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Published on: September 3, 2017

Carbon copy of a will submitted for probate – Levinsohn’s Estate, In re, 160 N.Y.S.2d 479 (N.Y. Surr. Ct., 1957)

by Stephen Bilkis

In this case the Surrogate’s Court had to determine whether to probate a carbon copy of a will where the original was purported inadvertently lost or destroyed.

According to the two witnesses, the decedent, L. Levinsohn, executed a will on or about February 27, 1948. They testified that all legal requirements were met. In addition, they testified that at the time Levinsohn executed the will, the decedent was of sound mind and memory and that he was not under duress.

One of the two witnesses was an attorney and was also the person who drafted the will. He testified that immediately after the will was executed, he gave it to the decedent’s son for safekeeping. This witness also testified that he made a carbon copy of the original will which he conformed and kept in his files. The witness submitted the carbon copy for probate.

Published on: August 27, 2017

Court Discusses Power of Surrogates

by Stephen Bilkis

This is a Mandamus case by the People, on the relation of individual. From an order of the Appellate Division in the Second Judicial Department, reversing an order of the Kings Special Term, which granted relator’s motion for peremptory writ, plaintiff appeals.

The relator was duly elected the surrogate of the county of Queens at the general eléction in 1910, and his term of office as surrogate of said county had not expired in 1915.

By chapter 443 of the Laws of 1914, which took effect September 1, 1914, chapter 18 of the Code of Civil Procedure ‘in relation to surrogates and the practice and procedure in Surrogates’ Courts’ was revised, and section 2538 thereof now provides: ‘In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, and in any proceeding for the probate of a will in which any controverted question of fact arises, the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same. The surrogate in such order must direct that such trial be had either before himself and a jury, or at a Trial Term of the Supreme Court to be held within the county, or in the county court of the county. * * *’

Published on: August 26, 2017

Beneficiary of Trust is at Issue

by Stephen Bilkis

Testatrix died on March 21, 1954, leaving surviving her son as her only distributee. Her will was admitted to probate June 2, 1956. The delay was caused by difficulty in locating testatrix’ son. The will nominated the attorney-draftsman as executor and trustee but he renounced and the niece of testatrix and a beneficiary under the will was appointed administratrix c. t. a.

The will gives to said niece household furniture and other items and the balance of an account in the South Brooklyn Savings Bank after payment therefrom of funeral and estate expenses. Paragraph ‘Fourth’ creates a trust of the residuary estate for the benefit of testatrix’ son. The article in question reads as follows: “FOURTH’ All the rest, residue, and remainder of my estate, both real and personal, of whatever nature, and wherever situate, I give, devise and bequeath in TRUST, for a period of five (5) years from the date of my death, to my son, said trust is for the purpose of providing necessary clothing and medical care for my son. At the end of the five year period, if my son, cannot be located, then I give, devise and bequeath the remainder of this trust to my aforementioned niece. If my son should die before the five year period has elapsed, I give, devise and bequeath the remainder of the trust to my aforementioned neice. As trustee of this trust I hereby appoint my lawyer with power to invade the trust for the above mentioned purposes, no bond being necessary for the faithful performance of his duties as trustee.’

This proceeding seeks a construction of paragraph ‘Fourth’ of the will to determine the intention of testatrix with respect to whether testatrix’ son is entitled to the remainder of the trust or whether the niece is entitled to the remainder.

Published on: August 19, 2017

Attorney General Brings Action Regarding Revised Charter of New York City

by Stephen Bilkis

This action is in the nature of quo warranto, brought by the attorney general upon his own information, pursuant to section 1948 of the Code of Civil Procedure. The action is primarily against certain persons alleged to have usurped and entered into the office of city magistrates in the boroughs constituting the Second division in the city of New York. Pursuant to section 1954 of the Code, the persons who claim to have been elected to said offices, and rightfully entitled thereto, are also made defendants.

The complaint proceeds upon the theory that under section 1392 of the Revised Charter of New York City, enacted in 1901, there was a valid election in the fall of that year, at which certain persons were elected to the office of city magistrates in the boroughs of Brooklyn, Queens, and Richmond, who are prevented from discharging the duties thereof and receiving the emoluments belonging thereto by the unlawful usurpation of said office by the defendants above named. Said defendants, by their answer, challenge the constitutional validity of said charter provisions, and allege their own legal incumbency of said office pursuant to legal appointments made prior to said election. To this answer the plaintiffs interposed a demurrer on the ground that it is insufficient in law.

For the purposes of administration of criminal justice, the greater city of New York, under its original charter, enacted in 1897, was divided into two divisions. In the first division were the boroughs of Manhattan and the Bronx; in the second the boroughs of Brooklyn, Queens, and Richmond. Section 1390. When said charter went into effect, the office of city magistrate was in existence in the former city of New York, having been established by chapter 601 of the Laws of 1895. Section 1392 of said charter provided that the city magistrates in office when it took effect should continue to hold their office until the expiration of their respective terms, and should be known as the city magistrates of the First division; that their successors should be appointed in the same manner, and have the same powers and duties, as provided by said chapter 601, Laws 1895. The act just referred to provided that such magistrates should be appointed by the mayor for terms of 10 years. On account of the different conditions which prevailed in the boroughs of Brooklyn, Queens, and Richmond, the charter provisions relating to the office of city magistrate in these boroughs were more elaborate than those above summarized.

Published on: August 13, 2017

Court Discusses Procedural Issues

by Stephen Bilkis

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.

Published on: August 12, 2017

Court Hears Action to Set Aside Conveyance of Real Property

by Stephen Bilkis

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.

Published on: August 5, 2017

Plaintiff Moves to Set Aside Assignment of Mortgage

by Stephen Bilkis

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.

Published on: August 5, 2017

Court Discusses Estate Tax Assessment

by Stephen Bilkis

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.

Published on: July 31, 2017

Court Hears Trustees’ Accounting and Determines the Validity of Power of Appointment

by Stephen Bilkis

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.

Published on: July 29, 2017

Surviving Trustees Bring an Action for Judicial Settlement of Account

by Stephen Bilkis

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.