Estate Administration

Published on: March 1, 2015

Objectants Submit Order to Show Cause and Cancel Notice of Pendency

by Stephen Bilkis

New York Probate Lawyers said in this contested accounting proceeding several applications seeking pre-trial relief have been submitted. Specifically said applications are as follows:

A. Application by objectants, by orders to show cause, inter alia, to amend objections and to join additional parties; and B. Application to cancel notices of pendency pursuant to Article 65 of the CPLR.

Decedent died on January 30, 1956. His will was duly admitted to probate by decree of this court entered on March 5, 1956. Letters testamentary issued thereunder to decedent’s spouse, the nominated executrix. Decedent’s will bequeathed one-third of the residuary estate to his spouse and the remaining two-thirds, in equal shares, to his three children with the further direction that the share of his two daughters be held in a “trust fund” until they each attained the age of 23 years. Decedent’s daughters attained the age of 23 years in 1959 and 1961, respectively.

Published on: February 28, 2015

Court Decides Issue Regarding Loan from Trust

by Stephen Bilkis

Probate Lawyers said that decedent Mrs. AH died in 1940. Her will admitted to probate, after minor pre-residuary dispositions, created a trust for the income benefit of her daughter M with remainder to M’s children. The trust was funded in 1946 and administered by co-trustees M, the income beneficiary and Mr. R. Mr. R died in 1959. From 1959 to June 1, 1977, the date of her death, the trust was administered by M, the income beneficiary, as sole trustee.

A New York Estate Lawyer said at her death in 1977, the remaindermen of the trust were M’s seven children, one of whom was P. M’s executor has now accounted as a fiduciary of the deceased trustee.

The account reveals that on October 9, 1963, M, as sole trustee, made a loan from the trust to P in the sum of $64,000. P executed a demand promissory note to the trust. As security, P executed an assignment of all his right, title and interest in his remainder interest, then (as now) a one-seventh share of the principal. P made interest payments on the loan from 1963 to 1968. No part of the principal of the loan has been repaid.

Published on: February 27, 2015

Petitioner Brings Action for Judicial Settlement of Trustee Account

by Stephen Bilkis

Probate Lawyers said that in this action for a judicial settlement of a trustee’s account and for a construction of the will and codicils of the testator, the trustee moves for summary judgment.

The testator died in September 1918, leaving a will and five codicils which were admitted to probate in January 1919. By his will and codicils, the testator gave his nephew, C, an outright legacy of $500,000 and created fifteen trusts. Eight of the trusts provided that upon the death of the life tenant the corpus of each trust was to be disposed of as part of the residuary estate which was left entirely to charities (hereafter charitable trusts). The remaining seven trusts provided in each instance on the death of the life tenant for the delivery of the remainder of such trust to non-charitable beneficiaries (hereafter non-charitable trusts).

By Article Twenty-Second of his first codicil, the testator provided that the charities to which the residue was lift should not receive any benefit from the estate until all other trusts and legacies were fully paid. The testator’s foresight in making this provision is demonstrated when it was determined shortly after his death that the estate could fulfill the legacies and trusts only to approximately ninety per cent thereof. By a judicial construction of this provision it was determined that as each charitable residuary trust terminated, no payment would be made to the charitable residuary legatees until the then continuing trusts and all previously terminated non-charitable trusts had been funded in full and the legacy to the testator’s nephew had been paid in full.

Published on: February 23, 2015

Court Decides Action for Partition of Real Property

by Stephen Bilkis

Probate Lawyers said that an action for partition of real property, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, dated December 5, 1983, as, after a nonjury trial, declared that defendant was the owner in fee simple of the subject premises located at 16th Avenue in Brooklyn, New York. Judgment affirmed insofar as appealed from, with costs.

The parties are brother and sister. Upon the death of their father on February 16, 1977, and the admission of his will to probate, plaintiff and defendant and their brother, L, each inherited an undivided one-third interest in three parcels of real property. These consisted of a two-family house on 66th Street in Brooklyn which was plaintiff’s residence; a three-family house on 16th Avenue in Brooklyn where defendant had resided for more than 20 years; and a parcel of land in Shirley, New York.

A New York Estate Lawyer said that the father also left money in bank accounts in trust for defendant and for her son, V, and it appears that there was a falling-out between defendant and her brothers when defendant failed to share that money with them. Nevertheless, plaintiff and defendant continued to have conversations concerning the transfer to each other of their interests in the two Brooklyn properties.

Published on: February 22, 2015

Widow Questions Will Construction

by Stephen Bilkis

In rendering her account for judicial settlement, the executrix-widow has presented a number of questions for adjudication, including construction of the will. Objections were filed by the decedent’s daughter (a devisee and residuary legatee), and a report was filed by the guardian ad litem appointed to represent the daughter’s two children who are trust beneficiaries.

A pretrial conference was held resulting in a stipulation entered on the record February 4, 1970 by which most of the objections were disposed of or withdrawn, and certain agreements were made subject to the approval of the court which will now consider all questions.

A Probate Lawyer said that the testator died on October 24, 1968 after having made a will and codicil which were admitted to probate on November 27, 1968. The will was made on November 19, 1964 while the testator was married to one MD, now deceased. Subsequent to her death he married petitioner ED and made a codicil on September 4, 1968. The codicil contained certain specific bequests and a devise, modified certain provisions in the will and in all other respects confirmed and ratified the same.

Published on: February 21, 2015

Court Hears Case Moving for Specific Performance of Contract to Purchase Land

by Stephen Bilkis

Probate Lawyers said the action by Y against BN for specific performance of a contract to purchase real property. Defendant obtained judgment, which was affirmed by the general term. Plaintiff appeals. Affirmed.

This action was brought to compel the specific performance of a contract to purchases land. The defense was that the title was not merchantable. D was the owner of a tract of land in the city of Brooklyn comprising the land in question. On the 11th day of March, 1854, he conveyed the same to J and G. On the 26th of September thereafter they conveyed the same to H by separate deeds, each of an undivided half, which were identical in form, containing the same recitals.

A New York Estate Lawyer said that the quotations hereinafter made are taken from the J deed. It contained the following: ‘Whereas, the said J and G afterwards by deeds sold and conveyed certain portions of the entirety of the premises hereinafter described to TN, WA, and BY by separate deeds of conveyances, and took back from the said TN, WA, and BY, severally, bonds and mortgages for the respective payments of the several sums therein mentioned as securities, and for the purchase moneys thereof, reference to the several deeds being hereunto had will more fully appear; and whereas, the party of the second part has agreed to purchase of the said J his portion of the entirety of the premises hereinafter mentioned, subject, however, to the several equities aforesaid.’

Published on: February 20, 2015

Court Discusses Validity of Will

by Stephen Bilkis

A Probate Lawyer said that according to sources, both cases involved issues as to the estate. In the first case, as an incident to an account by trustees of the trust for the benefit of testator’s daughter, which terminated by her death, a construction is sought of the validity of the attempted exercise of a power of appointment of the corpus of the trust under the will of testator’s other daughter. By article ‘Second’ testator created a trust of his residuary estate, the income of which was to be paid to his wife during her life. Upon the latter’s death one-third of the corpus of such trust was continued for the life of testator’s daughter, with the income payable to her during her life. On her death the principal was payable to her issue per stirpes, and in default of issue, the principal was payable to another daughter. The will further provided that if the other daughter predeceased her sister, the principal of said trust was payable to such person or persons as said other daughter directed or appointed by her will. If not effectively appointed, distribution was to be made to next of kin of the other daughter in proportions provided under the statute of distribution in effect at her death.

A New York Estate Lawyer said the daughter, the secondary life beneficiary died leaving no issue. Another daughter, predeceased her sister leaving a will which was admitted to probate. Under the third article of the will of the other daughter, her appointive power was exercised by creating further trusts for the benefit of her children, the principal payment to each child being deferred until they attained respective ages of 35, 40, 45 and 50 years. The Court holds that the appointment made under the will of the other daughter is invalid as violating the rule against perpetuities, in effect at the time of its exercise . The trust created thereunder suspended unlawfully the trust created under the testator’s will. The principal of the trust must therefore be distributed equally to said children of the said other daughter living at her death as the alternative beneficiaries under the testator’s will.

A Nassau County Probate Lawyer said that on the second case, Proceedings were brought to contest the probate of an alleged will. The Surrogate’s Court, entered a decree granting in part the proponents’ motion for summary judgment which directed specific performance of an agreement of compromise made in open court and denied contestants’ cross motion to dismiss the petition. The Appellate Division reversed on ground that it was an improvident exercise of discretion to direct testatrix’ daughters to specifically perform agreement of compromise allegedly made and recorded in open court, and an appeal was taken. Motion to dismiss the appeal granted upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the constitution.

Published on: February 20, 2015

Petitioner Bring Motio to Construe Joint and Mutual Will

by Stephen Bilkis

Probate Lawyers said this is a proceeding to construe a joint and mutual will executed by decedent and his wife on March 5, 1956. The wife died on March 31, 1964 and said instrument was probated in this Court as her last will and testament. Shortly thereafter decedent was adjudicated an incompetent. He died on November 27, 1966 and the same instrument was probated as his last will and testament on June 2, 1967. The probate decree reserved the present construction question raised by decedent’s brother for determination upon the accounting or, as now, in an independent proceeding.

A New York Estate Lawyer said the following the customary exordium clauses, the testators by paragraph Second of the will devised and bequeathed ‘all our estates and effects unto the survivor of either of us.’ Paragraph Third provides:

‘In the event that we both die simultaneously or in the same catastrophe, we hereby devise and bequeath all the rest, residue and remainder of our estate and our effects whatsoever and wheresoever the same may be situated, whereof we may be seized or possessed, or to which we may be in any manner entitled, or in which we may be interested at the time of our decease, unto our dear beloved nieces C and G, to share and share alike absolutely and forever.’

Published on: February 19, 2015

Court Reviews Action to Impress a Trust on Funds Owned by Father

by Stephen Bilkis

Probate Lawyers said that records reveal that in an action to impress a trust upon funds on deposit claimed to be the property of the father, the father moved to enjoin the his daughter, and the banks in which the moneys are deposited, from withdrawing or in any manner disposing of the same. During the pendency of the motion the father died. The father’s will, which was admitted to probate, named the daughter as the sole legatee of the father. The daughter now cross-moves to have the action discontinued and to vacate the temporary stay contained in the order to show cause which brought on the original motion. The executor of the deceased’s estate, who is also the daughter’s attorney, refuses to continue with the action and joins in asking for the relief sought by daughter. The sole objectant to the cross-motion is the attorney for the father in this action who claims a lien for services rendered herein and moves by way of separate petition to impress such lien under section 475 of the Judiciary Law.

A New York Estate Lawyer said that the father’s action involved approximately $30,000. Immediately after the service of the summons and complaint, together with the motion papers containing the stay, the father and his daughter arranged for a settlement. The father notified his attorney to discontinue the action. To work out the mechanics of the settlement the father’s attorney adjourned the motion containing the stay but in the meanwhile the father died. The terms of settlement provided that the daughter would retain the bulk of the money in dispute except that $1,300 would be turned over to the father and that she would pay the funeral, doctor’s and hospital bills in connection with her late mother’s last illness and funeral, which amounted to approximately $1,800. The attorney asks for a lien in an amount of $6,000 to $7,500. No agreement between the attorney and the father had been made with respect to the attorney’s fees. Admittedly the estate of the father is in sound financial condition, having upwards of $100,000 exclusive of the moneys involved in this action, and it is willing to pay the attorney’s just claims. Under these circumstances the wishes of the father to discontinue the action should be respected and given effect.

Westchester County Probate Lawyers said that it was was aptly said in Lee v. Vacuum Oil Co.: ‘We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own case, and to determine when the litigation shall cease, and how far it shall be extended. The client still remains the lawful owner of the cause of action, and is not bound to continue the litigation for the benefit of his attorneys when he judges it prudent to stop, provided he is willing and able to satisfy his attorney’s just claims. In fact the lien under the agreement, was intended for and operates only as security for the attorney’s legal claims, and, unless those are prejudiced by the client’s contract, she has unrestricted control of the subject of the action, and the terms upon which a settlement shall be effected.’

Published on: February 18, 2015

Claimants Move to Dismiss Claims of Executrix

by Stephen Bilkis

A Probate Lawyer said on the records, this is a motion by claimants to dismiss the petition by the executrix for disallowance of their claims for accounting services allegedly rendered to testator. The ground for the motion is that this court was ousted of jurisdiction to adjudicate the claims because of the civil court action on the claims brought by claimants against the estate within 60 days after their rejection by the executrix. The opposition is based on the fact that the claims had been presented once before to the executrix, as preliminary executrix and rejected by her as such, and that the civil court action was not commenced within 60 days after such prior rejection, thereby requiring determination of the claims in this court either upon the accounting or, as requested, in this proceeding.

The sole issue involves the validity and effect of the prior presentation of the claims and rejection thereof by executrix as preliminary executrix. Claimants contend that as preliminary executrix, she had no power to receive and reject claims; that they were not bound by such rejection; that only the presentation of the claims to executrix was valid and that they were within their rights to commence the civil court action within 60 days from date of rejection by executrix. The two cases cited by claimants do not concern the issue at hand, nor do they in any respect support claimants’ argument. In the first case the court held in abeyance the executor’s application to disallow the creditor’s claim pending expiration of the short statute of limitations in order to afford the creditor an opportunity to sue before such expiration. The second case, decided by this court, discusses the statutory powers of a preliminary executor and stresses that they are wider than those of a temporary administrator. If anything, that decision leads to the conclusion that rejection of a claim by a preliminary executor is as effective and binding as his other functions in the administration of the estate, subject to specific restriction by statute or court order of which none is present here bearing upon the issue.

The executrix relies upon Titus v. Poole, wherein a claim based on fraud was presented to the executors and rejected, whereupon civil action thereon was commenced promptly but resulted in a non-suit. Thereafter the claim was presented to the executors again, based upon breach of warranty. After its second rejection action thereon was commenced promptly but more than six months (the then applicable limitation) after the original rejection. The court said: ‘The plaintiff, therefore, by the presentation of his original claim, under the statute subjected himself to the conditions which attached on its rejection, and thereupon the statute commenced to run against any cause of action founded upon the transaction embraced in the claim, whether an action for deceit or for breach of warranty. The party who presents a claim which is rejected cannot be permitted to evade the statute of limitations by successive presentations of claims founded on the same transaction, but varying in form or detail.’ However, the short statute of limitations, otherwise a bar to the action, was held inapplicable because the case was brought directly within the saving provision of another statute permitting a complainant whose action was terminated by non-suit to commence a new action within a prescribed period of time after judgment, with which complainant had complied. But the quoted rule is applicable in the instant matter where no saving statute is involved, and SCPA 1810 bars claimants’ pending civil court action, provided the earlier rejection of the claims by a preliminary executor is binding and effective.