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Court Decides Settlement of Intermediate Account of the Executors


In this proceeding for the settlement of the intermediate account of the executors the petition prays construction of provisions of the will which have created nine separate and distinct questions involving its interpretation.

A New York Probate Lawyer said that in Paragraph Third of her will, the testatrix made twenty-seven gifts to individuals and charitable institutions. Each of the bequests was described as consisting of ‘a sum equivalent to of my estate.’

‘It is conceded that as a general rule, absent some provision to the contrary, debts and administration expenses are deducted in computing the value of an estate when a fraction thereof has been bequeathed.

A New York Will Lawyer said there is nothing to be found anywhere in this will to suggest that the testatrix entertained any notion of making these bequests in terms of percentages of the gross estate and as a consequence the court cannot concur in the proposition that that was her intention.

Brooklyn Probate Lawyers said the formula to be employed for measurement of the net estate requires that there be deducted from the gross value of all of the assets left by the deceased a sum equal in amount to the total of the debts, estate taxes and expenses of administration. To be included in the latter category is the sum of $300,000 paid to the mother of the testatrix in consideration of her withdrawal of objections to the admission of the will to probate. To save these legacies for the respondents it was necessary that the proponents succeed in the contest by victory after trial or by purchasing peace for the estate from the objectant. Either course entailed the expenditure of estate funds. That the costs of litigation, including counsel fees, constitute expenses of administration within the ordinary meaning of the term, is plainly beyond dispute and the court is unable to ascertain any distinction between payments for that purpose and the cost of the settlement to which all of the respondents agreed.

A Bronx Probate Attorney three of the bequests established in Paragraph Third of the will were left to married couples. Common to all of these legacies was the direction. That these bequests were intended by the testatrix to be shared by husband and wife jointly and equally is not open to doubt and the court so holds.

In disposing of a portion of the remainder of one of the two residuary trusts, the testatrix provided as follows in paragraph Sixth (I), (c):[13 Misc.2d 995] ‘(c) The remaining one-third (1/3rd) thereof I give, devise and bequeath to the named charitable organizations, each in equal amount to the other.

The question which this provision of the will creates may be stated in these terms; did the testatrix intend to make a gift of an equal share of the remainder disposed of to the eight charitable institutions named or was it her intention, as expressed in the juxtaposition of the titles of the last two legatees designated, that the first six are each entitled to a one-seventh share of the total and the Boy Scouts of America and the Girl Scouts of America to a fourteenth apiece? The position in which the name of a legatee appears in a will may have an important bearing upon the rights of its wearer. In the cases cited, for example, it was held that where the number of a series of like articles left to designated legatees fell short of providing a like gift for each member of the group then those whose names appeared at the top of the list took in preference to those at the bottom.

The rationale of the cases cited applies here and acquires added emphasis from the fact that the title of each of the other legatees was placed upon a separate line and separated by semi-colons from the rest of the roster. The distinction in the treatment of the Scout legacies requires the court to hold that the two organizations each take only a one-fourteenth share of the total bequest.

Paragraph Ninth of the will provides in part as follows: ‘If any person, corporation or institution, whether named in this, my Last Will and Testament, or in any codicil thereto, or otherwise, shall directly or indirectly institute, become a party to, or aid or abet in any proceedings to set aside, interfere with or annul the whole or any provision of this Will, or shall offer any objections to the probate thereof, or contest the validity of any provision thereof, whether valid or invalid, then and in that event I hereby revoke the provisions, if any, of this, my Last Will, in his, her, its or their favor,.’

‘Limitations on conditions attached to a legacy or devise: ‘No forfeiture of any benefit under a will shall be occasioned by disclosure on the part of the beneficiary to any of the parties or to a court of information relating to any paper propounded as a last will; or by disclosure by such beneficiary to any party or to a court of information relevant in a proceeding for probate of such propounded paper.

‘No forfeiture of a benefit under a will shall be occasioned by refusal or failure of the beneficiary to join in a petition for the probate of a paper propounded as a will, or by refusal or failure of the beneficiary to execute a consent to or waiver of notice of such probate. ‘An infant or incompetent party may affirmatively oppose the probate of a propounded instrument without forfeiting any benefit thereunder.’

The testatrix died in May 1955, letters of temporary administration on her estate were issued and letters testamentary in July 1957. A question arises as to the date on which interest commenced to run on the general legacies which the testatrix defined in terms of percentages of her estate. Although the amounts of those bequests cannot be definitely determined until the net value of the estate is finally established under the earlier ruling in this decision, the general legacies will carry interest on the amounts then fixed running from the date when they matured. Section 218 of the Surrogate’s Court Act and section 146 of the Decedent’s Estate Law provide that legacies become payable seven months subsequent to the issuance of letters testamentary or of ‘letters of administration.’ It has been held in a number of cases that letters of temporary administration are embraced within the phrase ‘letters of administration’ as employed in both of the sections cited at least to the extent of fixing the date upon which interest commences to run on general legacies; ‘The expression, ‘letters of administration,’ includes letters of temporary administration.’

‘The second question, whether the words ‘granting letters testamentary or of administration,’ as used in the statute, includes letters of temporary administration, we think, should be answered in the affirmative: (1) Because the legislature, having used the words ‘letters of administration,’ instead of ‘letters of administration with the will annexed,’ must be deemed to have employed them in their broader meaning, so as to include letters of temporary administration as well.’

The court accordingly holds that the legacies began to bear interest at the rate of 3% per annum on seven months after the issuance of temporary letters of administration. It is further directed that the income beneficiary of the pre-residuary trust is entitled to the income earned by the trust from the date of the death of the testatrix at the rate earned by the estate.

The objections having been withdrawn or reserved for determination on the final accounting, a decree may be submitted on notice construing the will in accordance with the foregoing and settling the account, as filed.

Probate of a will takes time and hard to resolve immediately when the provisions are not clear. Here in Stephen Bilkis and Associates, our New York estate lawyers will make the probate of a will easier by putting provisions which are proper on what the law states. For other inquiries, you can contact our New York Probate attorneys.

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