Matter of A.F.
2018 NY Slip Op 05590
Matter of A.F.
2018 NY Slip Op 05590
Matter of S.
2017 Slip Op 97446
Decision and Order
The respondent MJP holdings moves for an order dismissing the petition for lack of subject matter jurisdiction, and because a prior action is pending for the same issue in a different court.
Despite the fact that the proceeding was heard on 6/1/18, the history of this case goes back 40 years, starting with the death of the decedent’s grandmother CP. That litigation was only settled in 2017. Her 2 children have passed away. The estate of one child, J, is in litigation. The case with the other child, M, is being litigated as well.
The parties involved here are the petitioner, who is the executor of the decedent’s estate, the grandchild of the decedent, and daughter’s husband, and MJD Holdings.
A New York Probate Lawyer said that, in this contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other.
Since the decedent did not subscribe her name in the presence of the witness, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read.
Accordingly, the Court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to be her signature to said witnesses as required by the statute. The objections are sustained and probate is denied. Proceed accordingly. As an incident to a trustee’s final accounting, the Court is requested to fix an attorney’s fee pursuant to section 231-a, Surrogate’s Court Act payable out of the share of the issue of a deceased remainder man.
In this miscellaneous proceeding, the respondent, administrator de bonis non, moves to dismiss the petition by two alleged creditors for revocation of his letters pursuant to CPLR 3211 (a) (2) and (3).
A New York Probate Lawyer said that the decedent died in April 1939, intestate. The decedent was the writer of some classic songs. He was survived by his wife and his father. Pursuant to the law of intestacy applicable at the time of the decedent’s death, the survivors were the decedent’s only distributees. In May 1939, the wife was appointed administrator of the decedent’s estate. She died in November 1973, a resident of New York County. She left a last will and testament which nominated executors. The first executor died in January 1983 leaving a will. Letters testamentary in his estate issued to his co-executor.
The respondent, who alleges that he is a grandnephew of the decedent, petitioned for letters of administration de bonis non with respect to the decedent’s estate by petition dated September 21, 2009. The petition filed by him in the administration proceeding recites that the decedent had eight brothers and sisters who were deceased and that five nephews/nieces and seventeen great-nephews/great-nieces “were surviving.” Nicholas’ petition for letters of administration de bonis non was supported by waivers and consents of twenty-one of the distributees identified and citation issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.
A New York Probate Lawyer said that, before the court is the motion of the nominated successor co-trustee of the trusts created under Paragraphs Second, Third and Sixth of the will of the decedent. 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 a trust beneficiary, for her failure to provide discovery.
The decedent died on February 14, 2008, survived by his wife, hereinafter, “the objectant”, his son, and his daughter. 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 and the objectant.
One trustee submitted his written resignation as trustee on February 2, 2010. The nominated successor trustee, executed a renunciation on February 11, 2010. On May 13, 2010, the trustee filed a petition with this court for permission to resign and for the appointment of hereinafter, “movant”, the next successor trustee nominated by the decedent in his will.
A New York Probate Lawyer said that, in a probate proceeding in which petitioner petitioned pursuant to SCPA 1421, inter alia, to determine the validity and effect of an election pursuant to EPTL 5-1.1-A asserted by her against the estate of the decedent, the co-executors of the decedent’s estate, appeal, as limited by their brief, from (1) so much of an order of the Surrogate’s Court, Kings County, dated July 3, 2008, as granted the petitioner’s motion for summary judgment on the petition and directed dismissal of their counterclaims, without prejudice, and (2) so much of a decree of the same court dated August 5, 2008, as, upon the order, in effect, is in favor of the petitioner and against them granting the petition, declaring that the election was valid, and dismissing their counterclaims, without prejudice, and the petitioner cross-appeals from (1) so much of the order as, upon directing the dismissal of the counterclaims asserted by the co-executors did so “without prejudice,” and (2) so much of the decree, as, upon the order, and upon dismissing the counterclaims, did so “without prejudice.”
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the decree (see CPLR 5501[a]).
In 1982 the decedent, an extremely successful businessman who founded the Trade and Business School (hereinafter the School), executed a will. In his will, the decedent named his two sons, as the co-executors of his estate. Over time, the decedent’s health began to fail. His physical condition deteriorated to the point that he required a wheelchair to ambulate. He also suffered from memory loss, and often became confused.
A New York Probate Lawyer said that this is a proceeding to establish a lost will pursuant to Surrogate’s Court Act, § 143. The testimony of the two subscribing witnesses establishes that decedent executed a will on or about February 27, 1948, in full compliance with the provisions of Decedent Estate Law, § 21 and that at that time he was of sound mind and under no restraint.
The attorney-draftsman, who was also one of the subscribing witnesses, testified that the will was turned over to decedent’s son for safekeeping immediately upon its execution. He further testified that he made an exact carbon copy of the original will which he conformed and kept in his files. The said carbon counterpart has been offered for probate by petitioner as decedent’s will.
The decedent’s son testified that he kept the original will for safekeeping at all times since its execution in his home. He further testified that decedent never had access to the will and never came to him for it. During the period that decedent’s son had the will for safekeeping he moved his place of residence twice. After decedent’s death he made a search for the will among the records and files in his home and place of business but found no trace of it. He further testified that his search revealed that in addition to decedent’s will other papers including his own will were lost.
In this probate proceeding, the Court is required to determine the manner in which payment of the residuary bequest shall be made. By the will’s ‘ELEVENTH’ article the residuary estate was bequeathed to a resident of Poland ‘to be hers absolutely and forever’. A provision follows to the effect that she come to New York City to receive payment. The language requiring payment to be made in New York City is construed as a precatory provision in no manner affecting absolute nature of the bequest made.
A New York Probate Lawyer said that on her written request, the executor may make payment of the said legacy by appropriate transfer of the funds to the said legatee after July 10, 1962 when she shall have attained her majority, in the manner set forth by this Court. Settle decree on notice construing the residuary provision accordingly.
This is a motion in behalf of the contestant-distributees for an order to deny the issuance of preliminary letters testamentary to the named executor in the propounded instrument or in the alternative that a list of assets be furnished to the Court so that in the discretion of the Surrogate an appropriate bond be required of said executor. The contestants’ attorney urges that he received no notice of the application and did not consent thereto. The attorneys for the residuary legatee do not object to the issuance of preliminary letters without bond to the nominated executor, and request the denial of this motion in all respects.
In this estate case, petitioner appealed an order and judgment (one paper) of the Supreme Court, Suffolk County, dated February 10, 1981, as denied his motion for summary judgment and thereupon dismissed a writ of habeas corpus. By order dated July 25, 1983, this court remitted the matter to the Supreme Court, Suffolk County, to hear and report, and held the appeal in abeyance in the interim.
Pursuant to an order of this court, this matter was remitted to the Supreme Court to hear and report on the issue of whether the appellant’s failure to appear on March 7, 1978, the date set for the hearing on a petition to adjudge him in contempt of court for noncompliance with a turnover order in a probate proceeding, constituted a voluntary waiver of his right to be present and proffer evidence in his defense. Initially, we note that a prompt evidentiary hearing on this issue was obstructed for over three years by the appellant’s numerous, meritless attempts to appeal directly to the Court of Appeals or collaterally attack this court’s order dated July 25, 1983.
At an evidentiary hearing commenced on September 25, 1986, the appellant’s former wife, who is an attorney, testified as a witness. According to the witness, on March 7, 1978, the appellant was of counsel for her client in the trial of a matrimonial action before a Justice, in the Supreme Court, Bronx County. Since the testimony of a witness had not been completed on March 6, 1978, the Justice directed the parties to return with counsel the next day to continue the trial. To her knowledge, the appellant was on trial before the Justice the entire day of March 7, 1978. The witness conceded that she had not attended the trial of the matrimonial action on either March 6 or 7, 1978, but maintained that she knew the aforenoted facts were true from having read the trial transcript when the judgment in the action was on appeal.