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Court Rules on Proceeding to Settle Executors Account


Sources show that this is a proceeding to settle the executor’s account of a Trust Company. Objections have been filed on behalf of the deceased to the said accounting. The objectant claims title to one-third (1/3) of all property received by the executor as set forth in the account, or, in the alternative objectant seeks to recover the alleged consideration given for the promise to exercise the powers in his favor. The remaining objections are to any charges being made against the property claimed by the objectant.

A Probate Lawyer said the objectant is the only child of the decedent’s marriage to his first wife. At the time of his marriage, and at all times thereafter, decedent was the donee of a testamentary power of appointment in each of two trusts. The first of these powers in a general power of appointment granted to the decedent under the will of his mother. The second is a general power of appointment reserved to the decedent under an inter vivos trust indenture, made by the decedent as grantor. Sometime in 1942 the decedent and his first wife, entered into a separation agreement which provided that in consideration for the wife relinquishing all of her marital rights and claims to the decedent’s property, the decedent would pay to her the sum of $450, plus $100 per month to be used for the support of the objectant until he reached the age of 21 years. The decedent further agreed to maintain irrevocably certain policies of insurance on his life with the objectant as designated beneficiary. No evidence was offered at the hearing in respect to the existence of any such life insurance. The only payment made by the decedent under the 1942 agreement was the sum of $250, paid to the wife at the time of the execution of the agreement. None of the monthly payments was made.

A New York Estate Lawyer said he decedent and the wife were divorced pursuant to a decree of the Circuit Court, Florida. Both the decedent and the wife remarried. A judgment was obtained against the decedent in the sum of $1,567.90 for unpaid monthly installments due under the 1942 agreement. Thereafter, the decedent, wife, and their respective spouses entered into an agreement in order to ‘amicably settle and adjust’ these differences. The 1944 agreement provided that the wife’s second husband, would adopt the objectant. The decedent consented to the adoption and agreed to lend all necessary assistance to effect same. The wife agreed to promptly procure a satisfaction of the $1,567.90 judgment previously entered, and the wife and her second husband further agreed to hold the decedent safe and harmless from making any further payments of $100 per month as required by the 1942 agreement. Finally, the decedent agreed to exercise his testamentary powers of appointment irrevocably in such a manner which, in view of subsequent events, would result in the objectant receiving a one-third interest in the principal of the trusts. Simultaneously, with the execution of the 1944 agreement, decedent executed a Will providing for the exercise of the power in objectant’s favor. On that very same day an order of adoption was made providing for the adoption of the objectant by the second husband.

Decedent executed a new Will, which was admitted to probate on October 2, 1968, revoking all prior Wills. In the later Will the decedent exercised the powers of appointment in favor of his estate. No provision of any kind was made for the objectant. The objectant now claims as a creditor of the estate one-third of the total amount, free of the imposition of administration expenses. In the alternative, assuming the court finds that the agreement to exercise the powers of appointment in favor of the objectant is unenforceable, the objectant seeks to recover an amount equal to the unpaid monthly support payments due under the 1942 agreement from March 1, 1942 until January 29, 1955, with interest thereon from the respective due dates. To the contrary, executor contends that the provision in the 1944 agreement purportedly binding decedent to exercise his testamentary powers of appointment in favor of the objectant is unenforceable, and, further, that the objectant has no standing to seek restitution for the invalid promise.

Nassau County Probate Lawyers said that the court ruled that, a donee of a power of appointment which is not presently exercisable, or of a postponed power which has not become exercisable, cannot contract to make an appointment. Such a contract is unenforceable and cannot be made the basis of an action for specific performance or damages. It follows that since such a contract is unenforceable by the direct parties, it may not be enforced by one who claims the status of a third-party beneficiary, and the court so holds. The cases cited by the objectant, all basically stand for the same general principle that where there is an enforceable right under an agreement, a third-party beneficiary may have standing to sue. Here, however, we are faced with a provision in the 1944 agreement which is unenforceable and not subject to an action for specific performance or damages by anyone.

A Staten Island Probate Lawyer said that the objectant cites three cases, in support of the proposition that he is entitled to maintain an action for restitution of the consideration allegedly given for the decedent’s unenforceable promise to execute te testamentary powers of appointment in his favor. The court holds to the contrary. Upon the evidence presented, the court cannot make a finding that the objectant would have standing to enforce any right to the support payments provided under the 1942 agreement, and, therefore, he cannot seek restitution of same as the alleged consideration for the above promise. As a general rule, children for whose support a provision is made in a separation agreement between their parents, payable directly to a parent, are not able to enforce that portion of the agreement directly in an action against the other parent. Unless there is a showing that one spouse is under a disability of one kind or another to enforce his or her own legal rights against the other, it is the one who is the direct party to the separation agreement, and to whom payments for the support of the child are to be made, who may enforce the agreement.

Moreover an assumption that the sole consideration given by the decedent for the relinquishment of his support obligations was the unenforceable promise to execute the testamentary powers of appointment overlooks the fact that in the same agreement decedent consented to the adoption of his child by his former wife’s husband. It would be pure conjecture to say that this was not such consideration as was intended to support the relinquishment of his obligations under the 1942 agreement, particularly since the order of adoption of the objectant was entered on the same day as the 1944 agreement was executed. Accordingly, the objections filed to the account on behalf of deceased are dismissed. Upon completion of the tax proceedings a decree may be entered settling the account as filed.

It is common that upon the death of a loved one, actions against the estate, such as estate administration, will contest, estate litigation and the likes, are instituted by interested parties. In such cases, consult with your legal team. Stephen Bilkis & Associates, with offices throughout New York, has its Kings County Estate Lawyers, and its New York Probate Attorneys who can help you and assist you throughout the process.

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