Estate Administration

Published on: February 16, 2015

Court Deals with Conflicting Interpretation of a Will

by Stephen Bilkis

A Probate Court said records reflect that this construction proceeding raises questions in respect of the validity of a trust under decedent’s will and the distribution of its remainder. The decedent died survived by his widow and six children. The will was admitted to probate and Letters testamentary and letters of trusteeship were duly issued. Complainants are the issue of the testator’s son. They urge that the trust created under paragraph ‘Fourth’ unlawfully suspends the power of alienation and hence that the principal thereof must be distributed as in intestacy; or, alternatively, that the language of the will should be construed so as to include their father, and his issue, as remaindermen entitled to a share of the principal of the trust upon its termination. They allege that the trustee of the trust under the will of their father has refused to bring the proceeding after demand. The answer interposed by the surviving executor and trustee denies the allegations of the petition, sets forth several defenses thereto including among others that complainants are not proper parties in interest, that the will provision does not require construction and that by reason of article ‘Seventh’ of the will constituting an ‘in terrorem’ provision, they have no status in these proceedings.

A New York Estate Lawyer said the court noted from the first paragraph of article ‘Fourth’ that the use of the words by testator of ‘my children’, naming them specifically clearly showed that he did not want the complainants’ father to have any interest in the estate. Similarly, although the contingencies expressed therein did not take place, the immediately following two paragraphs of article ‘Fourth’ again confirmed this intent by referring to the children ‘hereinbefore mentioned’ and by repeating the words my ‘said children’, ‘said child’ and ‘issue of said child’. Article ‘Second’ of the will recites that no provision is made for testator’s son, nor his wife, nor any other member ‘of his family’ by reason of the fact that testator in his lifetime entered into an agreement with his son, giving him and agreeing to give him a substantial sum of money ‘which sum he is presently receiving and will receive under said agreement and therefore no provision whatsoever is made for him in this Will in any way with respect to any trust fund hereinafter established.’

Manhattan Probate Lawyer said the status of complainants as proper parties in interest to bring this proceeding and to seek a construction of the will was determined by this Court and such determination is adhered to. With respect to the ‘in terrorem’ provision of article ‘Seventh’, the Court holds that it is not applicable to a distributee who seeks a construction of any of its provisions. Decedent’s widow, upon whose life the primary trust is measured, died on October 15, 1955. One of the sons, whose life measures the secondary term, is living. Decedent’s grandchild, during whose minority a further term was to be measured, attained her majority on May 1, 1959. Were the said son to have died during the secondary term of the trust and prior to grandchild’s attainment of her majority, the continuation of the trust during the minority of the grandchild would have been an unlawful suspension of alienation. What then is the effect of such possible unlawful suspension in the circumstance that the grandchild has attained her majority.

Published on: February 15, 2015

Court Hear Petition Action

by Stephen Bilkis

A Probate Lawyer said that according to sources, this is a partition action in which defense move, pursuant to Rule 107, subdivisions 2 and 3 of the Rules of Civil Practice, to dismiss the complaint on the grounds that the complainants have no legal capacity to sue and that there is another action pending between the same parties for the same cause. The issue of legal capacity to sue presented here may be determined in construction of paragraphs ‘Third’ and ‘Tenth’ of the will, the basis for the action in partition. Paragraph ‘Third’ of the will devises two parts of the remainder of the estate to the defendant and one part each to the complainants.

Paragraph ‘Tenth,’ subdivision 7, provides that the executors may sell or exchange any property (except any specifically bequeathed herein) at public or private sale at such price for cash or upon credit or partly for cash and partly upon credit, and generally upon such terms as my executors may deem proper and to make and deliver any and all instruments in writing necessary or convenient for any such purpose or purposes’.

A New York Estate Lawyer said that the defense contend that the above quoted power to sell is tantamount to a devise to the executors with a direction for sale and that under the circumstances an equitable conversion of the real estate into personal property occurred barring a partition action. The facts contained in the authority cited by defendants are clearly distinguishable from the situation presented herein. The underlying principle of equitable conversion hinges upon the language and the expressions used by the testator in the direction of sale of the real estate. In the absence of an imperative direction to sell, there can be no equitable conversion. As stated in White v. Howard: ‘To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of and obligatory upon the trustees to sell it in any event. Such conversion rests upon the principle, that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result.’

Published on: February 14, 2015

Court Discusses Powers of Surrogate Court

by Stephen Bilkis

A Probate Lawyer said that sources revealed that this case deals with a slip and fall accident. Defense Attorneys have now moved this court to dismiss the within action with prejudice on the basis that their client has been deceased fro sometime and as such has no standing to be a party to litigation, could not have been properly served, and did not own the said premises on the date of the injury. In addition, the defense asserts that even if a proper defendant could now be found and interposed, said action would be time barred inasmuch as the applicable three year statute of limitations has expired. The complainant asserts that defense “motion should be denied due to the fact that their client is still listed as the owner of record and there is nothing in the record which would have put complainant on notice of the fact the the owner had died or that title had changed.” The complainant has also submitted a cross motion for leave, in the interest of justice, to amend her complaint to add the representatives of the owner’s estate as a party defendant. The complainant notes that although this action was commenced by the filing of a summons and complaint, to which the defense served an answer and a demand for a bill of particulars and for the complainant’s deposition, it wasn’t until after the expiration of the applicable statute of limitations that defense counsel sent her a copy of the owner’s death certificate. Complainant further argues that her cross motion should be granted in the interest of justice inasmuch as the defense cannot claim surprise or prejudice thereby.

A New York Estate Lawyer said the Court of Appeals, in The Matter of Stern, expressly found that “The New York State Constitution confers jurisdiction on the Surrogate’s Court over all actions and proceedings relating to the affairs of decedents, probate of wills, estate administration and actions and proceedings arising thereunder or pertaining thereto, and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law. The codification of the Surrogate’s Court Procedure Act in 1966 was intended to implement the powers of that court `to permit all matters relating to affairs of decedents to be determined in the court settling the estate’. The Surrogate’s Court Procedure Act specifies that the Surrogate’s Court’s general jurisdiction encompasses `all the jurisdiction conferred upon it by the constitution and all other authority and jurisdiction now or hereafter conferred upon the court by any general or special statute or provision of law, including this act.

According to EPTL section 11-3.2(a)(1), “No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent.” “Subdivision (a) of CPLR 1015 provides that “If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties” and the action could therefore be continued against the personal representative of the decedent. The Appellate Division added, however, that “where the personal representative is not yet a party to the action, service of the notice of motion of substitution must be made in the manner prescribed for service of a summons under article three of the CPLR. “The procedure for revival of an action by substitution of the personal representative, far from being a mere technical formality, is rather, the recognized means by which a court obtains jurisdiction over the personal representative”, and it is therefore “necessary that the representative be served with process and accorded ‘all the procedural safeguards required by due process of law’ before the court may enter a binding judgment against him. Thus, service of the papers in the manner prescribed for motion papers generally will not suffice.”

Published on: February 13, 2015

Plaintiff Brings an Accounting Action regarding Family Trust

by Stephen Bilkis

A Probate Lawyer said that records reflect that the Testatrix’ will give the sum of $2,000 in trust for the benefit of the beneficiary who was entitled to the corpus and accumulated income thereof when he became 21 years of age. The will was admitted to probate in 1945 and the executrix thereunder qualified. It is undisputed that the estate was sufficient to pay all trusts and other bequests in full. After letters testamentary were issued, testator qualified as trustee for the benefit of the said beneficiary. By his objection to the trustee’s account, the beneficiary asks that the trustee’s estate be surcharged for the amount of the fund and income thereon. The testator asserted ‘Not a single dollar of these trusts funds was ever received by me’. Testator in an affidavit, filed in this Court before his death, offered no explanation for his failure to take the fund into his possession and did not attempt to justify his failure. Relying on Farmer’s Loan & Trust Co. v. Pendleton, defense assert (1) it was beneficiary’s burden to establish affirmatively that the deceased trustee was negligent in not reducing the fund to his possession, and (2) his representatives upon an accounting are chargeable only for the amount found to be in their hands.

A New York Estate Lawyer said the court ruled that there are significant distinctions between the cited case and the instant matter. The Court of Appeals pointed out: ‘The character of this action should be kept in mind. It is purely an action for an accounting, and nothing else. Therefore the plaintiff was entitled only to the relief appropriate to such an action. It was not an action for breach of trust.’ In that case there were two trustees and it appeared that a portion of the fund in question was in the hands of the co-trustee for which the testator would not be liable unless the fund subsequently came into his hands. Further distinctions could be pointed out but these are enough. In the instant matter the basis of the claim of the beneficiary is the admitted failure of the testator to take into his possession the fund concededly available. In support of their position, testator quote this from the cited decision, supplying emphasis: ‘The contestants were required to show by competent proof the amount of the estate in the hands of the decedent as executor or trustee thereof, and his representative upon an accounting was chargeable only for the amount thus found to have been in his hands.’ That paragraph continues this way: ‘The defendant being unable to state the account the account so far as it related to any portion of the trust fund that came into the hands of her testator, if any, the plaintiff, before it was entitled to a final judgment for any sum, was required to show not only that a portion of the fund came into the hands of the defendant’s testator, but also to show the amount; and the court could properly charge the defendant only with that amount, as in no case will a trustee be held for more than he receives, if he is in no fault and has committed no breach of the trust.’

Queens Probate Lawyers said that in Bank of New York v. N. J. Title Guarantee & Trust Co., the court approved the proposition that a trustee is liable to the beneficiary if he neglects to take proper steps to redress a breach of trust committed by a predecessor fiduciary, and observed that this was too clear to require detailed argument. In Matter of Kistler’s Will, it was held that, in view of the assumption of the trust duty imposed by the terms of the will, the trustee’s failure to reduce the fund to possession presented a potential basis of liability in equal measure as if the trustee had performed affirmative improper acts, noting ‘Nonfeasance is as potent a ground for surcharge as misfeasance.’

Published on: February 12, 2015

Court Rules on Proceeding to Settle Executors Account

by Stephen Bilkis

Sources show that this is a proceeding to settle the executor’s account of a Trust Company. Objections have been filed on behalf of the deceased to the said accounting. The objectant claims title to one-third (1/3) of all property received by the executor as set forth in the account, or, in the alternative objectant seeks to recover the alleged consideration given for the promise to exercise the powers in his favor. The remaining objections are to any charges being made against the property claimed by the objectant.

A Probate Lawyer said the objectant is the only child of the decedent’s marriage to his first wife. At the time of his marriage, and at all times thereafter, decedent was the donee of a testamentary power of appointment in each of two trusts. The first of these powers in a general power of appointment granted to the decedent under the will of his mother. The second is a general power of appointment reserved to the decedent under an inter vivos trust indenture, made by the decedent as grantor. Sometime in 1942 the decedent and his first wife, entered into a separation agreement which provided that in consideration for the wife relinquishing all of her marital rights and claims to the decedent’s property, the decedent would pay to her the sum of $450, plus $100 per month to be used for the support of the objectant until he reached the age of 21 years. The decedent further agreed to maintain irrevocably certain policies of insurance on his life with the objectant as designated beneficiary. No evidence was offered at the hearing in respect to the existence of any such life insurance. The only payment made by the decedent under the 1942 agreement was the sum of $250, paid to the wife at the time of the execution of the agreement. None of the monthly payments was made.

A New York Estate Lawyer said he decedent and the wife were divorced pursuant to a decree of the Circuit Court, Florida. Both the decedent and the wife remarried. A judgment was obtained against the decedent in the sum of $1,567.90 for unpaid monthly installments due under the 1942 agreement. Thereafter, the decedent, wife, and their respective spouses entered into an agreement in order to ‘amicably settle and adjust’ these differences. The 1944 agreement provided that the wife’s second husband, would adopt the objectant. The decedent consented to the adoption and agreed to lend all necessary assistance to effect same. The wife agreed to promptly procure a satisfaction of the $1,567.90 judgment previously entered, and the wife and her second husband further agreed to hold the decedent safe and harmless from making any further payments of $100 per month as required by the 1942 agreement. Finally, the decedent agreed to exercise his testamentary powers of appointment irrevocably in such a manner which, in view of subsequent events, would result in the objectant receiving a one-third interest in the principal of the trusts. Simultaneously, with the execution of the 1944 agreement, decedent executed a Will providing for the exercise of the power in objectant’s favor. On that very same day an order of adoption was made providing for the adoption of the objectant by the second husband.

Published on: February 11, 2015

Court Hears Motion to Substitute Executor for Will

by Stephen Bilkis

A Probate Lawyer said this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.

The branch of the motion to substitute the executrix as plaintiff in this action is granted.

Published on: February 10, 2015

Plaintiff Brings Motion to Substitute Executor

by Stephen Bilkis

Probate Lawyers this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.

The branch of the motion to substitute the executrix as plaintiff in this action is granted.

Published on: February 9, 2015

Plaintiff Brings Declaratory Judgment

by Stephen Bilkis

A Probate Lawyer said in this action for a declaratory judgment in which the defendants have counterclaimed for judgment declaring the rights of the parties as they claim them to be, the latter have moved for summary judgment as prayed for in their counterclaim. The plaintiffs, in accord with the movants’ contention that no triable issues of fact are presented, oppose the motion solely in so far as the declaration of rights sought by the defendants is concerned and seek summary judgment as prayed for in their complaint.

A Kings County Probate lawyer said that the plaintiffs’ testatrix died a resident of this County on August 5, 1959. Her Last Will and Testament dated April 23, 1959, was duly admitted to probate in the Surrogate’s Court, Queens County, on October 13, 1959, and letters testamentary were on that day duly issued to the plaintiffs, who have qualified and are acting as such at this time.

During the lifetime of the testatrix and on the date of her death, she was the owner of 600 shares of the capital stock of the defendant store corporation and 51 shares of the capital stock of the defendant and realty corporation. By paragraph Fourteenth of her will, the plaintiffs’ testatrix bequeathed 350 shares of her store corporation stock to the defendant and 250 shares thereof to the defendant, to be theirs absolutely and forever.

Published on: February 8, 2015

Court Deals with Conflicting Interpretation of a Will

by Stephen Bilkis

Probate Lawyers said before the Court is the petition of Mr. Dm for the construction of Clause Second of the Last Will and Testament of his mother, Mrs. M. The decedent died June 14, 1984 survived by her son, Dm, the petitioner herein, as her sole distributee. Mrs. M’ Will was admitted to probate by this Court on July 12, 1984.

The entire Will is only five paragraphs long and the dispositive provisions are contained within Clause Second in the form of a Residuary Testamentary Trust given to the Trustee:

“To hold, administer, invest and reinvest for the benefit of my son, DM and to collect the income thereof and pay any lawful expenses incidental to the execution of the trust and to pay out to my son the sum of $500.00 each month until such time when the trust fund is depleted of all its assets. However, in the event that said assets reach a minimum of $2,500.00, the Trustee may in his discretion terminate said trust and after payment of any remaining expenses, disburse remaining moneys to my son above mentioned.”

Published on: February 7, 2015

A Determination is Sought as to the Validity of a Devise of Real Property

by Stephen Bilkis

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.