Hamilton's Estate, In re
| Decision Date | 19 December 1974 |
| Citation | 364 N.Y.S.2d 950,81 Misc.2d 40 |
| Parties | In the Matter of the ESTATE of George S. HAMILTON, Deceased. Surrogate's Court, Cattaraugus County |
| Court | New York Surrogate Court |
Kysor & Della Posta, Gowanda, for petitioner-executor; Frank Della Posta, Gowanda, of counsel.
Earl H. Hornburg, Olean, Court appointed guardian ad litem for Jennifer, Lisanne and Andrea Mather.
Jeremiah J. Moriarty, Franklinville, Court appointed guardian ad litem for Susan Peebles.
Glenita Oslund in person and by Frank A. Gualtieri, Atty., Syracuse.
EDWARD M. HOREY, Surrogate.
The proceeding is one for a construction of the last will and testament of the decedent, George S. Hamilton.
The issue raised is one of abatement of legacies.
The facts prompting the construction and giving rise to the issues are as follows: George S. Hamilton, the decedent, was married twice in his lifetime. No children were born of either marriage. Decedent was survived by only his second wife, Ethel Clark (Mather) Hamilton. This surviving wife had been previously married to a man named Mather. Born of her first marriage was a son, Robert Mather. Robert Mather married and he and his wife, Hildelore Mather, were the parents of three minor children, to wit: Jennifer, Lisanne and Andrea Mather. Robert and Hildelore Mather were divorced. The three Mather children remained in the custody of their mother, Hildelore Mather. Followng the divorce, Hildelore Mather and her three children resided with the decedent and his second and surviving wife. Their precise relationship to the decedent was respectively step-daughter-in-law and step-grandchildren. As such they were neither heirs, nor distributees of the decedent. Nevertheless, they constituted the decedent's 'family'. They and the surviving wife were major beneficiaries under decedent's will.
Under the will, duly admitted to probate, the dispositive provisions made by the decedent are contained in paragraph THIRD through NINTH inclusive.
Testamentary provisions for the surviving wife are contained in paragraphs THIRD, SIXTH and SEVENTH. Particularly relevant to the determination required, they are considered first.
Under paragraph THIRD the surviving wife was devised a life interest in certain real property located in Connecticut. The remainder interest in this real property was devised to decedent's step-daughter-in-law, Hildelore Mather.
Under paragraph SIXTH, the surviving wife was bequeathed the sum of Ten Thousand Dollars ($10,000.00).
Under paragraph SEVENTH, the surviving wife was named the life beneficiary of a trust, the principal of which was to be in an amount equal to one-half of the testator's adjusted gross estate as finally determined in Federal estate tax proceedings, reduced by the value of the decedent's interest in property, if any, which passes, or shall have passed to his surviving wife under any other provisions or paragraphs of the decedent's will. The remaindermen under the trust were decedent's step-grandchildren, Jennifer, Lisanne and Andrea Mather.
The remaining dispositive testamentary provisions are now considered.
Under paragraph FOURTH, a 1969 Lincoln automobile was bequeathed to decedent's friend, Richard Hardy.
Under paragraph FIFTH, all tangible personal property, excluding cash, securities and bank accounts was bequeathed to decedent's step-daughter-in-law, Hildelore Mather.
Under paragraph EIGHTH, cash bequests in various stated amounts were bequeathed to thirteen (13) named relatives or friends of the decedent. Included as a legatee of $10,000 was a grandniece and minor, one Susan Peebles. The thirteen bequests are set forth in individual subparagraphs (a) through (m) inclusive.
Paragraph NINTH constituted the residuary clause of decedent's will. Under it all the rest, residue and remainder of the decedent's estate was devised and bequeathed to decedent's step-grandchildren, Jennifer, Lisanne and Andrea Mather.
The will itself discloses no ambiguities. The need for construction arises by dint of the fact that after payment of funeral, administration expenses, debts and estimated taxes, it appears clear that there will not be sufficient assets to pay all legacies and devises in full. Since the Federal and New York estate taxes have not yet been determined, the precise amount of the deficiency has not yet been fixed. The posture of the proceeding at this time then is that determination must be made of what legacies or devises under the will abate and in what order. The Extent to which the abatement will proceed along the determined order for abatement must abide subsequent determination of the precise amount of the deficiency.
EPTL 13--1.3(c) (as well as EPTL 12--1.2) stipulates that absent a preference expressed by the testator, the following order of abatement must be observed:
(1) distributive shares of intestate property;
(2) residuary dispositions;
(3) general dispositions (with 'demonstrative dispositions' being treated as 'general' to the extent that the property or fund charged with a demonstrative disposition has adeemed);
(4) specific dispositions, and any income derived therefrom (with 'demonstrative' dispositions being treated as 'specific' to the extent the property or fund charged with a demonstrative disposition has not adeemed), and
(5) any disposition to a surviving spouse which qualifies for the estate tax marital deduction. (See EPTL 13--1.3, Subparagraph (c)).
However, as previously noted, any or all of these priorities may be superseded by an explicit or tacit direction in the testator's will to observe a different order of abatement. (See EPTL 13--1.3, Subparagraph (e)).
Examination of the will discloses no explicit direction or order for abatement. The guardians ad litem, appointed by the court to represent the interest of infants, both concede this to be the fact.
Consideration of a tacit or implied direction in the will is next in order. Both guardians ad litem urge that an implied direction in favor of their respective wards is contained in the will. Unable to find arguments in support of the bequest to their respective wards alone, each guardian ad litem has skillfully advanced arguments for preferential treatment for a class or a grouping of beneficiaries that includes his respective ward.
The guardian ad litem of the infant, Susan Peebles, a grandniece of the decedent and a legatee under paragraph EIGHTH, argues that a tacit or implied direction for his client is to be found in the long history of marital discord between the decedent and his surviving wife. It is also argued that the bequests to the surviving spouse were delimited to meet only the limited statutory requirements necessary to avoid the exercise of a right of election by the surviving spouse. On these predicates, the guardian ad litem of Susan Peebles urges that preferential treatment should be accorded all of the thirteen legatees under paragraph EIGHTH of the decedent's will, inclusive of his ward who was a legatee of the sum of $10,000. This guardian ad litem urges that the legacies in paragraph EIGHTH should be maintained intact and that any required deficiencies after employing the residuary estate should be made up by reducing the bequests made to the surviving spouse. The court finds no merit in this argument. While the evidence discloses that marital disharmony did exist over a number of years between the decedent and his surviving wife, it also appears that a reconciliation had been effected before the will in issue had been executed. Further, it is not precisely correct to state that the decedent left his wife only the bare minimum to avoid any right of election. If the decedent had wished to do so he could have subjected the wife's testamentary distributions to estate tax. By directing payment of all taxes from the residuary estate, however, the widow's interest under the will will not be reduced by necessary contribution to estate taxes. To this extent then, her testamentary distributions exceed the minimum statutory requirements giving rise to a right of election.
The guardian ad litem for the three Mather children also urges the existence of an implied preference in favor of his wards. Two arguments are advanced. First, this guardian notes that the legacy in which his wards share as remaindermen, viz: paragraph SEVENTH, creating a trust for the benefit of the surviving spouse with the Mather children as remaindermen, precedes in order in the will the legacies to relatives and friends contained in paragraph EIGHTH. Priorty in numerical order, he urges, indicates an intention of preferential treatment to the life beneficiary and the remaindermen. The guardian urges that their legacies, as remaindermen should be maintained unabated by reducing the subsequent legacies to the thirteen relatives and friends contained in paragraph EIGHTH. The order in which legacies are provided in a will is at best only a factor for consideration. Matter of Lloyd, 166 App.Div. 1, 151 N.Y.S. 459. In fact, in Matter of Rae, 140 Misc. 530, 250 N.Y.S. 617, it was held that the sequence of order of legacies in a will has no bearing on the question of preference in abatement. This court does not find the order of legacies in the will here an implication for preferential treatment.
Advanced in favor of his infant remaindermen as a second argument is the proposition that the trust in which they share an interest as remaindermen was a legacy given to a wife. This legacy in the form of a life interest in a trust, the guardian urges, is in lieu of the widow's right of election. As such, the guardian postulates it should be accorded preferential treatment for abatement purposes. Noting the associated interest of the Mather children in the trust, the guardian by boot-strap extension urges that their remainder interest under that trust should also be given preferential treatment.
The court finds merit in this second argument insofar as it indicates an implied preferential treatment for the...
To continue reading
Request your trial
- People v. LaPlante
-
Duckman's Will, Matter of
... ... provision in the decedent's Will dated May 21, 1970 which directs the Executor not to collect a promissory note which is the only asset in the estate. The deceased sold his interest in the Canandaigua Fishing Tackle Co., Inc. for Fifty-eight Thousand Dollars, ($58,000.00) as evidenced by a note ... ...