Keyworth's Estate, In re

• Decision Date: 03 September 1958
• Citation: 13 Misc.2d 502,180 N.Y.S.2d 37
• Parties: In the Matter of the ESTATE of Clara R. KEYWORTH, deceased. Surrogate's Court, Washington County
• Court: New York Surrogate Court

Page 37

180 N.Y.S.2d 37

13 Misc.2d 502

In the Matter of the ESTATE of Clara R. KEYWORTH, deceased.

Surrogate's Court, Washington County.

Sept. 3, 1958.

L. R. Lewis, Hudson Falls, for petitioner.

Erskine C. Rogers, Jr., Hudson Falls (John A. Leary, Hudson Falls, of counsel), for respondents Evelyn Havens and Amy Nichols.

VanNess & Russell, Greenwich (Charles B. Russell, Greenwich, of counsel), for respondents Alfred F. Merendino and Florence Merendino.

ROBERT W. BASCOM, Surrogate.

By three deeds, two dated in 1941 and the third February 9, 1952, William H. Keyworth and Clara R. Keyworth, his wife, acquired title as tenants by the entirety to a rural residence in Argyle. The deeds are respectively recorded at Washington County Clerk's Office in Liber 225 of Deeds at pages 357 and 358, and Liber 306 of Deeds at page 322. The Keyworths occupied the property as their home from about the date of the first deeds until the making of the contract hereafter referred to. This husband and wife had intermarried about 1922, in middle life, each having children by previous marriages. There is nothing to indicate who furnished the consideration for these purchases.

On February 14, 1952 the Keyworths as husband and wife contracted to convey said lands to respondents Alfred F. Merendino and Florence Merendino, his wife, for $5,750, of which $250 was paid on execution of the agreement, with the balance payable $50 per month including interest at four percentum per annum, computed semiannually, commencing April 1, 1952, on which date purchasers were to have possession, with privilege to accelerate payments. When the unpaid balance had been reduced to $3,000 sellers were to furnish a deed and buyers were 'to execute and deliver to first parties' their bond for that amount, with interest, secured by a mortgage of said premises.

On May 18, 1952 William H. Keyworth died, leaving a will dated March 12 of that year, on which, after probate, letters testamentary were issued to respondent Evelyn Havens. Four days thereafter, on May 22, 1952, Clara R. Keyworth died, intestate, and letters of administration were granted to Ruth Davis, petitioner herein. Since their deaths petitioner has collected the monthly payments under the Merendino contract, which has now been reduced to $2,831.23 of principal, on the assumption that the same were the sole property of the Clara R. Keyworth Estate and, in her estate tax return, filed November 17, 1952, she included as an asset of that decedent the Merendino contract at its full value on the date of Mrs. Keyworth's death.

Petitioner here seeks an order directing her as administratrix to convey the realty described in the contract, to the vendees named therein, and a determination that 'as such she can and shall convey all the title which was of said William H. and Clara R. Keyworth, and that the proceeds of such contract and conveyance belong to her, as such administratrix for the purpose of distribution to the distributees of Clara R. Keyworth'. Respondents Merendino raise the question of jurisdiction of the court to grant the relief sought, but otherwise are interested only in obtaining a proper title, as they stand ready to complete performance of their contract. The executrix of and the remainderman under the William H. Keyworth will contend that on the execution of the contract of sale an equitable conversion took place which entitles his estate, as a tenant in common, to one half the proceeds already collected and a like share of those yet to be paid and to be secured by mortgage.

We see little question of this court's jurisdiction to grant the relief sought. Within the limited subject of 'affairs of decedents' the equity jurisdiction of this court is plenary. Raymond v. Davis' Estate, 248 N.Y. 67, 161 N.E. 421; Matter of Lyon's Ex'rs, 266 N.Y. 219, 194 N.E. 682; Matter of Poth's Estate, 155 Misc. 116, 279 N.Y.S. 95; Surrogate's Ct. Act, § 40. The affairs of two decedents are here involved and a determination of the issues is necessary to the orderly settlement of both estates. We hold that we have jurisdiction, particularly in view of § 227 of the Surrogate's Court Act, which confers jurisdiction to adjudicate 'all the respective rights' of parties to contracts of this kind.

Regardless of what view may be taken of the ultimate ownership of the proceeds of the Merendino contract, we feel that the administratrix of the surviving widow, to the exclusion of the executrix of the husband's will and of the remainderman thereunder, may convey good title; one which the vendees may not reject. McArthur v. Weaver, 129 App.Div. 743, 113 N.Y.S. 1095. If no equitable conversion took place, then certainly Clara Keyworth, if alive today could alone convey as surviving tenant by the entirety. It necessarily follows that her representative could do likewise. If there were an equitable conversion the same result follows, for then the legal title would have remained in the vendors (Williams v. Haddock, 145 N.Y. 144, 39 N.E. 825; Crippen v. Spies, 255 App.Div. 411, 7 N.Y.S.2d 704), who would have held it as trustees for the vendees, and upon the death of one of the spouses such legal title was perfected in the other. To put it another way, upon the death of one tenant by the entirety, there is no transfer of, succession to, or acquisition of title by the survivor. There is merely a disappearance of the title of the one so dying. So his estate acquires nothing, so far as legal title is concerned, which can be conveyed by anyone. Likewise any duty which such decedent had to execute and deliver a deed, expired with him.

This leaves for disposition the question as to the ownership of the proceeds of the contract. Petitioner relies on Matter of Maguire's Estate, 161 Misc. 219, 291 N.Y.S. 753, affirmed 251 App.Div. 337, 296 N.Y.S. 528, affirmed 277 N.Y. 527, 13 N.E.2d 458, in support of her contention that the Clara Keyworth estate is solely entitled thereto. Respondents' position is that under Williams v. Haddock, supra, an equitable conversion necessarily took place and, on the authority of Matter of Blumenthal's Estate, 236 N.Y. 448, 141 N.E. 911, 30 A.L.R. 901, both estates must share equally in the proceeds. We think neither Maguire nor Blumenthal is entirely determinative of the case here presented. In both those cases the courts were dealing with the proceeds of executed contracts for the sale of tenancies by the entirety. Title had passed. We are dealing with an executory contract. The former case is authority for the proposition that where a husband furnishes the entire consideration for the creation of a tenancy by the entirety, and his wife prececeases him, after they both had entered into a contract of sale, no equitable conversion resulted and his estate was entitled to the entire proceeds. In other words, he intended to benefit her only if she survived him. That is not our case. Blumenthal merely prescribes a rule of presumption which prevails in the absence of evidence of intent, and where the consideration is either furnished by both spouses or it cannot be determined...