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Petitioner Brings Action for Proceeding to Establish Lost Will


The two case hereunder is about probate proceedings.

The first case is the 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.

The evidence establishes that the decedent never had possession of the will after its execution and delivery to his son for safekeeping. The facts in the record further establish that the will was either in existence at the time of his death or that it was accidentally lost or destroyed in his lifetime without his knowledge or consent. Under such circumstances the law deems the will to have been constructively fraudulently destroyed as to decedent and the legal result is the same as if the will was in existence at the time of his death.

The second case is about an incident to a trustee’s final accounting, the Court is requested to fix an attorney’s fee pursuant to section 231-a, Surrogate’s Court Act payable out of the share of the issue of a deceased remainderman.

The testator died October 10, 1946, a resident of Kings County leaving an instrument dated June 26, 1946 which was offered for probate. Objections thereto were interposed in behalf of remaindermen of a trust, created under an earlier testamentary instrument, and by the testator’s distributees, one of whom, GH, retained the petitioner. He agreed to pay petitioner a fee based on a percentage of any benefit and executed an assignment therefor which was recorded. On May 1, 1948, an agreement of compromise was entered into, pursuant to which the propounded instrument was admitted to probate on February 19, 1949. By the terms of the agreement, on the termination of a trust created thereunder, the corpus was to be distributed to seven named remaindermen or should any of them die before the trust’s termination the share of such person was to pass to his issue per stirpes. The compromise agreement likewise provided that each and all of such shares of the remainders shall be, and shall remain, subject to the lien or liens of the attorneys for each respective remainderman for legal services rendered to each. The trust terminated on October 26, 1958 upon the death of the surviving life beneficiary thereunder. The remainderman, GH, died May 28, 1954 suvived by one son, OH, who died February 22, 1955 survived by his daughter, who will be the recipient of the share of said GH and from whose interests in the remainder the fee is sought. While the issue of the signatories to the agreement were not parties to it, the agreement enured to the benefit of such issue whose ancestor predeceased the termination of the trust and the ancestor intended to and did bind not only himself but his personal representatives and any issue succeeding to his rights under the agreement. The Court determines that the attorney has a lien for his stipulated compensation on the moneys distributable to the granddaughter of GH and directs that such attorney’s requested fee be considered a lien thereon and be paid from such share. Settle decree on notice.

For legal concerns on probate proceedings, contact Stephen Bilkis and Associates. Our attorneys works hand in hand to solve legal controversies arising from probate and estate proceedings.

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