Brush's Estates, In re

• Decision Date: 24 March 1965
• Citation: 259 N.Y.S.2d 390,46 Misc.2d 277
• Parties: In re ESTATES of Marion D. BRUSH and Jane W. Brush, Deceased. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 390

259 N.Y.S.2d 390

46 Misc.2d 277

In re ESTATES of Marion D. BRUSH and Jane W. Brush, Deceased.

Surrogate's Court, New York County.

March 24, 1965.

William T. Collins, II, and James M. O'Neill, New York City, for objectants, Henry D. Chaplin and Anne R. Chaplin.

Putney, Twombly, Hall & Skidmore, New York City, for the Executor of the Estate of Jane W. Brush and counsel to the Executor of the Estate of Marion D. Brush (Howard F. Ordman, Stephen J. Lucey & Lemuel Skidmore, New York City, of counsel).

Friend L. Tuttle, New York City, individually and as Executor of the Estate of Jane W. Brush.

JOSEPH A. COX, Surrogate.

Letters testamentary under the will of Marion D. Brush were granted by a decree dated August 26, 1958 to Jane W. Brush, the testatrix' sister-in-law, and Friend L. Tuttle, an attorney. Jane W. Brush died in September, 1960 and letters testamentary under her will were granted to Friend L. Tuttle on November 16, 1961.

In late 1961 a legatee under the will of Marion D. Brush petitioned to compel Tuttle to render an account as the surviving executor under that will. In January 1962 an order was made directing the executor to account. Thereafter the executor filed a notice of appeal to the Appellate Division. Sometime later he satisfied this legatee. On July 31, 1962 an order was made directing Friend L. Tuttle to render an account as the executor of the estate of Jane W. Brush. On February 19, 1964 an order of commitment was made by reason of the failure of Friend L. Tuttle to comply with an order directing him to account in the estate of Marion D. Brush. Compulsory accountings in each estate now are before the court and since the issues in the two estates are intertwined these issues have been treated together.

The will of Marion D. Brush bequeathed wearing apparel, jewelry, personal effects and household furnishings to Jane W. Brush, $1,000 to a maid, $5,000 to a cousin and $10,000 to Friend L. Tuttle and his wife. The residuary estate was bequeathed in trust for the benefit of Jane W. Brush with direction that upon her death $25,000 be paid to The House of the Holy Comforter and the balance of the trust remainder be paid to Friend L. Tuttle.

The will of Jane W. Brush, which was prepared by Friend L. Tuttle, provided a number of specific bequests, two general legacies of $500 each, a $1,000 legacy to Friend L. Tuttle and bequeathed $25,000 to The House of the Holy Comforter. The will expressed a wish and intention that the $25,000 legacy to this charity be accepted in lieu of the legacy bequeathed in the will of Marion D. Brush to the same charity. This legacy was conditioned upon the legatee completely releasing the Marion D. Brush estate and the most interesting condition is that, in the event such release should not be given, the sum of $25,000 be paid to the estate of Marion D. Brush. The cumulative effect of these conditions was to assure that Friend L. Tuttle would receive the full residuary principal of the Marion D. Brush estate undiminished by the bequest to the charity. If the charity were to receive its $25,000 legacy from the Marion D. Brush estate, such payment would be reimbursed from the Jane W. Brush estate and would come to Tuttle. If the charity accepted payment of its $25,000 legacy from the Jane W. Brush estate, the residuary estate of Marion D. Brush was left intact for Tuttle. The Jane W. Brush will was not merely an insurance policy protecting the residuary interest in the Marion D. Brush estate but also operated as a $25,000 bequest to Tuttle in addition to the interest originally bequeathed to him by Marion D. Brush.

The will of Jane W. Brush bequeathed her residuary estate to a cousin and his wife, who also were bequeathed pre-residuary legacies. These residuary legatees challenged the bequest in the Jane W. Brush will of $25,000 which is purportedly a bequest to charity but actually is a gift to Tuttle. This challenge is an attack upon the validity of this will provision as procured by fraud, undue influence or other improper conduct and, subject to proof, would have been a basis for attacking this particular provision of the will in the probate proceeding (Matter of Satterlee, Sir., 111 N.Y.S.2d 280; Matter of Satterlee's Will, 2 N.Y.2d 285, 159 N.Y.S.2d 689, 140 N.E.2d 543). The residuary legatees, who are relatives of the testatrix but not distributees of her estate, were not necessary parties to the probate proceeding, although it now appears that they might well have been proper parties, and, since these legatees were not cited in that proceeding, the decree admitting the will to probate is not res judicata upon any issue which the residuarly legatees might attempt to raise regarding the validity of a particular testamentary provision. Today the will stands as an instrument valid in all its parts and, until the instrument has been challenged successfully, it must be regarded as the testatrix' will in this accounting proceeding. The issue is not one of construction of testamentary language, as now suggested by the residuary legatees, but is one of essential validity and this issue is not properly raised upon an accounting. If the residuary legatees have a remedy it is in a proceeding to vacate the probate decree for the purpose of having a particular provision of the propounded instrument declared invalid (Matter of Satterlee, supra, 2 N.Y.2d 285, 159 N.Y.S.2d 689, 140 N.E.2d 543).

Other objections to the account in the Marion D. Brush estate allege that Jane W. Brush, or her estate, did not receive the income to which she was entitled as trust beneficiary and the account fails to provide for the payment of commissions to Jane W. Brush as executrix. The response of the accounting executor is that he is not accountable to the residuary legatees for any ammounts payable to Jane W. Brush from the estate of Marion D. Brush. The executor relies upon a provision of the Jane W. Brush will reading: 'I release and discharge the Executors of the said Marion D. Brush, their executors, administrators, successors and assigns, from any and all liability to account to me, or to my executors, administrators or any one claiming under or through me, with respect to any rights or benefits acquired by me under the provisions of her Will, which I may not have fully received at the time this Will becomes effective.'

The executor asserts that the quoted text constituted a gift to him of any property payable to Jane W. Brush from her sister-in-law's estate. The court does not interpret this text either as...