Articles Posted in Wills

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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][1]).

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.

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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.

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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.

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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. * * *’

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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.

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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.

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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 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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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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