Estate of Alexander

• Citation: 63 A.D.2d 612,405 N.Y.S.2d 613
• Parties: ESTATE of Joseph ALEXANDER. Application of Robert WEINTRAUB et al., of the Estate of Joseph Alexander, Petitioners-Respondents-Appellants, for a determination, etc., purported to be made by Ronald ALEXANDER, Respondent-Appellant-Respondent, Ultimate Charitable Beneficiaries, Respondent.
• Decision Date: 18 May 1978
• Court: New York Supreme Court Appellate Division

Page 613

405 N.Y.S.2d 613

63 A.D.2d 612

ESTATE of Joseph ALEXANDER.

Application of Robert WEINTRAUB et al., of the Estate of

Joseph Alexander, Petitioners-Respondents-Appellants, for a

determination, etc., purported to be made by Ronald

ALEXANDER, Respondent-Appellant-Respondent, Ultimate

Charitable Beneficiaries, Respondent.

Supreme Court of New York, Appellate Division,

First Department.

May 18, 1978

N. R. Sobel, Brooklyn, for petitioners-respondents-appellants. A. Diskow, for respondent-appellant-respondent. J. Cooper, New York City, for respondent.

Decree, Surrogate's Court, New York County (Midonick, S.), entered July 1, 1977, affirmed on authority of Matter of Eckart, 39 N.Y.2d 493, 384 N.Y.S.2d 429, 348 N.E.2d 905 and 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, and for the reasons stated by Surrogate Midonick (Matter of Alexander, 90 Misc.2d 482, 395 N.Y.S.2d 598), with $60 costs and disbursements to all parties appearing separately and filing separate briefs payable out of the estate. All concur except Murphy, P. J., who dissents in part in the following memorandum: MURPHY, P. J. (dissenting in part): I agree with the Surrogate that Ronald Alexander, (the "distributee") has no standing to elect within the provisions of EPTL § 5-3.3 (90 Misc.2d 482, 485, 486, 395 N.Y.S.2d 598). However, I disagree with his conclusion that the distributee's election did not violate the in terrorem clause contained in article Twelfth of the will (90 Misc.2d 482, 486, 395 N.Y.S.2d 598). Article Twelfth of the will of Joseph Alexander (the "testator") reads as follows (90 Misc.2d 482, 483, 484, 395 N.Y.S.2d 598): "Twelfth: During my lifetime I have made many gifts to my son, RONALD ALEXANDER; I have made loans to my son, RONALD 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." (emphasis supplied). To resolve the question of whether there has been a forfeiture as a result of the distributee's election, this Court must reconcile two competing principles of law in this area. First of all, a will is ordinarily interpreted to reflect the testator's actual intent as ascertained from a reading of the whole will. (Matter of Cairo, 35 A.D.2d 76, 77, 312 N.Y.S.2d 925, aff'd, 29 N.Y.2d 527, 324 N.Y.S.2d 81, 272 N.E.2d 574). Secondly, provisions in a will tending to destroy an estate are not favored in law, and are strictly construed against forfeiture. (Matter of Gaffers, 254 App.Div. 448, 452, 5 N.Y.S.2d 671). Weighing these principles, the Surrogate chose to give the word "probate" its most literal denotation. In light of the Surrogate's own analysis of the provisions in the will, I find his interpretation of the word "probate" to be unduly narrow and totally unreflective of the testator's wishes. In particular, it should be emphasized that the Surrogate himself observed (90 Misc.2d 482, 485, 395 N.Y.S.2d 598): "The case at bar seems very similar to the Eckart situation in respect of the testator's intention to limit his son's interest in his estate to the bequests set forth in articles TENTH and ELEVENTH of the will. There are no expressions of affection for the son in the testator's will; indeed, he does not refer to his son as 'beloved' as he does his other legatees, including his chauffeur. Moreover, in article TWELFTH, he clearly explains his reasons for limiting his son's interest as did the testatrix in Eckart, where the will stated that 'for reasons that to me are good and sufficient.' Here, the testator explains that during his lifetime he made many gifts and loans to his son and paid indebtednesses incurred by his son. Thus, the will in this case contains a clear expression of purpose to limit inheritance, unlike the will in Matter of Rothko (71 Misc.2d 74, (335 N.Y.S.2d 666), aff'd 43 A.D.2d 819, (351 N.Y.S.2d 940)). In that case, this court found (p. 76 (335 N.Y.S.2d 666)) that the Rothko will 'lacks any expression of purpose to disinherit, but, quite logically, provided in the first instance for the mother of the children, who were infants at the time of the will's execution, and provided substitutionary gifts to the children in the event their mother predeceased the testator or died...