Eckart's Estate, In re
| Decision Date | 19 May 1975 |
| Citation | 368 N.Y.S.2d 28,48 A.D.2d 61 |
| Parties | In the Matter of the ESTATE of Julia ECKART, Deceased. Carl KRAMER, Appellant, Attorney General of the State of New York,Intervenor-Appellant, v. Charlotte Anna ECKART et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Koozman & Hartman, New York City (George H. Hartman and Emory Gardiner, New York City, of counsel), for appellant Kramer.
Louis J. Lefkowitz, Atty. Gen., New York City (Anthony S. Urso, Albany and Samuel A. Hirshowitz, New York City, of counsel), for ultimate charitable beneficiaries.
Daniel Danzig, Jamaica (William P. Laino, New York City, of counsel), for respondents.
Before MARTUSCELLO, Acting P.J., and LATHAM, COHALAN, CHRIST and SHAPIRO, JJ.
MEMORANDUM BY THE COURT.
Decree of the Surrogate's Court, Queens County, dated May 16, 1973, affirmed, without costs.
I concur with the affirmance of the decree under review, but my reasons for so holding differ from my associates.
This appeal concerns the right of certain persons to contest testamentary charitable distributions. * The issue is not new and, in fact, has previously been determined by this court in Matter of Cairo, 35 A.D.2d 76, 312 N.Y.S.2d 925, affd. 29 N.Y.2d 527, 324 N.Y.S.2d 81, 272 N.E.2d 574. The affirmance by the Court of Appeals was without opinion. That decision has been strongly criticized by commentators and legal periodicals alike, and courts have struggled to distinguish and avoid its holding (see Matter of Norcross, 67 Misc.2d 932, 325 N.Y.S.2d 477, affd. 39 A.D.2d 874, 334 N.Y.S.2d 600; Matter of Rothko, 71 Misc.2d 74, 335 N.Y.S.2d 666; Tarbox, Part Three-Property Law, Decedents' Estates, 25 Syracuse L.Rev. 253, 263). Upon re-examining Cairo, I believe, as the learned Surrogate below did, that it was decided erroneously and that it distorts the public policy of this State as declared in and intended by statute.
In Cairo, the testatrix was survived by a sister and a grandson. The will was neither lengthy nor intricate and it was clear, as the court held, that the testatrix had wished to disinherit her grandson. With the exception of a cooperative apartment and certain furnishings distributed to the testatrix's sister, the bulk of her estate was to pass to three named charities. The disinheritance clause reads as follows: 'I make no bequest to my grandson, Joseph L. Cairo, and I make no bequests to my daughters-in-law, Antoinette Cairo and Audrey Cairo, for good and sufficient reason.' Despite the clear wording of EPTL 5--3.3 this court determined that the grandson could not contest the charitable bequest and thereby share in the estate because 'her will made clear she wanted no part of her estate to go to' her grandson and that to allow him to partake 'would be contrary to the deceased's intent' (35 A.D.2d p. 78, 312 N.Y.S.2d p. 928). This intent in Cairo was subsequently referred to as a 'crystal clear' intent to disinherit (Matter of Norcross, Supra, 67 Misc.2d p. 937, 325 N.Y.S.2d p. 480; see Matter of Eckart, 72 Misc.2d 934, 339 N.Y.S.2d 860).
The facts in the instant appeal are not dissimilar to Cairo. Here the deceased passed away in August, 1970, at the age of 75 years. She was survived by a son, Frank, and a daughter, Charlotte. Her will executed on August 4, 1966, is short and simple and includes the three following clauses:
Although Frank Darmody is referred to in the will as the son of the testatrix's deceased husband, it is undisputed that he is her natural son. After the will was probated, the two children contested the charitable legacy to Watch Tower pursuant to EPTL 5--3.3. Surrogate LAURINO declared the contests valid and reduced the charitable bequest accordingly. In an opinion expressing dissatisfaction with Cairo, he determined that the testatrix's will did not evince a clear intent to disinherit the children.
I agree with the result achieved by the Surrogate, but I cannot agree that the wills reflect different intentions as to disinheritance. In the Cairo will, the testatrix intended to give nothing to her grandson and she so stated in her will. In the Eckart will, the testatrix gave $50 each to her children and stated they should receive no more. Yet in Cairo, the grandson, in fact, got nothing, while here the intention of the testatrix is thwarted by giving a substantial inheritance to the contestants in excess of their $50 legacies. In the cases considering this question Surrogates have struggled to give effect to the statute notwithstanding the Cairo decision and they have been hard put to find a difference so as to distinguish Cairo. The difficulty of distinguishing the effect to a nominal bequest of $50 from that of a will which leaves nothing can be seen by comparing the views of the dissenters in this case with the Surrogate below. The error in Cairo is the search for the testatrix's intention when the statute is designed to make that intention immaterial. In fact, it presumes that the testatrix intended to give more than one helf of her estate to charity and to cut off the issue and/or parent. The very object of EPTL 5--3.3 is to limit what a testator can do in his will by preventing the disinheritance of the family, at the expense of a charity. Unfortunately, Cairo fails to perceive this limitation and in so doing destroys the fulfillment of the legislative purpose.
This statutory provision is not new and has been embodied in our law for many years. The mortmain statutes of England were the forebears of EPTL 5--3.3 although they had a different objective. The early acts was specifically directed at excessive accumulations of wealth by religious organizations. On the other hand, the philosophy of our present statute is the protection of certain family members (Matter of Watson, 177 Misc. 308, 314, 30 N.Y.S.2d 577, 583; see, also, Trustees of Amherst College v. Ritch, 151 N.Y. 282, 45 N.E. 876; Chamberlain v. Chamberlain, 43 N.Y. 424).
The statutory history of charitable legacy restraint in this State can readily be divided into three stages. From approximately 1860 to 1930 the statute provided that no more than one-half of an estate could be devised or bequeathed to charitable organizations if a testator were survived by a spouse, parent or issue. Any amount distributed in excess of this would lapse. However, the distribution was not void per se, but voidable by affirmative action of someone, not necessarily the presently enumerated protected persons (see, e.g., Decker v. Vreeland, 220 N.Y. 326, 115 N.E. 989; Standing To Contest Wills Violating Charitable Bequest Statutes, 50 Colum.L.Rev. 94, 96--97). This anomaly which permitted a protest by someone other than those enumerated in the statute caused the 'Foley Commission' prior to 1930 to recommend an amendment to the provision (see Fourth Report, Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates , Report No. 1.9A, pp. 206, 220--223). Thus, a second stage evolved. The same protected classes were preserved, but the statute mandated that only a person in the enumerated class could contest the excessive charitable gift (L.1929, ch. 229, § 3, amdg. former Decedent Estate Law, § 17). But, again, it was not specifically provided that the contestant should be the recipient of the contested and excised portion, either under the terms of the will itself or by the laws of intestacy should the excised portion lapse (see, e.g., Matter of Washburn, 12 A.D.2d 856, 209 N.Y.S.2d 843).
Nevertheless, that provision was retained in our law for approximately 37 years until the enactment of the EPTL, when the Legislature empaneled the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, under the chairmanship of Surrogate JOHN D. BENNETT. The Bennett Commission made an exhaustive analysis of the estate law and over the course of several years made recommendations concerning, among other things, charitable gifts. Many of these suggested changes were favorably acted upon by the Legislature and are presently contained in the EPTL.
One of these changes was a restricted definition of the terms 'issue' and 'parent'. The commission proposed that only an individual who could benefit by a successful contest should be permitted to contest (Fourth Report of the commission (supra), pp. 213--214, 228; Revisers' Notes in McKinney's Cons.Laws of N.Y., Book 17B, EPTL, p. 785, which, in fact, indicate that the clause thus limiting the individuals who may contest was enacted to change the result of Matter of Washburn, Supra; Matter of Norcross, Supra; Arenson, Restrictions on Testamentary Gifts to Charities in New York, 8 N.Y.Law Forum 385, 401 (1962)).
Accordingly, EPTL 5--3.3 now reads as follows:
'Limitations on testamentary dispositions for charitable and other purposes
'(a) A person may make a testamentary...
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