Hutchins' Estate, In re
| Decision Date | 02 March 1960 |
| Citation | 23 Misc.2d 565,199 N.Y.S.2d 528 |
| Parties | In re ESTATE of Augustus S. HUTCHINS. Surrogate's Court, New York County |
| Court | New York Surrogate Court |
Irving Smith, Jr., New York City (Powers, Kaplan & Berger, New York City, of counsel), for petitioners William J. Fagan, P. John Braichwood & Elmer W. Holmberg as executors of last will and testament of Rpyle R. Harrison, deceased trustee, and Waldo Hutchins, Jr., trustee.
Dunnington, Bartolow & Miller, New York City (Frank M. Foley and William M. Bradner of counsel), for respondent Elizabeth W. Hamilton, individually and as executrix of last will and testament of Julia H. Wolcott, deceased.
Charles A. Ellis, New York City, for respondents Albertha Wolcott and David Wolcott.
Lyman B. Lewis, Geneva, for respondent Margaret J. Hutchins.
Waldo Hutchins III, pro se.
Irving M. Luria, New York City, special guardian for respondents Frederick J. Hutchins and others, infants.
JOSEPH A. COX, Surrogate.
In this proceeding for the judicial settlement of the account of trustees respondent David Wolcott was cited because of his status as a legatee under the will of a deceased income beneficiary of one of the trusts. Wolcott filed an answer asking that the testator's will be construed as entitling him to a portion of a trust principal and further asking that a certain release executed by him in April 1948 be declared invalid. The court ruled that the issue as to the validity and effect of the release would be determined prior to the consideration of any other issue and, accordingly, the matter was set for hearing for that limited purpose.
The testator died in February 1948. His distributees were his widow, two children of his predeceased brother Waldo and two children of his predeceased sister Julia. Testator's sister Julia and her son Charles had died prior to the execution of the testator's will. The respondent David Wolcott is the adopted child of the testator's deceased nephew Charles Wolcott. The testator's will, executed in 1942, provided a trust of one-half of his residuary estate for the benefit of his widow and upon her death for the benefit of his children. The will provided that, if there were no child, one-half of the principal of this trust be held for the benefit of a named niece and the remaining one-half of the principal be held in trust for the benefit of another named niece with the remainder of each trust payable to the particular income beneficiary's heirs-at-law and next of kin. The remaining one-half of the residuary estate was bequeathed in four separate trusts for the benefit of the three nieces and the nephew who were distributees of the testator. The remainder of each of these trusts was bequeathed to the respective beneficiary's heirs-at-law and next of kin. The respondent David Wolcott was not mentioned in the will.
Prior to the institution of the probate proceeding the nominated executor provided Wolcott with a copy of the purported will and requested him to execute a waiver of citation and a consent to the probate. When such documents were not forthcoming the nominated executor filed a petition for probate, which contained no reference to Wolcott, and a decree admitting the will to probate was made on March 3, 1948. Wolcott, upon being informed as to the contents of the propounded instrument, had sought legal advice of two firms of attorneys and had been advised that, lacking a status either as a distributee of the decedent or as a beneficiary under an earlier testamentary instrument, he was not in a position to attack the will. In April 1948 discussions were had between Wolcott's then attorney and the attorney for the executor and it appears that at such times neither of the attorneys regarded Wolcott as having a status to attack the probate or as a beneficiary under the will. In the negotiations Wolcott's attorney presented the matter upon a moral basis which he described as a 'humanitarian' or 'family' approach while the attorney for the executor regarded a possible settlement as a means of avoiding not only immediate litigation but also later annoyance in accounting or construction proceedings. In short, the executor's attorney acted to obtain an acquittance that would foreclose litigation of the type created by the present objections.
The negotiations resulted in a payment to Wolcott of $75,000, in the form of corporate stock paying an 8% preferred dividend, and the execution by Wolcott of the instruments constituting the release now in question. The corporate stock was contributed by individuals interested under the will and the instruments of release ran to them as well as to the estate. It is of special significance that the form of release initially prepared by Wolcott's attorney and executed by Wolcott was rejected. A revised release, prepared by Wolcott's attorney, was later executed together with a form of agreement. The agreement...
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Wolcott v. Hutchins
...deliberations." (Ex. 6, Berger Affidavit). In 1948, David also had been informed of his status under the 1921 will. In re Hutchins, 199 N.Y.S.2d 528, 530 (Surr. Ct.1960). After learning that he had no interest in the estate, David, through his attorneys, negotiated with Hutchins for a settl......
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Wolcott v. Hutchins
...consulted with counsel as to his interest, if any, in the estate. According to the opinion of Surrogate Cox (In re Estate of Hutchins, 23 Misc.2d 565, 199 N.Y.S.2d 528 (1960)) hereinafter discussed, plaintiff consulted two firms of lawyers, who informed him that he had no interest in the es......
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