New York Probate and Estate Administration Lawyer Blog

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

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 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 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.

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.