Devine's Estate, In re

• Citation: 41 Misc.2d 211,244 N.Y.S.2d 934
• Parties: In re ESTATE of Christopher J. DEVINE. Surrogate's Court, New York County
• Decision Date: 29 October 1963
• Court: New York Surrogate Court

Page 934

244 N.Y.S.2d 934

41 Misc.2d 211

In re ESTATE of Christopher J. DEVINE.

Surrogate's Court, New York County.

Oct. 29, 1963.

Sullivan, Donovan, Hanrahan, McGovern & Lane, New York City (James N. Vaughan, New York City, of counsel), for proponents William J. Stoutenburgh, Vincent H. Herrmann, John Lane.

Bernard B. Smith, New York City (Homer I. Harris and Franklin M. Desser, New York City, of counsel), for Bonaventura E. Devine.

Tanner & Friedman, New York City (Arthur S. Friedman, New York City, of counsel), for Richard G. Devine.

Corbin, Bennett & Delehanty, New York City (Francis B. Delehanty, New York City, of counsel), for John Paul Devine, Robert Kirby Devine and Bonaventura E. Devine.

Fennelly, Douglas, Eagan, Nager & Voorhees, New York City (Leo C. Fennelly, New York City, of counsel), for Gerald T. Devine.

Hershcopf & Graham, New York City, for Christopher James Devine.

Louis J. Lefkowitz, Atty. Gen. (Julius Greenfield, Asst. Atty. Gen.), for Charitable Beneficiaries.

Sidney A. Florea, New York City, Special Guardian for Susan Patricia Devine.

JOSEPH A. COX, Surrogate.

An instrument dated January 23, 1962 has been propounded as the last will of this decedent who died a resident of New Jersey. The decedent's next of kin are his widow, five adult sons, three adult daughters and an infant daughter. There also are seventeen grandchildren, the issue of living children of the decedent.

The propounded instrument bequeaths to the widow jewelry and personal property, devises real property to her and creates for her benefit a trust in an amount which, added to the bequests and devises to her, will bring the total gifts to her or for her benefit to the sum of $7,500,000.

Article EIGHTH of the instrument creates a trust for the primary benefit of the testator's daughters. The amount bequeathed to trustees for this purpose is stated to be 'the sum of ONE MILLION SEVEN HUNDRED THOUSAND DOLLARS ($1,700,000) on account of each of my daughters who shall survive me and a like amount on account of the issue of each one of my daughters who may predecease me leaving issue me surviving.'

Article NINTH provides a similar trust for the primary benefit of the testator's sons but here the bequest in trust is 'the sum of ONE MILLION FOUR HUNDRED AND FIFTY THOUSAND DOLLARS ($1,450,000) on account of each of my sons who shall survive me and a like amount on account of the issue of each one of my sons who may predecease me leaving issue me surviving.'

Objections to probate have been filed by the widow and two of the testator's sons. The objections of the widow contain a 'FIRST, SEPARATE AND DISTINCT DEFENSE AND AFFIRMATIVE PLEA' which pleads that the testator intended by Article NINTH of the propounded paper to bequeath a total sum of $1,450,000 in a single trust with the net income earned by that total sum to be distributed among the sons in equal shares, that it was the testator's belief that Article NINTH accomplished this purpose and, if the language of Article NINTH should be determined to entitle each income beneficiary to the full income from a trust of $1,450,000, the words accomplishing this were inserted without the knowledge and consent of the testator. As a 'SECOND, SEPARATE AND DISTINCT DEFENSE AND AFFIRMATIVE PLEA' the widow further alleges that, if it be determined that separate trusts of $1,450,000 each are created by the propounded paper, the testator lacked understanding and knowledge of the contents of the instrument. As a 'THIRD, SEPARATE AND DISTINCT DEFENSE AND AFFIRMATIVE PLEA' the widow alleges that it was represented to the testator that Article NINTH created a single trust in the total sum of $1,450,000, that the testator relied upon this representation and, if Article NINTH provides differently, such representation however innocently made, was false, that the execution of Article NINTH as written was not the free and voluntary act of the testator and the inclusion of particular words in the instrument was a constructive fraud upon the testator. As a 'FOURTH, SEPARATE AND DISTINCT DEFENSE AND AFFIRMATIVE PLEA' the widow alleges that such representation, if innocently made, was false, the execution of Article NINTH was not the free and voluntary act of the testator and the execution of Article NINTH was procured by constructive fraud. As separate defenses and affirmative pleas FIFTH, SIXTH, SEVENTH and EIGHTH similar allegations are made with respect to Article EIGHTH of the propounded paper except that the basic contention is that, in that article, the testator intended a single trust of $1,700,000 and not separate trusts each in such amount. As a 'NINTH, SEPARATE AND DISTINCT DEFENSE AND AFFIRMATIVE PLEA' the widow asserts a right of election under section 18 of the Decedent Estate Law. The relief requested by this objectant is that (1) the court construe Article NINTH, (2) if the construction shall be adverse to the position of the objectant, the court determine that the words accomplishing this were inserted without the knowledge or understanding of the testator or by reason of constructive fraud upon the testator or by reason of his lack of knowledge and understanding and constituted a constructive fraud upon him and, upon such determination, the court rewrite the instrument to accomplish the objective of the objectant, (3) in the alternative, Article NINTH be denied probate, (4), (5) and (6) identical relief be granted with respect to Article EIGHTH, (7) the elective right of the widow be safeguarded and (8) the paper be admitted to probate 'only to the extent and in the form and manner determined by the Court.'

The objections of Gerald T. Devine, a son of the testator, assert that, if the instrument is not admitted to probate in its entirety, it is not a valid will and the whole thereof was executed by mistake without testamentary understanding. This objectant prays that the instrument be admitted to probate in its entirety and any question of construction be reserved for later determination. Richard G. Devine, another son of the testator, takes a like position in his objections.

One of the proponents, a nominated executor, has moved for the admission to probate of the propounded instrument with any question of construction reserved or that the instrument be admitted to probate except for Articles EIGHTH, NINTH, TENTH, ELEVENTH, THIRTEENTH, FOURTEENTH and FIFTEENTH or for an order dismissing the objections to probate or for an order granting summary judgment.

Extensive pre-trial examinations have been had and the respective positions of the parties are clear. A record has been created which permits a disposition of the objections to probate upon this motion (Matter of King, 16 A.D.2d 614, 226 N.Y.S.2d 239; Matter of Pascal, 309 N.Y. 108, 127 N.E.2d 835).

It is the contention of the widow that the maximum amount to be allocated under Article EIGHTH for the benefit of the testator's daughters is $1,700,000 and the maximum amount to be allocated under Article NINTH for the benefit of the testator's sons is $1,450,000. The proponent and objecting sons are seeking the admission to probate of the paper in its existing text but recognize that a construction of the language of the instrument should be had at a later time when this contention of the widow may be considered.

The widow does not make definitive allegations that the propounded instrument was not duly executed or that the testator lacked testamentary capacity or that he was under any form of restraint. The widow's objections are wholly conditional in that her charges of lack of understanding and constructive fraud are contingent upon a construction of the propounded instrument. In short, if the instrument is to be read in a manner most advantageous to her, then the testator was a man of understanding and not the victim of fraud but, on the other hand, if the paper does not provide the widow with those advantages, then the testator lacked understanding and was imposed upon in some manner.

There cannot be read into the objections of any party the contention that the formalities of execution, as required by section 21 of the Decedent Estate Law, were not met because, if this were possible, assertions that the instrument was duly executed if read in one manner...