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Court Explains Powers of an Executor


The case is being heard in the Special Term of the Supreme Court located in Queens County part 1.


A New York Probate Lawyer said there are several motions made in regard to this matter. The plaintiff is seeking that separate defense be struck out and the counterclaim against the plaintiff be dismissed on the ground that the court does not have jurisdiction over the counterclaim, the defendant does not have the legal capacity to sue, there is another action pending over the same cause, and the counterclaim does not state facts that are sufficient for a cause of action.

Manhattan Probate Lawyers said the defendant has motioned for an order to dismiss the complaint on the ground that the plaintiff has not cause of action by the mortgage while the contract was in effect and that the plaintiff is estopped from foreclosing the mortgage. The defendant is also seeking to strike the answer provided by the Public Administrator based on the ground that it is sham.

The Public Administrator has motioned for the defense to be stricken on the account that it is a sham and dismissing the counterclaim on various grounds.

Case Background

On the 12th of June, 1952, the decedent passed away at Kings Park State Hospital. She was a resident of Queens County. On the 21st of January, 1953, Letters of Administration were issued to the Public Administrator. At the same time a last will and testament was discovered.

The last will and testament made a charitable bequest of $500 and the rest of her estate was left to the defendant. The only asset of the estate appears to be a parcel of real property located in Queens County that is encumbered by a mortgage.

Not long after the letters testamentary were issued to the Public Administrator, the P.A. was made a party defendant to an action regarding the foreclosure of the mortgage. The defendant, who was living in the premises, was made a party respondent in the case.

The surrogate court authorized the Public Administrator to sell the property and the contract of sale was made by the plaintiff.

Court Discussion and Decision

When the facts of the case have been reviewed it becomes quite evident that the defense, counter claim, and cross complaint are all sham. New York City Probate Lawyers said the Public Administrator obtained an order from the court before proceeding with the sale of the home. This order was affirmed in the Appellate Division.

The defendant being forcibly evicted occurred as a result of the execution that was issued on the judgment that declared he had no present interest in the real property. This judgment was also affirmed in the Appellant division.

Just because a will is found and filed does not mean that the person who is named as the executor of the estate is valid. It is the probate of the will that gives it validity. Until the will has gone through probate, defendant is a complete stranger until otherwise determined.

All of the claims, cross claims, and complaints in this matter are hereby dismissed.

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