Estate of Alexander

• Decision Date: 06 June 1977
• Parties: ESTATE of Joseph ALEXANDER. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 598

395 N.Y.S.2d 598

90 Misc.2d 482

ESTATE of Joseph ALEXANDER.

Surrogate's Court, New York County.

June 6, 1977.

Nemeroff, Jelline, Danzig, Paley, Mandel & Block and Arthur S. Alfert, New York City, for petitioners-executors; Nathan R. Sobel, Brooklyn, of counsel.

Rosenman, Colin, Freund, Lewis & Cohen and George S. Arslanian, Jr., New York City, for respondent; Ambrose Doskow, Mal L. Barasch, Donna W. Daniels, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen. State of New York, New York City, for ultimate charitable beneficiaries; Joel Cooper, Asst. Atty. Gen., New York City, of counsel.

MILLARD L. MIDONICK, Surrogate.

The testator died on November 23, 1975 survived by his adopted son, Ronald Alexander, as his sole distributee. Following the probate of the testator's will, his adopted son served his notice of election pursuant to EPTL 5-3.3 contesting the charitable disposition in the will on the ground that the amount of such charitable gift exceeded the statutory limitation. The executors then instituted this proceeding to determine the validity of the election; and in the course of this proceeding, we are asked to determine the effect of an in terrorem clause.

The testator's will makes relatively small preresiduary dispositions, provides for bequests for his son which are quoted below, and the residuary estate is disposed of to a charitable family foundation. It is conceded that the residuary disposition to the charitable foundation exceeds "one-half of such testator's estate, wherever situated, after the payment of debts" (EPTL 5-3.3(a)). The gross estate is alleged to total $10 million and may have appreciated to almost twice that amount. The parties have agreed in a signed letter agreement in the courtroom on the return day of the citation herein and at a recent conference held with the law department, that a hearing is waived by all parties and the matter be submitted to the court on the papers in lieu of a hearing.

EPTL 5-3.3 provides 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."

The testator's will makes relatively small preresiduary dispositions, some outright, others in trust, among his attorney, a brother, a sister and her husband, two nephews, a niece, a secretary, a chauffeur, and provides the following bequest to his adopted son, the respondent herein:

"TENTH: Other than for my personal possessions, I give, devise and bequeath all my right, title and interest in and to the flat at GENERAL QUISAN QUAI 34, 8002 ZURICH, SWITZERLAND to my son, RONALD ALEXANDER."

"ELEVENTH: I give, devise and bequeath to my TRUSTEE, hereinafter named, IN TRUST NEVERTHELESS, a sum sufficient to pay to my son, RONALD ALEXANDER, TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS per annum for a period of fifteen (15) years. If my said son, RONALD ALEXANDER shall die before said trust terminates, the principal of said trust shall upon his death, revert to my residuary estate."

Following the bequests to the respondent quoted above, the will provides as follows:

"TWELFTH: During my lifetime I have made many gifts to my son, RONALD ALEXANDER; I have made loans to my son, ROANLD ALEXANDER and I have paid indebtnesses to others incurred by my son, RONALD ALEXANDER. It is my wish and I do hereby direct that if my son, RONALD ALEXANDER, shall directly or indirectly oppose the probate of this my LAST WILL AND TESTAMENT, then and in such event, the provisions herein named for his benefit shall thereupon be revoked and he shall be excluded from any participation in my Estate and shall cease to have any right, title and interest in and to any portion of my Estate or property and in lieu of any other provisions herein made for his benefit, I hereby give, devise and bequeath to my said son, RONALD ALEXANDER, the sum of ONE ($1.00) DOLLAR which shall be paid to him annually during his lifetime and he shall be accountable and chargeable to my Estate for any and all monies, loans, or payments made by him to or on his behalf."

The executors allege that the respondent lacks standing to contest the charitable bequest because he will not "receive a pecuniary benefit from a successful contest." (EPTL 5-3.3(a) (1)). The import of that provision was recently considered by the Court of Appeals in Matter of Eckart, 39 N.Y.2d 493, 497, 384 N.Y.S.2d 429, 430, 348 N.E.2d 905, 906, rev'g 48 A.D.2d 61, 368 N.Y.S.2d 28, which aff'd 72 Misc.2d 934, 339 N.Y.S.2d 860. In that case, the testatrix made bequests of $50 to each of her daughters and her son, and provided that "for reasons that to me are good and sufficient, I make no further testamentary provision for (them) . . ., and I intentionally make no provision for any other of my relatives." The Court of Appeals held that the children did not have standing to contest the charitable disposition in their mother's will under the holding in Matter of Cairo, 35 A.D.2d 76, 312 N.Y.S.2d 925, aff'd without opinion 29 N.Y.2d 527, 324 N.Y.S.2d 81, 272 N.E.2d 574, which the court held to be in point, stating in Eckart at 39 N.Y.2d 498, at 384 N.Y.S.2d 431, at 348 N.E.2d 907: "The FOURTH article of the will, the negative bequest provision, is essentially identical to the one in Cairo. The fact that the testatrix here left the contestants $50 is of no significance. If anything, the grant of a nominal bequest to a close relation is the more accepted or customary way of indicating an intent to disinherit. Nor do we find any merit to the petitioners' argument that the disinheritance clause should have no effect on their intestate rights since it only refers to 'testamentary' provisions. No meaningful distinction can be drawn between a clause which expressly leaves 'no bequest' to the contestant, as in Cairo, and one which makes 'no further testamentary provision' for his benefit as here. The two clauses are essentially the same and should have the same effect." The Court went on to discuss whether, since Cairo could not be distinguished, it should be followed and decided in the affirmative. The Court discussed the history of the statutory provision and the rules of stare decisis, and concluded 39 N.Y.2d at p. 502, 384 N.Y.S.2d at p. 434, 348 N.E.2d at p. 910 that: "It is the result that counts, and in our view it cannot be said that the result is clearly erroneous or disruptive of the legislative purpose. True, Cairo permits a testator to easily avoid the statute by expressly disinheriting those who might otherwise challenge the will. But the statute itself permits the same result if the testator simply creates a gift over to one not qualified to contest. In other words it...