Estate of Shubert

• Citation: 110 Misc.2d 635,442 N.Y.S.2d 703
• Parties: ESTATE OF Jacob J. SHUBERT. Surrogate's Court, New York County
• Decision Date: 19 June 1981
• Court: New York Surrogate Court

Page 703

442 N.Y.S.2d 703

110 Misc.2d 635

ESTATE OF Jacob J. SHUBERT.

Surrogate's Court, New York County.

June 19, 1981.

Appleton, Rice & Perrin, New York City (Charles E. Fedden, Lansing R. Palmer, New York City, of counsel), for petitioners Sarah Catherine Shubert and John Jason Shubert.

Parker, Chapin, Flattau & Klimpl, New York City (Alvin M. Stein, Amos Alter, Kenneth Davis, Daniel Kolko, Kirsten Mishkin, New York City, of counsel), for respondent the Shubert Foundation, Inc.

Davis Polk & Wardwell, New York City (David C. Oxman, New York City, of counsel), for respondent Morgan Guaranty Trust Company of New York.

Vaughan & Lyons, New York City (Edward F. Vaughan, New York City, of counsel), for respondents Kerttu Helena Shubert, Julia Barker Peyton and Betty Barker.

Francis X. McGowan, New York City, for respondents Lawrence S. Lawrence, Jr. and Lynne C. Underwood.

Albert J. Mayell, New York City, for respondent National Surety Corporation.

Robert Abrams, Atty. Gen., New York City (John L. Moncrief, Jr., Asst. Atty. Gen., New York City, of counsel), for Ultimate Charitable Beneficiaries.

Shea, Gould, Climenko & Casey, New York City (Milton S. Gould, Julian S. Bush, New York City, of counsel), for Shubert Foundation.

MILLARD L. MIDONICK, Surrogate.

The central problem presented is whether issue (two grandchildren) of Jacob J. Shubert can reopen a decree of this court based upon a formal stipulation of settlement made in their behalf in open court and approved by a former judge of this court in 1963.

The grandchildren of the decedent have filed their election to contest an alleged excessive charitable bequest pursuant to former Decedent Estate Law, § 17 (now EPTL 5-3.3). They now move in that regard to vacate the January 15, 1964 probate and the later accounting decrees in this, their grandfather's estate. The respondents move to dismiss the petition upon the grounds, among others, of res judicata founded upon documentary evidence. (CPLR 3211, subd. pars. 1, 5).

Petitioners thereafter cross-moved to be relieved from any and all of the provisions of an agreement of compromise dated August 7, 1963 and the decree approving it granted by this court November 1, 1963, in the Estate of John Jason Shubert, Sr. John J. Shubert, Sr. was the only child of Jacob J. Shubert who survived his only child, thereby entitling these petitioning grandchildren, as the only "issue" of their grandfather at the time of his death, to oppose an excessive charitable bequest of their grandfather, unless blocked by the 1963 decree. The petitioners are Sarah Catherine Shubert, who was born on March 26, 1960, and John Jason Shubert, Jr., who was born on June 12, 1961. They are the children of Nancy Mae Eyerman and of John Jason Shubert, Sr. After submission of the cross-motion, petitioners further moved to submit additional affidavits and for disclosure. The court has considered all of the papers submitted, including the additional affidavits and response thereto. The following decision will serve to analyse, illuminate, evaluate, narrow and ultimately to dispose of all of the motions and issues now before the court.

Kerttu Helena Shubert and John J. Shubert, Sr. (he having been the only child of the testator here Jacob J. Shubert) were married in 1937. On or about January 9, 1961 John Sr. obtained a unilateral, wholly invalid Mexican divorce from Kerttu and on January 13, 1961 he married, ceremonially but bigamously, Nancy Mae Eyerman in Juarez, Mexico. John J. Shubert, Sr. died on November 17, 1962, leaving a will dated December 8, 1960, which was offered for probate in this court by Kerttu Helena Shubert and others. That instrument made no provision for Nancy Mae Eyerman or her children, Sarah and John J. Jr., those children now being the petitioners here. In that contested probate proceeding the fiduciaries moved to strike appearances of Nancy Eyerman and her then infant children (now petitioners here) upon the ground of lack of status and standing. Guardians were appointed, one to represent the infant children in that proceeding and a guardian was appointed to represent Jacob J. Shubert, the decedent in this estate and the then surviving father of John Sr., that father then under a disability due to aging.

Objections to probate of John Sr.'s will were filed by Catherine Shubert, the mother of John J. Shubert, Sr. A trial of the following issues was directed by the court:

"(1) The validity of the decedent's 1937 marriage to Kerttu Helena Shubert, one of the proponents;

(2) The validity of the Mexican decree purporting to dissolve that marriage;

(3) The rights of any of the parties to this proceeding resulting from the decedent's marriage in Mexico to Nancy Eyerman; * * *." (Matter of Shubert, NYLJ, April 5, 1963, p. 15, col. 3).

These issues were settled and compromised during the course of trial in the estate of the son of the decedent herein, and it is that agreement which is now under attack by the former infants. Pursuant to the terms and conditions thereof the parties agreed in 1963, inter alia, "that (i) John married Kerttu in 1937 and remained married to her until his death; (ii) Kerttu was John's widow; (iii) the divorce judgment in Mexico purportedly dissolving that marriage was void; (iv) the marriage between John and Nancy in Mexico was void; (v) Sarah and John Jr., subject to the limitations stated in the Compromise Agreement, were declared to be legitimate children of John Sr. and Nancy; (vi) Sarah and John J. Jr. were each to receive $12,500 from John's estate (to be paid to their general guardian) in full satisfaction and settlement." One of the limitations was set forth in paragraph 6 of the said Compromise Agreement reads as follows:

"6. It is expressly agreed that said infants have no property rights, present or future, vested or contingent, in respect of Jacob J. Shubert, father of the decedent, or any post obit rights of any kind, nature or description in respect of the estate of Jacob J. Shubert upon and after his death. Without limiting the generality of the foregoing it is specifically agreed that upon and following the death of Jacob J. Shubert the said infants and each of them shall have no right, title or interest in respect of the property or estate of Jacob J. Shubert by reason of any provisions of the Decedent Estate Law, Surrogate's Court Act or any law of this State whatsoever, including but without limitation thereto, particularly sections 17 and 83 of the Decedent Estate Law and all relevant provisions of the Surrogate's Court Act dealing with persons interested in the estates of decedents, and said infants and their representatives have and shall have no right to receive any process whatsoever in any proceeding at law or in equity arising in respect of Jacob J. Shubert or the property of Jacob J. Shubert or any estate, testate or intestate, of Jacob J. Shubert on the occasion of his death."

The grandfather of these petitioners, Jacob J. Shubert, who was represented at those 1963 proceedings by his own guardian, died shortly thereafter (i. e., after the above settlement in the estate of his son) on December 26, 1963. His guardian approved and signed the above settlement, as did the guardians of his then infant grandchildren now petitioning. His will was admitted to probate in this court on January 15, 1964. Under Article Twelfth he bequeathed his entire residuary estate to his son John J. Sr. In the event of John's predeceasing him, which in fact had occurred the residuary estate was bequeathed and devised to charity, the Shubert Foundation, now the moving respondent. Petitioners having both attained their legal age as adults seek to set aside the charitable bequest as excessive and it is asserted by them that they were never cited in the probate proceeding or in the accounting proceeding of their grandfather's estate, despite their being his only "issue" as grandchildren pursuant to the then recent settlement. It is undisputed that the petitioners were never cited or appeared in their grandfather's estate. Respondents rely upon the settlement agreement of 1963 in the prior estate of these petitioners' father, which by its terms expressly declared that these infant grandchildren and their representative shall have no right to receive any process whatsoever in any proceeding in law or in equity arising in respect of Jacob J. Shubert or the property of Jacob J. Shubert or any estate, testate or intestate of Jacob J. Shubert on the occasion of his death. It is obvious, therefore, that the question of the necessity of in personam jurisdiction of the infants in their grandfather's estate, in which they were not cited nor did they appear, turns upon the validity of the agreement, stipulating settlement in John Sr.'s estate, which stipulation is now under attack. It is petitioners' further contention that the Surrogate in 1963 lacked subject matter jurisdiction insofar as their right in and to the decedent estate property of their grandfather, Jacob J. Shubert, was severed in the agreement, while grandfather was still alive, by those terms. It is conceded that in the John J. Shubert, Sr. estate this court had full subject matter and in personam jurisdiction and that the court could adjust by compromise any controversy relating to his estate and property. Petitioners argue, however, that the statutory right of compromise did not extend to the matters affecting these petitioners' grandfather's property or his future estate while he was still alive, despite his being a party (protected by a guardian), during the probate controversy relating to his son's estate. Thus, an essential point before the court for which a determination is requested is whether or not the Surrogate in 1963 had the power to approve an agreement which contained provisions extinguishing the presumptive rights of infant parties to property and future interests in an estate of a living person who was the father of...