New York Probate and Estate Administration Lawyer Blog

Published on: June 30, 2015

Court Discusses the Power of a Surrogate to Order a Bond

by Stephen Bilkis

The question turns upon the power of the surrogate to require an administrator’s bond in double the value of the personal estate in this state (New York) of Mr. JP, who at the time of his death was a resident of New Jersey, as a condition to the grant of ancillary administration. The personal estate of the decedent at the time of his death consisted of personal effects of the value of about $2,500 in New Jersey, and of stocks and securities of the value of about $40,000, deposited with a safe-deposit company in the city of Brooklyn.

On the 1st day of August, 1889, letters of administration were issued by the probate court of New Jersey to the widow of the decedent upon her petition setting forth that the personal estate of the decedent in that state did not exceed the sum of $2,500. The administratrix, on the granting of the letters, executed her bond with sureties in the penal sum of $5,000 to the surrogate of Monmouth county, N. J., where the decedent resided, conditioned to account for the personal estate of the intestate ‘in the state of New Jersey,’ which has or shall come to her hands. The petitioner did not disclose in her petition the fact that there was any other personal estate of the decedent beyond what was in his actual possession in that state at his decease. On the 1st day of April, 1890, the widow, who with her infant child had become a resident of Brooklyn, applied to the surrogate of Kings county, by petition, for ancillary letters of administration, the petition for the granting of the letters in New Jersey, and that the decedent left personal estate in Kings county of the value of about $40,000, and that one Mr. MP, of Brooklyn, is or claims to be a creditor of the decedent, and that there was no other person claiming to be a creditor known to the petitioner.

The surrogate thereupon issued a citation to creditors of the decedent, and on the hearing Mr. MP presented affidavits to the effect that the decedent was indebted to him in the sum of $7,371.73, with interest; that the decedent, at his death, was the owner of securities to the amount above mentioned, deposited in a safe-deposit company in Brooklyn; that the only security given by the administratrix was the bond of $5,000, and that she had no pecuniary responsibility apart from her interest as widow in the estate of the decedent. The surrogate made an order that ancillary letters be granted to the widow on condition that she should give a bond, with sureties, to be approved by the surrogate, in a penalty of double the value of that part of the personal estate of which the deceased died possessed, which at his death was within the county of Kings.

Published on: June 29, 2015

Petitioner Asks Court to Appoint an Appraiser

by Stephen Bilkis

The application by LK, as executrix of the last will and testament of Mr. DK, deceased, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. An order of the surrogate of Kings County, confirming the report of the appraiser, having been affirmed by an order of the appellate division of the Supreme Court, the applicant now appeals.

This is an appeal from an order of the appellate division of the Supreme Court in the Second department, affirming an order of the surrogate of Kings County, which confirmed the report of an appraiser appointed to fix the transfer tax upon the property of the estate of Mr. DK, deceased. Mr. DK died in the city of Brooklyn, June 29, 1895, leaving a last will and testament, which was admitted to probate on the 10th of the following September. LK, the appellant, alone qualified as executrix thereof. She subsequently petitioned the surrogate of Kings County for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.

The will of the decedent, so far as material to the questions involved on this appeal, is as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situate, unto my three sisters, M, A, and L.’ Mary died prior to the death of the testator. The appraiser fixed the tax upon the theory that the testator died intestate as to one-third of his estate, by reason of the predecease of M; that A and L each took one-third of M’s share as next of kin; and that the remaining one-third passed to nine nephews and nieces of the decedent, as their share of the estate which was undisposed of by the will. The appraiser filed his report with the surrogate December 10, 1895, and on the same day the surrogate made an order confirming it, and assessing the tax at the amount mentioned therein. From that order an appeal was taken to the surrogate, and the former order and report of the appraiser were confirmed, and an appeal was taken to the appellate division of the Supreme Court, where the latter order was affirmed.

Published on: June 23, 2015

Court Discusses Validity of Will

by Stephen Bilkis

This controversy involves the validity and effect of certain portions of the will of Mr. X, late of the city of Brooklyn, deceased, and the correctness of the directions contained in a decree of the surrogate of Kings County as to the disposition of certain moneys of his estate. Mr. X was a resident of Brooklyn and died in that city on September 5, 1895, leaving a last will and testament, which was admitted to probate on the 1st of October in the same year. His executors were and are Mrs. MH, his widow, Mr. E, and Mr. J, president of the Kings County Trust Company.

The will directs the executors to deposit in the Kings County Trust Company all the testator’s securities and moneys to constitute what he terms in his will the general fund of his estate. It bequeaths to his wife, Mrs. MH, all the testator’s personal property in his Brooklyn residence and devises to her his summer residence in the town of Lee, in Berkshire County, Mass., and all his real estate there for the period of her natural life. At the death of his wife, or sooner, if she consents, the executors are directed to sell said real property and deposit the proceeds to the credit of the general fund of the estate already mentioned. The executors are further empowered to sell any of the testator’s personal property not otherwise disposed of whenever, in their judgment, it shall be for the interest of the estate, and to deposit the avails thereof in the same general fund. Out of this general fund the executors are to make payments as follows: (1) Twelve hundred dollars a year to the testator’s wife and all taxes and expenses for necessary repairs upon his Brooklyn residence. (2) Six hundred dollars a year to the testator’s sister, Frances Wheeler, during the lifetime of the testator’s wife, and upon her death, if the said sister survives her, a sum sufficient to insure an income of $600 per annum for the remainder of her life . (3) To the testator’s niece, HB, $400 a year during the life of the testator’s wife, and upon her death, if the niece survives, a sum sufficient to insure an income of $400 per annum for the remainder of her life.

Upon the death of the wife the executors are directed to appropriate from the general fund of the estate the sum of $35,000, to be expended in the erection of a statue to Lafayette .

Published on: June 22, 2015

Court Decides the Disposition of Real Property

by Stephen Bilkis

This is an application for a construction of the will of testatrix with respect to the intended disposition of certain real property. Testatrix’ holographic will dated October 28, 1931, was admitted to probate on September 25, 1956. In paragraph ‘Third’ of the will, testatrix provided in part as follows: ‘I give to Ms. M (her daughter) In trust for Mr. T her god child and my grandson my home with all furnishings. I positively wish no encumbrance such as a mortgage or lean (sic) to be placed upon this property. This home is not to be rented or leased for any business whatever. I give to my daughter to make sure that she may have a home during her life time. At her death this property goes to her God-child.’ The remainderman, Mr. T, survived testatrix but has since died. Petitioner seeks leave to sell the real property described in the will.

In the opinion of the Court, testatrix was primarily concerned with the welfare of petitioner, her daughter. Although she used the terminology ‘in trust’ in paragraph ‘Third,’ a careful analysis of the will as a whole reveals that it does not impose the duties of a trustee upon petitioner. The words were used with a layman’s conception of their meaning.

In the absence of an express or implied direction for the payment of income by a trustee to another as beneficiary, no valid trust is created as explained in the case of In re Hasketts’ Will, (4Misc.2d 1065, 159 N.Y.S.2d 225, 227). Testatrix gave to petitioner both the actual possession of the realty and the rents and profits. Under such facts, the statute creates a legal life estate with the same incidents of tenure as if the bequest had taken such form. Such a life estate is a freehold estate giving the beneficiary the full possession, use and enjoyment of the property for the duration of her natural life.

Published on: May 26, 2015

Court Listens to Proceeding to Establish a Lost Will

by Stephen Bilkis

This is a proceeding to establish a lost will pursuant to the provisions of Section 143, Surrogate’s Court Act. The decedent died February 11, 1958. The Court is satisfied on the testimony of the subscribing witnesses that on February 4, 1958, decedent duly executed a will in accordance with the provisions of Section 21, Decedent Estate Law; that at the time of execution he was fully competent to execute a will and under no restraint.

No copy of the will was produced but the testimony of the subscribing witnesses satisfactorily established its contents. They testified that the will was on a printed form folded at the top to make four pages; that the testamentary dispositions and the nomination of the executrix and alternate executor were typed on the first page, the second or reverse side of the first page was blank and on the third page was the testimonium clause followed by the signature of the decedent. There was an attestation clause after decedent’s signature below which the subscribing witnesses had placed their signatures and addresses, Mrs. J.P.M., XXX Eastern Parkway, Brooklyn, N. Y., and Mr. GW, XX Union Street, Brooklyn, N. Y. They further testified that by the will decedent directed payment of his debts and gave the rest of his property and possessions to Mrs. DM; that if she did not survive him decedent left all his property to Mr. GM and Mrs. VM, son and daughter of said Mrs. DM. The will nominated Mrs. Dm as executrix; in the event of her death, Mr. GM and was to serve as executor and decedent directed that neither of them should be required to file a bond.

There was a further provision in the will in the nature of a request that a fence be erected around or on the side of the property wherein Mrs. DM then resided. The witness, Mrs. J.P.M. testified that on the day before decedent’s funeral she was at the home of Mrs. DM, who showed her a bundle of papers which she said were all of the decedent’s personal papers ‘and everything’. Among the papers was the instrument which the witness identified as the will which decedent had signed and to which she and Mr. GW had acted as witnesses. She recognized decedent’s signature thereon, her own signature and that of the other subscribing witnesses. Both witnesses testified that never before had they acted as witnesses to a will.

Published on: May 25, 2015

Court Discusses Jurisdiction of Surrogate Court

by Stephen Bilkis

The petitioner in this custody proceeding is the natural mother of a child born in 1976 in Brooklyn. The respondent is the child’s paternal grandmother, who was appointed by as guardian of the person for the child in December 1977. The petition alleges that in May, 1977 the father took the child from the petitioner and gave it to his mother, and that petitioner was afraid to act because of previous assaults and threats. The petitioner-grandmother in the Surrogate’s Court proceeding (respondent herein) alleged the natural mother had abandoned the child, that she was a drug addict, and that her whereabouts were unknown. The father executed a waiver and consent to the appointment of his mother as guardian. No supporting affidavits as to the circumstances of the mother’s alleged abandonment, her addiction, or her disappearance were submitted; nor was an affidavit of diligent search provided. The letters of guardianship were issued on the ex parte application of the respondent herein, without notice to the mother, and apparently without a hearing.

On July 19, 1978 petitioner-mother filed a petition for custody of her child in the Family Court. The issue before this Court is whether it may assume jurisdiction in a custody proceeding, where guardianship of the person has been awarded in a prior ex parte proceeding in the Surrogate’s Court. The applicable law is to be found in Article 6 of the New York State Constitution, the Family Court and Surrogate’s Court Procedure Acts (hereafter “FCA” and “SPCA”) and pertinent cases.

Unlike the Supreme Court, neither court has general original jurisdiction in law and equity. The powers and jurisdiction of both the Surrogate and the Family Court Judge are limited. Article 6, Section 12 of the NYS Constitution states:

Published on: May 24, 2015

Action Brought Pursuant to Real Property Law Sec. 500 to Have Mortgage Cancelled

by Stephen Bilkis

This is a motion by plaintiff for summary judgment under Rule 113 of the Rules of Civil Practice. This action is brought pursuant to section 500 of the Real Property Law to have a mortgage cancelled of record on the ground that it is outlawed by the statute of limitations (Section 47-a, Civil Practice Act).

The answer consists of general denials and two affirmative defenses, namely, (1) that the mortgagors on September 17, 1949 acknowledged the mortgage and the indebtedness in writing, thereby extending the statute of limitations, and (2) upon information and belief, that sometime after September 17, 1949 and prior to the expiration of the statute of limitations, the mortgagors absented themselves from the jurisdiction of this court in that they or either of them were then and still are residing in Italy.

On February 8, 1929, Mr. A.C. and Mrs. L.C., his wife, executed and delivered to one Mr. P.K. a mortgage in the sum of $2,750, covering premises owned by them as tenants by the entirety, with interest at 6 per cent. payable quarterly until February 8, 1932, when the balance of the principal sum became due and payable. On the same day this mortgage was assigned to Ms. K.D. Said assignee died testate on August 13, 1940 a resident of Kings County; and his will was admitted to probate on January 22, 1941, and the defendant herein duly qualified as executor thereunder and is still acting in that capacity.

Published on: May 23, 2015

Court Decides Validity of a Hospital Lien

by Stephen Bilkis

In an action, Inter alia, to determine the validity and extent of a hospital lien filed by defendant New York City Health and Hospitals Corporation, plaintiff appeals from an order of the Supreme Court which (1) denied her motion to strike defendant Associated Hospital Services’ affirmative defense that the action against it was barred by the contractual period of limitations contained in the applicable group insurance contract, and (2) granted that defendant’s cross motion for summary judgment.

Plaintiff’s deceased (Mr. PB) was admitted to Kings County Hospital on May 6, 1968, and remained there as a patient until May 16, 1969, except for the brief period between April 11, 1969 and May 5, 1969 during which he was permitted to return home. The cost of his care at the hospital totaled $33,662.28, and a lien for that amount was duly filed by the Health and Hospitals Corporation on October 5, 1971 against the proceeds of a malpractice action which he had theretofore commenced against a Dr. LA. Subsequent to the filing of the lien, Mr. PB expired and his will designating the plaintiff as his executrix was admitted to probate on April 12, 1972.

It is undisputed that at the time of the hospitalization in question, Mr. PB was covered by Two group policies issued by defendant Associated Hospital Services of New York (AHS), each of which contained a contractual period of limitation for the commencement of actions arising thereunder. One, a policy provided: “No action at law or in equity shall be brought against AHS for any claim for Hospital Service unless brought within two years from the date of the Subscriber’s admission to the hospital.” The other, a policy issued to the Joint Board Fur, Leather and Machine Workers’ Unions for their employees, provided: “No action at law or in equity shall be brought to recover on this Contract unless brought within three years from the Subscriber’s discharge from the hospital.”

Published on: May 22, 2015

Court Discusses Will Provisions

by Stephen Bilkis

A New York Probate Lawyer said the holographic will of the testator, a physician, has been admitted to probate. The Court finds no difficulty in upholding the validity of the testator’s testamentary scheme as maintained by the two special guardians. Although inartistic in form the will makes testator’s intentions clear.

He first provided that if survived by his wife he gave all his ‘earthly possession to her without limitations whatsoever. In the event that I should outlive her then my estate shall be disposed of as follows.’ Then, stating that his estate was worth over $100,000, he directed the ‘administrators’ of his estate, later naming his two brothers-in-law as ‘executors and administrators,’ to pay all funeral and entombment expenses and all legitimate obligations outstanding. The rest of the will contains provisions for the use and sale of his residence, investment of estate funds, payment of annuities to his children, distribution of the whole estate to them or their children, and educational benefits to them, subject to various conditions. The testator died on January 24, 1954, survived by four children, 24, 22, 19 and 16 years old respectively at the time of his death. The three oldest children are married.

A New York Estate Lawyer said the Court construes the will as creating a single trust of his entire net estate, both real and personal, to be held until the youngest child, AB, becomes 22 years of age, to wit, July 29, 1960, or his earlier death. The alternative is not specified in the will but is supplied by law, thus avoiding invalidity of the trust by reason of a fixed termination date. The insertion of the date, July 29, 1960, was merely to indicate the date on which the youngest child would attain his twenty-second birthday and not to fix a date for the termination of the trust or that it was, in all events, to continue until that time. During the continuance of the trust or until the real property is sold any unmarried children may live in the residence mentioned in the will sharing the fixed charges and maintenance expenses of the property.

Published on: May 20, 2015

Court Hears Uncontested Administratrix’s Accounting Proceeding

by Stephen Bilkis

New York Probate Lawyer said in this uncontested administratrix’s accounting proceeding, a stipulation has been submitted to the court for its approval and incorporation into the provisions of an intermediate accounting decree.

The decedent died, testate, on the 17th day of March, 1980, survived by a spouse and an infant daughter, born of the marriage between himself and his former wife, who also survived him. Pursuant to the terms of his last will and testament, dated December 6, 1972, the decedent devised and bequeathed his real and personal property, together with the maximum amount allowable as a marital deduction under federal law, to his former spouse, and disposed of the rest, residue and remainder of his estate, in trust, for the benefit of his former spouse during her lifetime. Upon the death of his said spouse, the decedent directed that the principal of the trust estate continue to be held, in trust, for the benefit of his daughter, until she attained the age of 30, at which time, it was to be transferred and paid over to her, outright, if then living, or if not then living, to her then living issue, or if none, to a named charity. The decedent made no provision in the instrument for his second wife. As a consequence, his daughter became the sole beneficiary of his estate, by virtue of his divorce from his former spouse on October 19, 1979.

On the 8th day of July, 1980, the decedent’s former spouse, as guardian of her infant daughter’s property, filed a petition with the court requesting the probate of the decedent’s last will and testament, and the issuance to her of letters of administration. This application was unsuccessfully opposed by the decedent’s surviving spouse, whose objections to probate were dismissed in the context of a motion for summary judgment made by the guardian ad litem appointed to represent the interests of the infant in the proceeding. As a result thereof, letters of administration were issued by this court to the decedent’s former spouse on November 24, 1980, upon her posting of a bond in the sum of $20,000.00.