughter petitions for probate of the will and for letters of administration c. t. a. She makes this motion for limited letters of temporary administration so that she can commence an action against the United States Lines before the statute of limitations runs out. This motion is opposed by Agnes Schmidt, one of two sisters who are distributees of decedent, on the ground that the wrongful death suit is ‘exclusively for the benefit of the decedent’s wife, husband, parent, child or dependent relative.’ She argues that petitioner is none of these and that under section 118 of the Surrogate’s Court Act, letters should issue to a distributee, namely, herself, so that she might bring the action against the steamship line.

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This is an appeal from Supreme Court, general term, second department. Proceedings for the probate of the will of the deceased. The will was propounded by testator’s widow, and contested by respondents and others, children of testator. From a decree of the supreme court, general term, (15 N. Y. Supp. 601,) reversing a decree of the surrogate’s court, Kings County, (10 N. Y. Supp. 744,) refusing probate and directing issues for a jury, contestants appeal. Appeal dismissed.

The general term, on appeal from the decree of the surrogate, which admitted to probate the will of 1881, and the codicil thereto, and denied probate to the will of 1887, on the ground that it was obtained by fraud and undue influence, reversed the decree ‘on questions of fact,’ and directed issues to be framed and sent to a jury for trial.

The appeal to this court is taken on the ground that the general term had no power to review the facts, for the reason that the notice of appeal to the general term did not specify that the appeal was taken on the facts, but was, in general terms only, ‘from the decree and each and every part thereof.’ It is insisted that upon such a notice only questions of law presented by exceptions were brought before the general term, and that it could not reverse on the facts upon a consideration of the weight or preponderance of evidence, or because, in its judgment, the facts should be re-examined by a jury. The appellants rely in support of this contention upon section 2576 of the Code of Civil Procedure. That section, which is found in the article relating to appeals from orders or decrees of surrogates, is as follows: ‘The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial by the surrogate of an issue of fact, it must be heard upon a case to be made and settled by the surrogate, as prescribed by law for the making and setting of a case upon an appeal in an action.’ The claim is that, if the appellants desire a review upon the facts in the Supreme Court, they must so specify in their notice of appeal. Section 2576 does not require that such specification should be made, nor is it elsewhere prescribed, but this, as is claimed, is an implication from the language of the section. We are not satisfied that this contention is well founded. Section 2574, which prescribes how an appeal may be taken, declares that it must be by written notice, to be served, ‘referring to the decree or order appealed from, and stating that the appellant appeals from the same or from some specified part thereof.’ It is not required that the grounds of the appeal shall be stated in the notice. If, under section 2576, it is necessary to specify that the appeal is upon the facts, in order to give jurisdiction to the appellate court to review them, it would seem equally necessary that, if the appeal was upon the law, it should be so specified, in order to enable the court to review the exceptions. We think section 2576 was intended to declare affirmatively the power of the general term to review both the facts and the law on appeals from surrogate’s decrees, and was not intended to regulate the practice in bringing appeals, except to require that, when the appeal is from a decree rendered upon a trial of an issue of fact, a case must be made and settled, as on an appeal in an action. That was done in this case. The question of undue influence in procuring the will of 1887 was the issue litigated, and upon which the determination of the surrogate proceeded, and a large volume of testimony was presented to the general term, and that court, on reviewing the facts, reversed the decree, and ordered issues. The notice of appeal informed the respondents that the entire decree was challenged, and the case prepared exhibited both the questions of fact and law involved. The rule that in an action tried by a jury a motion for a new trial is necessary to enable the general term to review the facts is based upon reasons wholly inapplicable to the case of a trial before a surrogate.

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In this probate proceeding, two non-marital children have moved to have their status as children entitled to benefits under the after-born statute (EPTL 5-3.2) determined. In a prior decision (Dec. No. 80, Feb. 7, 2008), the court ruled that any question regarding a party’s status in a probate proceeding should be determined as a preliminary matter and stayed all other proceedings. Rather than question any of the underlying facts, such as proof of paternity, the parties have consented to have the motion submitted assuming the truth of the movant’s allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.

The decedent died on January 13, 2007, survived by eleven children; three from a first marriage, four from a second marriage and four alleged non-marital children. The will offered for probate benefits only one child from the first marriage, the petitioner and named executrix, who inherits the entire estate valued at several million dollars.

EPTL 5-3.2 creates a rule of presumed intent for a testator who may have inadvertently omitted a child born after he executed his will. If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and unprovoked for by some settlement, the after-born shares in the gift to existing children. Case law has granted non-marital after-born children the same rights as marital after-born children if they can establish their inheritance rights under EPTL 4-1.2. Since the Wilkins case was decided, the after-born statute has been amended to address the rights of after-born non-marital children (L. 2007 ch. 423, eff. Aug 1, 2007). The amendment provides: “For purposes of this section, a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established pursuant to section 4-1.2 of this chapter.”

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The petitioner seeks a final judicial settlement of its accounts as Executor under the last Will and Testament of the deceased. As a part of the judicial settlement, petitioner requests this Surrogate’s Court to direct by appropriate order that future payments of support to decedent’s surviving first wife be made an obligation of the Trustee of decedent’s residuary estate and payable from the income and, if necessary, the principal of that residuary trust.

It appears without dispute that by an agreement dated October 10, 1952, decedent assumed an obligation to pay the sum of $300 a month to his first wife, for her support. It was provided that such monthly payments were to continue for the lifetime of the first wife. The Executor properly concluded that the obligation for payment survived the decedent and was binding upon the estate. The agreement is valid and enforceable. The accounts of the Executor disclose that the required payments have been considered as periodically accruing debts and have been paid monthly by the Executor throughout the administration of the estate.

The issue in this case is whether the final judicial settlement of the executor’s accounts should be granted.

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