Articles Posted in Suffolk County

A Probate Lawyer said in this Estate action, the defendant moves to dismiss the plaintiff’s complaint or in the alternative an order staying the action as against him. The co-defendant cross-moves to dismiss the plaintiff’s complaint or in the alternative an order staying the action against her. The co-defendants cross- move to dismiss the plaintiff’s complaint as against them, as well as an award of costs and disbursements. The motions are granted to the extent that this matter shall be stayed pending the completion of the federal bankruptcy proceedings.

A Estate lawyer said that the defendant is a principal of a Company that has its principal place of business at New York. It is acknowledged that co-defendant was a member of company. But in support of her cross-motion to dismiss, she submits a copy of an Agreement of Sale dated June 8, 2012 wherein Defendant agrees to buy her portion of the company.

The plaintiff alleges that on or about July 27, 2011, the company entered into an agreement (Treasury Management Agreement). This agreement set forth the terms of the company’s use of Funds Transfer/Wire and Remote Check Deposit Service. The funds transfer service allowed the company to make wire transfers from its accounts with the plaintiff to accounts held at other banks. The remote check deposit service allowed Richmond Wholesale to scan and deposit checks remotely from it’s office.

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A Probate Lawyer said the question presented on this record is whether the trusts created by the will of CMR, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix, at her death, was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits, and income of the trust-estate for the support and maintenance of two children of the testatrix during their lives, respectively, with remainder, on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority, and without issue, the whole estate is to be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then, on the death of the longest liver, the whole estate is given absolutely to designated beneficiaries. Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would in that event be but for one life only; but if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share, therefore, there might be a suspension for two lives, but this would be within the limit allowed by law.

An Estate Lawyer said there would be no difficulty in sustaining the limitations in the will, if the period of suspension in this case is reckoned from the death of the testatrix, and the will only is to be regarded in determining the validity of the trusts. The statutory limit of suspension of the power of alienation of real estate is two lives in being at the creation of the estate, and a minority, and substantially the same rule applies to limitations of personal property. By another section of the statute it is declared that the delivery of the grant, where an expectant estate is created by grant, and where it is created by devise, the death of the testator shall be deemed the time of the creation of the estate. If nothing is to be considered in this case except the terms of the will, and these two sections of the statute, no doubt could be entertained of the validity of the trusts in the will; but if the will was the execution of a power of appointment vested in the testatrix, and not an exercise by her, as the owner of the property devised and bequeathed, of the jus disponendi, incident to ownership, a new element is introduced, and the validity of the trusts in the will is to be considered in view of the trust-deed of January 6, 1853, and the provisions of the statute of powers. By section 128 of that statute it is declared that ‘the period during which the absolute right of alienation may be suspended by an instrument in execution of a power shall be computed, not from the date of the instrument, but from the time of the creation of the power. Section 129 declares that no estate or interest can be given or limited to any person by an instrument in execution of a power which such person could not be capable of taking under the instrument by which the power was granted; and by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted.

A Westchester County Lawyer said it is claimed in behalf of the respondents that the will of Mrs. CMR was merely an execution of a power of appointment reserved in the trust-deed of January 6, 1853, made between the testatrix (then CMF) of the first part, and GSR and others of the second part, and that, construing the will in connection with the trust-deed and the provisions of the statute of powers, the trusts created by the will contravened the statute, for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz., upon the lives of the two children of the testatrix, who, though living when the will was made, were not born until long after the trust-deed creating the power had been executed. The consequence is claimed to follow that the will was an unlawful attempt to suspend the power of alienation upon a contingency not authorized, viz., the lives of persons not in being at the time from which, by section 128 of the statute of powers, the suspension must be computed. The trust-deed was made in contemplation of the marriage of the settlor, CMF, with GSR. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts, or incumbrances of her husband, and to secure the principal to her, if she survived her husband; or, in case she should die during coverture, to her appointees by will; or, if she should make no appointment, to such persons as at her death would be her heirs, under the laws of New York, as if all the property was real estate.

Records reflect that for reasons unbeknownst to the court at this time, the decedent, a 19 year old female, was at a Hotel located approximately one half mile from her residence, where she resided with her mother. While at the Hotel, the decedent made her way to the roof of the Hotel where she plunged to her death. The mother filed for Limited Letters Testamentary for the estate administration, which were issued to her by the Surrogate County court in order to bring an action for a potential wrongful death action. The mother’s Verified Complaint read that at the time of the commencement of the action, she was a resident of the County. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the decedent’s conscious pain and suffering up until her death. The defense counsel moved to transfer the venue.

A Probate Lawyer said that the mother’s counsel, whose law office is located in Kings County, selected Kings County as the venue in the Summons of this action based on the purported residence of the decedent. Yet, the Verified Complaint lists Richmond County as the decedent’s residence. Article 5 of the CPLR sets forth the rules governing proper venue. Section 503 states “the place of trial shall be in the county in which one of the parties resided when the action was commenced.” It has long been held by the courts that residency, for purposes of venue, is defined as “where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.” It is further established that any documents or “indicia of residence acquired after the commencement of the action are irrelevant to the determination of residency,” for purposes of venue. In Siegfried v. Siegfried, the Appellate Division, Second Department stated that the court should not consider factors such as bank statements, voter registration, and a library card that came about after the commencement of the action. Documentary evidence that can prove a person’s residence include driver’s license, voter registration card, and utility bills. Simple letters of correspondence sent to the purported address will not suffice. Furthermore, mere affidavits with conclusory statements, without being buttressed by ample documentary evidence, is not enough to prove a person’s residence. However, an affidavit supplemented with rent receipts, telephone bills, and lease agreements does create the “necessary indicia of residency.”

An Estate Lawyer said that on both the Verified Complaint and the Amended Verified Complaint, the first allegation stated that she was a resident of Richmond County at the commencement of the action. This is not merely an “unfortunate typographical error” or a “regretful misreading” as she contends. It clearly stated that she was a resident of Richmond County. Here the complainant has put forth numerous documents to try and prove her residency is Brooklyn, including tax returns, cell phone bills, pay stubs, and bank statements. Only one document, a pay stub dated December 2009, was sent to the Brooklyn address before the start of the action. All the other letters and forms are undated or dated after the commencement of the action and are therefore, irrelevant in trying to prove residency.

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Probate Lawyers said before the court is a motion to dismiss, pursuant to CPLR 404 for lack of subject matter jurisdiction, filed on behalf of the co-executor of the estate of the deceased herein. The motion seeks dismissal of a petition filed on behalf of another co-executor of decedent’s estate, which petition requested a court order directing the co-executor, and a corporation, doing business as a stock transfer agent, to execute documents necessary to complete the transfer of another corporation, corporate stock certificates, currently registered in the name of the decedent, to another in his individual capacity.

An Estate lawyer said that the decedent died on May 14, 2010, leaving a last will and testament dated August 6, 2003. The decedent was survived by three children. The will nominated co-executors and directed that each receive an equal one-half share of the decedent’s residuary estate. The will was admitted to probate and letters issued to co-executors on October 27, 2010.

In his petition, the executor alleges that the decedent gifted two stock certificates to the executors on or about December 29, 2004, by endorsing the certificates in blank, communicating that he was making a gift, and physically delivering the certificates to the executor. He further alleges that the decedent’s intent was to make a gift to the executor of all of decedent’s interest in the stock, and that the gift was then accepted. Photocopies of the stock certificates have been filed and the reverse side of each certificate, which is a standard form for the sale, assignment and transfer of the shares of stock, reflects the date of December 24, 2004 and the decedent’s signature; the balance of each form is entirely blank. On the certificate, the decedent’s signature does not appear on the proper line for a transfer of the shares.

A New York Probate Lawyer said the decedent died on May 1, 2004, leaving a will which was admitted to probate on July 7, 2004. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of ghem. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to his son.

A New York Estate Lawyer said that the son originally filed a First and Final Accounting of his proceedings covering the period May 1, 2004 through January 31, 2008. Thereafter, he filed a document entitled “First Interim Account of the Estate.” This document covers the period from May 1, 2004 to January 31, 2008, the same period covered by the First and Final Accounting.

Another son opposed the probate. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent make a loan to him. In addition, the parties acknowledged that the petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.

A New York Probate Lawyer said that decedents were husband and wife, presumably died simultaneously in a fire in their home on December 13, 1959. Decedents left reciprocal wills which were duly admitted to probate in Wayne County on January 15, 1960. On that day Letters Testamentary on their wills, both late of the Town of Lyons, New York, were issued to the executor of the City of Detroit, Wayne County, Michigan.

The executor petitions for the Judicial Settlement of his first intermediate account in the two estates. In such petitions he asks that this Court determine to whom the $16,813.20 insurance settlement, received on account of the fire loss to the real estate of the decedents at New York, should be paid.

A New York Estate Lawyer said the question before the Court is whether the sum of $16,813.20, which represents the insurance settlement because of the fire loss to the real property should be distributed as part of the residuary estates of the decedents or whether the said sum should be paid to specific devisee of this real property, the Church.

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New York Probate Lawyers said this is a proceeding by the petitioners, and a Bank, for the judicial settlement of their account as surviving trustees of an express trust created by the father in a letter writing dated March 10, 1902, and for the construction of the trust instrument in conjunction with the will of the testator for whose immediate benefit the trust was created.

A Kings County Estate lawyer said that in March, 1902 testator had four sons. On March 10th of that year he established the instant trust in a letter addressed to Joel and a few days later delivered the securities constituting the corpus of the trust to his 2 sons, as trustees.

The settlor augmented the corpus of the trust pursuant to instruments executed in 1905, 1907, 1909, 1910 and 1911. On December 24, 1909 the 2 sons as trustees, properly designated their brother (now a co-petitioner) as a co-trustee.