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In an action, inter alia, to set aside a conveyance of certain real property, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County as granted the plaintiffs’ cross motion to disqualify the law firm from representing him in the action.

The court ordered that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion is denied.

The defendant correctly contends that the Supreme Court erred in disqualifying the law firm from representing him in this action. The disqualification was based on an alleged conflict of interest arising from the law firm’s previous representation of the deceased aunt of the plaintiff in a real property transaction with the defendant.

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A widower, died in Kings County, on the fifth day of June, 1973, leaving a last will and testament that was thereafter duly admitted to probate. He left him surviving three adult children, two daughters and a son, all of whom he named as executors of his will, and as residuary legatees.

The will is a handwritten one, although it does not qualify as holographic. He dictated it to his daughter, in the presence of a legatee; and another who wrote it out in longhand.

Because of the verbiage used in the second sentence of the first paragraph, the son-executor petitioned the Surrogate’s Court for a construction. After trying in vain to settle the matter amicably, the Surrogate conducted a hearing. In his decision he said: “The parties shall submit a list of those items included as ‘decorative contents’ to the Court. If they are unable to agree on a division, a Referee will be appointed to supervise a division by lot. It is from the decree entered on his decision that this appeal is taken.

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This is an action against defendant and others to set aside an assignment of a mortgage made to cancel a certificate and record of the satisfaction of such mortgage, to declare said mortgage a lien on the mortgaged premises, to reinstate it on the record, and to foreclose it.

The purpose of this action was to set aside an assignment of a mortgage made by the defendant, as trustee; to cancel a certificate and the record of the satisfaction of such mortgage made by the assignee, and recorded in the office of the register of Kings county; to declare the mortgage thus assigned, which was made by the defendant to the co-defendant, a lien upon the mortgaged premises; to reinstate it upon the record; and to foreclose it when thus reinstated.

The decedent died October 28, 1877, leaving a last will and testament, which was admitted to probate in January, 1878. It, in effect, provided that his executors should, out of his estate, invest $6,000 in bonds and mortgages on unincumbered real estate of twice the value of the amount loaned, at interest at the rate of 7 per cent. per annum, payable semiannually, for the benefit of his two minor children; the income, however, to be paid, a certain proportion to his mother, and the remainder to his sister, during their lives. Upon their death, or the death of either of them, the legacy given to her was to cease, and the interest upon the $6,000 was to be from time to time collected, controlled, managed, and held in trust by a trustee named, for the benefit of such children, until they should respectively reach their majority, and in such manner as to yield the greatest aggregate increase.

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This is a case where the State Tax Commission appealed from the order of Supreme Court, Appellate Division, Second Department which order affirmed an order of the Surrogate which on appeal affirmed a pro forma taxing order fixing and assessing the estate tax pursuant to article 10-C of the Tax Law, upon the estate of a decedent.

The decedent died a resident of the State of New York, leaving a will which was admitted to probate, letters testamentary having been issued to three (3) executors. An estate tax appraiser was appointed pursuant to provisions of section 249-m et seq. of the Tax Law who made appraisal and filed report with the Surrogate of Kings County. The report showed that decedent owned stocks, bonds and other property valued at more than $184,000 which constituted his entire estate. The decedent also carried life insurance, proceeds of which in the sum of $372,385.49 were payable to designated beneficiaries other than executors.

Debts and administration expenses amounted to more than $336,000. Charitable, public and similar gifts and bequests amounted to 10,000. Exemptions pursuant to section 249-q of the Tax Law were allowed in the sum of $100,000. The pro forma taxing order provided for a total tax of $726.58. The ground of appeal from such taxing order was that portion of debts of estate had been deducted from proceeds of insurance policies payable to beneficiaries other than executors and that such deduction was erroneous.

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This is a trustees’ accounting and, as an incident thereto, the Court is required to determine the validity of the exercise of the power of appointment granted in article ‘Eighth’ of the testator’s will to his daughter as appointee.

The testator died May 11, 1933, leaving a will which was admitted to probate. By article ‘Eighth’ he created a trust of a fund, the income of which was to be paid to his daughter during her lifetime and upon her death the principal was to be paid to such persons as she designated by her last will, and should she die intestate, to those persons who at the time of her death shall constitute her next of kin. The residual provision contained in article ‘Eleventh’ of the said will provides for an identical disposition of the portion of said residual fund bequeathed to the daughter.

The daughter died a resident of Kings County on September 9, 1957, and under article ‘Fifth’ of her will she attempted to exercise the power of appointment of the corpus of the trust created for her benefit by dividing the same into as many shares as her son may leave issue living at her death which shares were to be held in trust for their respective lives, the income to be paid them from time to time and upon the death of each beneficiary the principal to their issue or, in default of issue, to the remaining children per stirpes. The children of the testator’s grandson, the only issue of the daughter are four infants, each under fourteen years of age, all of whom were born subsequent to testator’s death.

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This is a proceeding (Article 79, Civil Practice Act) for the judicial settlement of their account as surviving trustees of an express trust created by the decedent in a letter writing dated March 10, 1902, and for the construction of the trust instrument in conjunction with the will of the decedent for whose immediate benefit the trust was created.

In March, 1902 decedent had four sons. On March 10th of that year he established the instant trust in a letter addressed to a son and a few days later delivered the securities constituting the corpus of the trust to his other sons as trustees.

The settlor augmented the corpus of the trust pursuant to instruments executed in 1905, 1907, 1909, 1910 and 1911. On December 24, 1909 the sons, as trustees, properly designated their brother Samuel (now a co-petitioner) as a co-trustee.

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In this proceeding to settle an intermediate account of bank as trustee of two trusts, the appeals are from two decrees of the Surrogate’s Court, Kings County. The trustee appeals from so much of the first decree as (1) adjudged that the trustee was guilty of gross neglect with respect to one of the trusts, the one established for the benefit of the testator’s two daughters, in failing to make the trust productive; (2) surcharged the trustee $23,298.27; (3) adjudged that a certain 1946 consent and release (referred to in the decree as made in ‘1947’) executed by the daughters was ineffective to bind them with respect to the conduct of the trustee subsequent to the date thereof; and (4) adjudged that the clause in a certain probate compromise agreement of 1926 had no legal force and effect upon the daughters, who in 1926 were infants.

The trustee, a remainderman and the executor of the estate of another remainderman appeal from so much of the second decree as (1) authorized and directed the trustee to invade the principal of the daughters’ trust by transferring it equally to the daughters and (2) terminated that trust. The trustee also appeals from the further portion of this decree which ‘confirms’ the $23,298.07 surcharge; said remainderman and executor of a remainderman’s estate also appeal from so much of this decree as failed to deny the relief requested in a petition by one of the daughters, and the daughters cross-appealed from another portion of this decree.

The decree entered October 27, 1972, affirmed insofar as appealed from by the trustee, without costs, on the opinions of the Surrogate dated July 9, 1969 and May 25, 1972. Decree entered July 30, 1973, reversed insofar as appealed from by appellants other than the daughters, on the law, and proceeding remitted to the Surrogate’s Court, Kings County, for a hearing on the issues presented by the petition and the answers thereto, limited to a determination as to (1) whether there exists a need to authorize or direct invasion of the corpus of the daughters’ trust and (2) whether the transfer to the shares of the stock of the corporation might be financially beneficial to them, thus justifying termination of the trust, with costs to abide the event. The appeals by said appellants from this decree presented no questions of fact.

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In this probate case, a trustee bank, requests for the construction of an article of the will of herein decedent.

A Kings County Probate Lawyer said that decedent died in 1949 leaving a will which he had executed in 1919, some 30 years before his death which was duly admitted to probate. In Article THIRD, the will created a trust for the life income benefit of testator’s wife. Upon her death, the principal was to be paid to son and if he should predecease to his issue. In fact, the son predeceased the testator himself as well as his mother the income beneficiary without issue. It that contingency, the will directed the Trustee– ‘to pay over, transfer and deliver the principal of the trust fund to and among my next of kin in equal shares but Per stirpes and not Per capita.’

The direction is clearly to distribute the principal among Testator’s next of kin. The issue is–‘as of what date are the next of kin to be determined (1) 1919 the date of execution of the will; (2) 1949 the date of testator’s death or (3) 1975 the date of death of the income beneficiary, testator’s wife?’

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In this probate proceeding examinations of attesting witnesses have been held and on October 6, 1997 the examination of the surviving spouse, the named executrix and proponent of the will, was scheduled as part of the SCPA 1404 examination under a recent amendment which authorizes the examination of the executor and proponent prior to the filing of objections if the will offered for probate contains an in terrorem or no contest clause as this will does.

Present at the time of the examination was a reporter from Newsday who insisted on being present during the examination of the surviving spouse to which the attorneys for the parties objected. The court requested counsel to adjourn the deposition so as to permit Newsday an opportunity to submit its position in writing. Subsequently, counsel for Newsday filed with the court a letter dated October 9, 1997 citing In the Matter of the Estate of Daniel P. O’Connell, 90 Misc.2d 555, 394 N.Y.S.2d 816, which holds that an examination of attesting witnesses to a will is a “sitting” of the court for purposes of section 4 of the Judiciary Law providing that sittings in every court should be public except for specific proceedings. The O’Connell court stated, in part, that such an examination of attesting witnesses is held before this court with all parties attending, with a court stenographer present and subject to all of the applicable rules of evidence. It is thus a sitting of this court which should be open to the public.

On the other hand, it is clear that if examinations under SCPA 1404 are in the nature of depositions, then the cases have consistently denied the press access to such pre-trial proceedings.

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The decedent, Ms. DD, died on February 24, 2008, at the age of 92, leaving a duly executed will dated May 14, 1985. At the time of the decedent’s death, all legatees mentioned in the will had predeceased her, and any right to her estate under the will had passed to two nephews who lived in Nevada, and five grandnieces and grandnephews.

The decedent lived alone in her house in Bayside, Queens until December 2007 (hereinafter the Bayside house). The respondent, Ms. BB, lived in a nearby house on the same street. The parties stipulated that, as of 2007, Ms. BB had performed “many recurring household tasks” for the decedent, “including cooking, shopping, transportation, and bathing; and Ms. BB had obtained and kept a key to Ms. DD’s house where she frequently slept overnight.” Another neighbor also had a key and would also check in on the decedent once a day.

In December 2007 the decedent was hospitalized with a dislocated shoulder, and was discharged on January 4, 2008, to a rehabilitation facility. On or about January 9, 2008, while she was at the rehabilitation facility, the decedent consulted with an attorney, who was asked by Ms. BB to meet the decedent at the facility. The attorney had not previously dealt with either the decedent or Ms. BB. According to the attorney, the decedent told him that she wanted to give her house to Ms. BB, and if Ms. BB predeceased her, to Ms. BB’s daughter. The attorney informed the decedent that there were three ways to accomplish that end: deeding the property to Ms. BB, changing her will, or setting up a trust. The decedent said that she preferred to set up a trust, because she would retain ownership of her house and, upon her death, Ms. BB would avoid probate costs. The attorney asked the decedent about family, and she informed him that her husband died in 1984, she had no children, and she had very little contact with her family.

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