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Court Rules in Will Contest Action


A New York Probate Lawyer said this is an action pursuant to Article 15 of the Real Property Law to compel the determination of claims to certain real property located at Bronx, City of New York. The plaintiff seeks a decree that she is entitled to the title of said premise as against all of the defendants and every person claiming under them. She contends that she is the sole owner in fee of the property entitled to possession of the premises and that she has a good and marketable title acquired by adverse possession.

A Bronx County Probate attorney said that plaintiff acquired title by deed of conveyance from the adminstratrix of herein deceased. Plaintiff is now in possession of the property and occupies same. The defendant, the plaintiff’s grantor, acquired her title by deed of conveyance from her husband in March 1932. Defendant administratrix was in possession until the sale of the property to the plaintiff.
Decedent obtained title to these premises by virtue of a deed from Rosa Belle Christian, his first wife, dated January 16, 1931.

In 1961, about a year after her acquisition of the property, having executed a contract to sell same, the plaintiff discovered that there was a defect in the title in that at the time of the purported conveyance of the property from the first wife to decedent, her husband, she, was dead.

The record also discloses that prior to her death, the first wife, executed an instrument in writing purporting to be a will in which she stated that the property rightfully belonged to the decedent.

Decedent married the defendant, his second wife, in or about March 1928. He died in Bronx County in November 1935. Letters of administration on his estate were duly issued to the said defendant second wife (administratrix).

It is the court’s considered opinion that decedent did not acquire a legal right to regain the premises in view of the failure of the first wife to probate the instrument which purported to be a will, but the court believes that he obtained colorable title by virtue of the aforesaid purported will as well as the deed of 1931 conveying the property to him.

A Westchester County Probate Lawyer said the court concludes from all the testimony that the property was truly and actually the property of decedent and that it was transferred to his first wife merely for his convenience.

The grantor of the plaintiff, here, obtained a deed in 1932, was in possession of the property for almost 28 years, used and rented the property, collected the rent and paid the bills and taxes. The record also discloses that the plaintiff bought the property from second wife, having been a tenant about 26 years and having paid her rent during that time to the latter.

This contention is supported by the testimony by a representative of a title insurance company who outlined the claim of title from the first wife, through decedent through administratrix through the plaintiff. The chain of title is further buttressed by the testimony of the attorney from the grantor, to the effect that decedent had instituted an action against the first wife for reconveyance of the property.
The plaintiff is entitled to a decree that she has title to premises as against all of the defendants.

Section 37 of the Civil Practice Act provides that ‘where the occupant or those under whom he claims entered into the possession of the premises under claim of title founding the claim upon a written instrument, as being a conveyance of the premises in question and there has been a continued occupation and possession of the premises for fifteen years the premises so included are deemed to have been held adversely.’

A Suffolk County Probate Lawyer said Section 500 of Article 15 of the Real Property Law provides that ‘where a person claims an estate or interest in real property, such person may maintain an action against any other person, known or unknown to compel the determination of any claim addressed to that of the plaintiff [and s]uch action may be maintained even though * * * the court may have to determine the death of a person or any other question of fact or law upon which an adjudication of the adverse claims of the parties may depend.’

In a case, the court enunciated the five essential elements necessary to constitute an effective adverse possession: first, the possession must be hostile and under claim of right; second, it must be actual; third, it must be open and meritorious; fourth, it must be exclusive; and fifth, it must be continuous. The court also concluded that ‘all that is necessary in order to make an adverse possession effectual for the statutory period by successive persons is that such possession be continued by an unbroken claim of privity between the adverse possessors.’ The court further stated that privity may be established in many ways, as by lease, descent, conveyance, parol or otherwise. All the law requires is continuity of possession.

In the matter before the court, the possession of decedent, of defendant and the plaintiff have been continuous by privity of estate. It has been hostile and under claim of right. It has been open and meritorious and has been exclusive. In other words, the plaintiff has met all the requirements of adverse possession and she is entitled to a decree granting her title herein.

To properly dispose an estate of a person, the latter must be in free and dispositive mind while distributing his estate. That is, he is aware that he is disposing the proper objects of his bounty. Here in Stephen Bilkis and Associates, our Bronx County Probate lawyer will see to it that there is proper disposition of an estate. If not, an opposition to that petition for probate will be filed accordingly. For other concerns, don’t hesitate to call our Bronx County Estate lawyers now for a competent advice.

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