Eckart's Estate, In re

• Decision Date: 17 January 1973
• Parties: In re ESTATE of Julia ECKART, Deceased. In the Matter of the Election of Charlotte Anna ECKART and Frank Darmody, as Surviving Issues, to Elect to Contest a Charitable Disposition made of the Estate of Julia Eckart, Deceased. Surrogate's Court, Queens County
• Court: New York Surrogate Court

Page 860

339 N.Y.S.2d 860

72 Misc.2d 934

In re ESTATE of Julia ECKART, Deceased In the Matter of the Election of Charlotte Anna ECKART and Frank Darmody, as Surviving Issues, to Elect to Contest a Charitable Disposition made of the Estate of Julia Eckart, Deceased.

Surrogate's Court, Queens County.

Jan. 17, 1973.

Danial Danzig, Jamaica, for petitioners.

Koozman & Hartman, New York City, for Carl Kramer, Executor.

Anthony S. Urso, Asst. Atty. Gen.

LOUIS D. LAURINO, Surrogate.

This case concerns the rights of children to elect against an excessive charitable disposition (EPTL 5--3.3), in view of a claimed disinheritance provision in the Will. As such, it stands in what is becoming a discernible line of reported cases struggling with the effects of Matter of Cairo, 35 A.D.2d 76, 312 N.Y.S.2d 925, unanimously affd. without opn., 29 N.Y.2d 527, 324 N.Y.S.2d 81.

The Will reads in pertinent part as follows:

'THIRD: Should they survive me, I give, devise and bequeath to my daughter, CHARLOTTE ANNA ECKART, and to FRANK DARMODY, the son of my divorced husband, PATRICK DARMODY, the sum of Fifty Dollars each.

FOURTH: For reasons that to me are good and sufficient, I make no further testamentary provision for my said daughter and Frank Darmody, and I intentionally make no provision for any other of my relatives.

FIFTH: All of the rest and residue of my property, real and personal, wheresoever situated, owned by me at my death, I give, devise and bequeath to WATCH TOWER BIBLE AND TRACT SOCIETY OF PENNSYLVANIA, a nonprofit corporation with main office and principal place of business at 124 Columbia Heights, Brooklyn, New York.'

EPTL 5--3.3 reads in pertinent part as follows:

'(a) A person may make a testamentary disposition of his entire estate to any person for a benevolent, charitable, educational, literary, scientific, religious or missionary purpose, provided that if any such disposition is contested by the testator's surviving issue or parents, it shall be valid only to the extent of one-half of such testator's estate, wherever situated, after the payment of debts, subject to the following:

(1) An issue or parent may not contest a disposition as invalid unless he will receive a pecuniary benefit from a successful contest as a beneficiary under the will or as a distributee.'

Two essential facts are not in dispute: (1) that Frank Darmody, one of the petitioners, described in the will as the 'son of my divorced husband' is also the natural son of the testatrix; and (2) that the testatrix disposed of more than one-half of her estate to charity.

Before considering the effect of Cairo on this will, let us first dispose of two issues, one based on facts which appear for the first time in the petitioners' brief, and the other never raised by the parties.

Petitioners claim as a fact that the testatrix's gross annual income was at a level far below that fixed by the Federal Government as a minimum subsistence level. The argument here is that under these circumstances, a fifty dollar gift is not an act of disinheritance but rather a significant legacy. This argument, resourceful as it is, will have to be dismissed since no hearing was requested for the introduction of facts, and the proceeding was submitted by agreement for a determination as a matter of law.

The other issue, one not raised by the parties, concerns the existence in Paragraph 'SIXTH' of the will, of a condition against contest or a so-called 'in terrorem' clause. Such a clause cannot operate as a bar to a contest based upon excessive charitable gifts. (Unger v. Loewy, 202 App.Div. 213, 195 N.Y.S. 582, reversed on other grounds 236 N.Y. 73, 140 N.E. 201.)

Now let us turn to a consideration of Cairo and two other recent cases, Matter of Norcross, 67 Misc.2d 932, 325 N.Y.S.2d 477, affd. no opinion, Griffith v. Boyd, 39 A.D.2d 874, 333 N.Y.S.2d 703 and Matter of Rothko, 71 Misc.2d 74, 335 N.Y.S.2d 666.

In Cairo, the grandson who brought the contest was specifically disinherited in the following words: 'I make no bequest to my grandson, Joseph L. Cairo, * * * for good and sufficient reason.' The Appellate Division reasoned, and the Court of Appeals agreed, that the dominant scheme of the will was a clear intent to benefit charity and to disinherit the grandson, and that this mandated a determination upholding the excessive charitable gift. EPTL 5--3.3 quite evidently is intended as a restriction upon a testator's excessive charitable desires and yet Cairo tells us that in determining its effect we must look to the testator's intent. Perhaps it should here be noted that, while a case may tell us that our guide must be testamentary intent, no case can tell us what this particular testatrix intended. That can only come from a reading of this will, and where necessary, the surrounding circumstances. Surrogate Wingate stated this rather clearly in Matter of Montgomery, 166 Misc. 347, at page 349, 2 N.Y.S.2d 406, at page 408, reversed on other grounds, 258 App.Div. 64, 15 N.Y.S.2d 729, affd. 282 N.Y. 713, 26 N.E.2d 824, he said:

'The court notes with pleasure that in the preparation of two of the three memoranda filed counsel have heeded the oft-repeated admonition of this and other courts respecting the utter futility and useless waste of paper involved in the practice of citing precedents interpreting the language employed by other testators in different wills, and urging their results as persuasive in the present instance. (Matter of Watson's Will, 262 N.Y. 284, 297, 186 N.E. 787; Matter of Rossiter's Will, 134 Misc. 837,...