Kindermann's Estate v. Christian Science Board of Directors of the Mother Church

• Decision Date: 14 February 1968
• Citation: 288 N.Y.S.2d 480,21 N.Y.2d 790,235 N.E.2d 452
• Parties: , 235 N.E.2d 452 In the Matter of the ESTATE of Elfriede K. KINDERMANN, Deceased. William J. KALT et al., Appellants, v. CHRISTIAN SCIENCE BOARD OF DIRECTORS OF THE MOTHER CHURCH, the First Church of Christ, Scientist, in Boston, Massachusetts et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 480

288 N.Y.S.2d 480

21 N.Y.2d 790, 235 N.E.2d 452

In the Matter of the ESTATE of Elfriede K. KINDERMANN, Deceased.

William J. KALT et al., Appellants, v. CHRISTIAN SCIENCE BOARD OF DIRECTORS OF THE MOTHER CHURCH,

the First Church of Christ, Scientist, in Boston,

Massachusetts et al., Respondents.

Court of Appeals of New York.

Feb. 14, 1968.

Appeal from Supreme Court, Appellate Division, Second Department, 27 A.D.2d 856, 287 N.Y.S.2d 546. Elmer Lee Fingar and John G. McQuaid, White Plains, for appellants.

Ezra P. Prentice, Jr., and J. Franklin Van Deren for Christian Science Board of Directors of the Mother Church, The First Church of Christ, Scientist, in Boston. Massachusetts, respondent.

Louis J. Lefkowitz, Atty. Gen., (William Roberts, Samuel A. Hirshowitz and Gustave J. Soderberg, New York City, of counsel), as attorney for ultimate charitable beneficiaries, respondent. Proceeding was brought to construe will and settle account of executors.

Paragraph third of will of testatrix contained a direction that all inheritance, estate transfer, succession, and legacy taxes should be paid from residuary estate. The fourth and fifth paragraphs made provisions for various specific bequests. The sixth paragraph disposed of the rest, residue and remainder of the estate in 10 subparagraphs. The first nine of the subparagraphs (a) through (i) contained general legacies. The final subparagraph (j) disposed of the balance of the residuary estate, including any and all lapsed legacies then remaining.

The Westchester County Surrogate's Court, Otto C. Jaeger, S., entered a decree denying a motion for reargument following a decision of the Surrogate's Court, Harry G. Herman, S., 48 Misc.2d 607, 265 N.Y.S.2d 538.

The Supreme Court, Appellate Division, Second Department, 27 A.D.2d 856, 278 N.Y.S.2d 546, entered an order March 27, 1967 which affirmed, by a divided court, the decree of the Surrogate's Court and held that the parties were agreed that all pre-residuary legacies were exempt from tax by clear meaning of the third paragraph, and that the dispute was as to the allocation of taxes within the sixth paragraph, the appellants taking the position that the final subparagraph thereof was the true residuary, and that the will contained no direction against apportionment within the residuary as such, and that the Appellate Division could not construe the will to determine what the testatrix intended as the residuary estate, since there is a strong public policy in favor of statutory apportionment.

Christ, J., dissented and voted to reverse the decree in memorandum in which Samuel Rabin, J., concurred. The dissenting memorandum provided that the executors did not apportion taxes, but paid them out of the balance of the 'residuary estate.' One of the 'balance' legatees and the Attorney General objected to such exoneration of those persons and institutions named in subparagraphs (a) through (i) of the sixth paragraph, and that the objections had been sustained by the Surrogate and by the majority of the Appellate Division, and that the legatees named in subparagraphs (a) through (i) are having their legacies reduced by a proportionate amount of the estate taxes, and that the writer of the memorandum disagreed because he believed that the testatrix would have wished them to have the specified amounts of the legacies undiminished, and that he considered a legacy to a named beneficiary in a specified amount an unqualified legacy, and that though there appeared to be a residuary within a residuary, such was illusory for there was more than sufficient money in the estate to pay all unqualified direct payments designated subparagraphs (a) through (i), and that the true and real residuary was delineated in the final subparagraph, subparagraph (j), and that everything that was left, after all other directed payments had been made, went to the legatees there named, and that this was the clause on which the testatrix relied to prevent intestacy as to any of her property and it was in such subparagraph that she intended the tax burden to fall, and that the legatees named in subparagraph (j) were to get nothing until all others were paid, and with respect to taxes, a preference in payment appeared to have been provided for the legatees in the fourth and fifth paragraphs over the legatees in subparagraphs (a) through (i) in the sixth paragraph, but there was also a clear and unmistakable preference for the subparagraphs (a) through (i) legatees over subparagraph (j) legatees in such regard, and that thus it appeared logical and reasonable that the tax exoneration clause meant the exoneration of the legatees in subparagraphs (a) through (i), as well as those in the fourth and fifth paragraphs.

Appeal was taken to the Court of Appeals.

Order reversed and objections to the executors' account dismissed on the dissenting opinion at the Appellate Division, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.

FULD, C.J., and BURKE, SCILEPPI, BERGAN and KEATING, JJ., concur.

BREITEL, J., concurs in the following opinion in which JASEN, J., concurs.

BREITEL, Judge (concurring).

I agree that the order of the Appellate Division should be reversed. In so agreeing, candor requires the statement that I perforce vote to relax the rigorous decisional interpretations heretofore placed upon section 124 of the...