Articles Posted in Long Island

In this construction proceeding a determination is sought as to the validity and effect of a devise of real property contained in testatrix’ will.

A Probate Lawyer said the testatrix died on May 13, 1932 survived by five daughters, and children of a predeceased daughter. Testatrix’ will dated February 4, 1923 was admitted to probate on July 8, 1932, and under it the daughter was appointed executrix. At present the only unadministered asset of the estate is a specific parcel of real property. By article fourth of the will this realty is devised to testatrix’ five daughters ‘share and share alike, for the term of their natural lives, and upon the deceased of each or any of them her share to revert to the survivor or survivors of them and to no others, until there is a sole surviving daughter in which event the said sole survivor shall take the property in fee simple absolute.’ Article fifth of the will contains a prohibition against sale of the realty unless such sale be made ‘with the unanimous express consent of all’ the living sisters. By article seventh testatrix directs that if any proceeding is commenced by any of the daughters ‘to set aside this Will or to seek any interpretation contrary to my intentions expressed herein, then and in that event, the said daughter shall immediately forfeit all her right, title or interest in any of my property’

A New York Estate Lawyer said that petitioner herein, is the only living daughter, the other devisees of the realty having died in different instances. She now seeks to sell the real property, and in this proceeding requests a determination as to the person or persons entitled to the ownership thereof, and of the effect of article seventh upon the interested parties. Request is also made that letters of administration c.t.a. be issued to petitioner, and that she be granted specific authority by the court to sell the said realty.

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Probate Laywers said that sources revealed that the decedent died leaving a joint will entered into with his wife. Under the provisions of that will all property of the person first dying is bequeathed to the survivor; upon the death of the survivor ‘all of the property of which he or she shall be possessed, including such property as he or she shall have acquired under the terms of this Last Will and Testament, shall go’ to a daughter with a gift over if said daughter predeceases the survivor. The Tax Commission urges that the widow is not entitled to the maximum exemption because the taxable estate transferred to her is not ‘indefeasibly vested’ within the meaning of section 958(b)(1) of the Tax Law. It argues that the joint will is a contract binding upon the survivor, and that the widow, at most, has the equivalent of a life estate, the remainder of which passes to the daughter upon her death.

Although both parties base their contentions upon the provisions of the joint will, that instrument has not been offered for probate. Ordinarily a will is not presumed valid until probated, as before such approval there is nothing to be construed. However, SCPA 2002 provides that the surrogate’s court of every county having jurisdiction of the estate of a decedent under the provisions of the tax law relating to transfer or estate taxes shall have jurisdiction to hear and determine all questions arising thereunder, including specifically, but without limitation, jurisdiction to fully determine the amount of tax to be imposed. Aside from the ordinary jurisdiction of the surrogate, this is a special grant of power in broad and comprehensive language. There can be no good reason for hampering the power conferred by any construction that would take from the court the authority to decide every question that may arise in the tax proceeding which may be necessary in order to fully discharge the duties imposed by the law. As an incident to determining the estate tax, the court, in this instance, must necessarily interpret the terms of the joint will. Under such circumstances a construction of the will is proper despite the fact that the will has not yet been probated.

A New York Estate Lawyer said that furthermore, SCPA 209(4) provides, in part, that the court has power ‘to determine a decedent’s interest in any property claimed to constitute a part of his gross estate subject to estate tax and to determine the rights of any persons claiming an interest therein as between themselves, And to construe any instruments made by him affecting such property.’ One of the issues raised herein is whether the joint will is a contract binding upon the survivor. Though the contract, if one was created, is tantamount to a testamentary disposition, it need not comply with the statutory requirements for the execution of wills. The court is thus interpreting the validity of the document not as a will but as a contract, which is an instrument within the meaning of SCPA 209(4).

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A Probate Lawyer said that incidental to this proceeding to judicially settle decedent’s final account, covering the period from December 1, 1984 to July 31, 1999, is a plea for construction of paragraphs Fifth and Sixth of his will. National Bank (petitioner), the successor executor and trustee under the will, maintains that construction is necessary before final distribution can be made. Petitioner, the stakeholder of testamentary trusts created under paragraphs Fifth and Sixth, takes no position with respect to the ultimate remaindermen of the trusts.

Mr. FC (hereafter decedent) died testate on January 18, 1944. His last will and testament of February 27, 1942 was admitted to probate by this court on February 10, 1944. Decedent was survived by a daughter, M, and a son, L, his distributees. Decedent’s wife predeceased him in 1942.

After directing the payment of debts and expenses and leaving personal effects, real property and the sum of $1,000 to M, decedent’s will directed that the residue be divided into three equal shares. From these shares, the will established two testamentary trusts: one funded with two thirds of the residuary estate (the article Fifth Trust) and one funded with the remaining one third of the residuary estate (the article Sixth Trust).

Probate Lawyers said that in this contested accounting proceeding, the petitioner moves for an order permitting him to amend the final accounting to include trustee’s commissions to which he alleges he is entitled. Respondent opposes the motion. For the reasons that follow, the motion is granted

A Kings County Estate lawyer said that the decedent died on May 6, 1979, a resident of Nassau County. His will and a codicil thereto were admitted to probate by decree dated May 25, 1979. The will nominates the decedent’s two daughters and his grandson as co-executors and co-trustees of the trust created under Article FIFTH of the will. Letters testamentary and letters of trusteeship issued to them. The income beneficiaries of the Article FIFTH trust are the decedent’s two daughters and the decedent’s spouse, who died only a few months after the decedent. The remaindermen of the trust are the decedent’s grandchildren. On the other hand, the Oppositor fled objections to the account.

An Estate Lawyer said that according to his attorney, the co-executor is seeking leave to amend the account to include two-thirds trustee’s commissions chargeable to principal due to co-executor for the period of the account as shown on the amended affidavit sworn to on June 17, 2009. The total amount of these commissions is claimed to be $183,602.00.

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A Probate Lawyer said this matter arises out of a fatal, three-vehicle accident which occurred on September 25, 2006 on Interstate 87 in Ulster County, New York. At the time of the accident, the decedent was a front seat passenger in a vehicle being operated by defendant AS which, at the time in question, was proceeding north on I-87 near the Kingston exit. At this point in time, AS was allegedly cut-off by a pick- up truck towing a horse trailer (owned and operated by defendants L and RRs, respectively) which attempted to make a U-turn from the northbound shoulder of I-87, purportedly ten feet in front of the AS vehicle. After contact with the pick-up truck, AS’s Jeep was apparently propelled into the southbound lanes of I-87, where it was struck by a vehicle owned by defendant Y and operated by defendant LJ.

There is no dispute that Mr. V died as a result of the massive injuries which he sustained in this accident. However, as shall presently appear, a dispute has arisen as to the accuracy of AS’s claim that the decedent was asleep at the time of the initial impact and, therefore, incapable of experiencing any degree of pre-impact terror or conscious pain and suffering in the above accident.

An Estate Lawyer said that on his motion for leave to intervene pursuant to CPLR 1012, 1013, CX contends that the Order of this Court, dated August 10, 2009, should be vacated pursuant to CPLR 5015, and the matter removed or transferred to the Surrogate’s Court, Richmond County, for further proceedings to judicially account for the settlement proceeds. The order in question provides, in relevant part, for the settlement of plaintiffs’ cause of action for wrongful death for the sum of $300,000.00 and the voluntary discontinuance, with prejudice, of decedent’s personal injury action. In support of his motion, CX maintains that this court’s allocation order is invalid since all of the interested parties who might be adversely effected were not joined in the compromise proceeding.

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In this action for medical malpractice, the claimants are represented by the executor of their estate.

A Probate Lawyer said the records show that one of the accused has moved the medical malpractice action to change venue pursuant to CPLR section 510(1), claiming that claimants improperly placed venue based on the current New York residence of a co-accused doctor, rather than on his residence in another county at the time of the alleged negligence. The complainant opposes, arguing that the doctor’s current residence is a proper basis for placing venue in New York County.

Hence, the issue is whether or not the venue in this action is improperly laid.

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A Probate Lawyer said in an action to foreclose a materialman’s lien, the appeal is from a judgment of the Supreme Court, Richmond County, dated November 2, 1981, which confirmed the Referee’s decision of July 7, 1981, in favor of the plaintiff and against defendant Corporation in the total amount of $64,112.81.

By order of this court dated September 13, 1982, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Richmond County, with the direction that upon remittitur “Special Term should refer this matter to the Referee for a factual determination with regard to whether defendant is entitled to a ‘set-off’ or credit in the sum of $25,000, thereby reducing the principal amount of the judgment against it to that extent”. The referee’s report on remittitur, dated November 15, 1982, states that Beverly is not entitled to the $25,000 setoff.

A general construction contractor of a residential community located on Staten Island, was a joint venture comprised of defendant and another corporation. Defendant is the representative of the estate, the subcontractor employed under two separate contracts to install the plumbing in those sections of the Village designated as Loop A and Loop B. Plaintiff allegedly delivered materials to Iosue for use at the Village project, and for which it was never compensated. Its lien in the amount of $43,148.88 was timely filed on December 28, 1972. It seeks recovery of that amount from Company.

Probate Lawyers said the People of the State of New York, by its Attorney-General, have commenced this action in ejectment against the Public Administrator of Richmond County in his capacity as said administrator and as administrator of the goods, chattels and credits of a decease; his widow, if any; his heirs at law, devisees and distributees; and any other persons, corporate or otherwise, including unknowns, interested in or claiming any right relative to certain hereinafter mentioned real property.

A New York Estate attorney said that the plaintiff demands judgment for the immediate possession of the said real property which it is alleged was formerly owned by the decedent and of which it is claimed he was seized in fee simple and was possessed at the time of his death, on May 6, 1950.

An Estate Lawyer said at the time of the trial, the Public Administrator appeared by his attorney and withdrew his answer to the complaint. The other defendants, except as herein stated, are in default. A guardian ad litem, appointed for such of the defendants as may be infants or incompetents, and to appear as attorney for such defendants as may be in military service of the United States or have been ordered to report for induction, interposed the usual guardian’s answer in behalf of said infants and incompetents and filed a notice of appearance as such attorney.

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Probate Lawyers said that according to sources, in two of three consolidated proceedings the trustees under two indentures of Inter vivos trusts, seek judicial settlement of their accounts and construction of certain provisions of the trusts. Specifically, as holders of shares of stock of a regulated investment company (sometimes called a ‘mutual fund’), they seek instructions whether within the purview of the provisions of the trusts, capital gains distributions made by the company are income distributable to the income beneficiaries of the trusts or are principal allocable to the corpora of the trusts. They also request instructions concerning the allocation of estate taxes and attorneys’ fees among the persons interested in one of the trusts. In the third proceeding the executors of the will of the settlor of the trusts request instructions concerning the allocation of estate taxes and attorneys’ fees insofar as they are referable to one of the trusts and other property. The parties have stipulated, with the approval of the court, that examination and settlement of the trustees’ accounts shall be deferred pending determination by the court of the issues on which instructions are sought. There shall be considered first the treatment of capital gains distributions, as between principal and income, paid to the trustees on the shares of stock of the regulated investment company. At the time of the institution of these proceedings the trustees held 81,247 shares of stock of an investment company in the corpus of the 1931 trust and 120,000 shares in the corpus of the 1935 trust.

An Estate Lawyer said that the investment company has qualified as an open-end regulated investment company, having registered under the provisions of the Investment Company Act of 1940, as amended. Each of its investors own a pro rata share of the securities held in its portfolio. Its earnings are acquired from dividends and interest paid on securities in its portfolio which are classified as ordinary income, and also from the net profits realized on the sale or exchange of its investments which are designated as capital gains. As required by the Investment Company Act, its statements to its shareholders and the public specifically characterize the source of the earnings. It is not disputed that ordinary income is properly treated as income distributable to the income beneficiaries. The issue arises as to the allocation of the capital gains distributions. The petitions of the trustees allege that each year the Investment company pays capital gains dividends which are payable at the election of the owner of such shares in cash or in additional shares of the corporation’s stock. They are uncertain as to whether such capital gains dividends are income and distributable to the income beneficiaries of the trusts or are principal to be retained by the petitioners in the corpora of the trusts. The income beneficiaries maintain that they should be treated as income and distributed to them. The guardian ad litem appointed to represent the infant remainder men on this issue contends that they are principal and should be added to the corpora of the trusts. Initially, consideration must be given to the trust instruments to determine whether the settlor’s intention concerning the distribution can be ascertained therefrom. If it can, it would be controlling.

Queens Probate Lawyers said the paramount rule in the construction of Inter vivos trust indentures is to ascertain the settlor’s intention as expressed in the instruments in the light of the circumstances surrounding and attending their execution, and when ascertained to effectuate that intention unless contrary to public policy or an established rule of law. Other than those heretofore related, the record is devoid of any extrinsic circumstances existing at the time of the execution of the instruments which would shed light on the settlor’s intentions concerning the allocation, as between principal and income, of the capital gains dividends with which we are here concerned. There is no evidence that at the time of the amendment of the 1931 trust in 1935 and the creation of the 1935 trust that the settlor was familiar with the corporation of regulated investment companies or the nature of their dividend distributions. As a medium of investment those companies grew in popularity as a result of the enactment of the Investment Company Act of 1940, and the tax advantages accruing to the companies and shareholders under sub-chapter M of the Internal Revenue Code of 1954 where the company submits to federal regulation thereunder. It was not until the settlor decided in 1958 to exchange Pine’s assets for the shares of an investment company that the evidence discloses the settlor’s awareness of their form of distribution of income and capital gains dividends. Looking to the trust indentures the only reference to the treatment to be accorded to corporate dividends is found in the provisions that ‘any and all dividends payable in the stock of the corporation or association declaring or authorizing the same, and declared and authorized in respect of any stock constituting in whole or in part the principal of the trust fund, as well as all rights to subscribe for new or additional stock, shall be wholly principal and not income of the trust.’ However, those provisions do not contain any express direction concerning the allocation of dividends payable at the election of the trustees in cash or in additional shares of the Investment company. It is so conceded by the guardian. Nor may the distribution by the Investment Company be considered as a right to subscribe for new or additional shares of stock. Implicit in the term ‘rights to subscribe’ as used in the law there is contemplated an increase in the capital of the corporation giving its shareholders the right to subscribe to new shares at less than the market value of the shares. When capital gains distributions are made by the investment company, they are not accompanied by any increase in its capital stock, nor are their shareholders required to pay for the additional shares they may elect to receive. Being unable to glean the settlor’s intention concerning the treatment to be given those capital gains distributions guidance must be sought in the presumptive canons of interpretation adopted by the courts and the Legislature ‘to fill such gaps and to supply that for which the settlor has not lawfully provided.’

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A New York Probate Lawyer said this is a petition to modify restrictions on an endowment fund, pursuant to section 8-1.1 of the Estates, Powers and Trusts Law or, in the alternative, section 522 of the Not-for-Profit Corporation Law. Petitioners, Trustees of a University, seek an order authorizing the subdivision of an endowment fund created by a testamentary bequest to the College of Medicine. The Attorney General of the State of New York (on behalf of ultimate charitable beneficiaries) has reviewed the current audit of the fund and raises no objection to the relief requested in the petition.

A Kings County Estate lawyer said that a decedent died on March 9, 1985. Her last will and testament was admitted to probate by a decree of this court dated April 5, 1985.

In September 1986, Columbia University received $1,500,000 from the estate of the decedent. The University established the Professorship (“Chair”) for Clinical Medicine. As of September 30, 2009, the value of the endowment fund had increased to over $5,000,000.