Kindermann's Will, In re
Decision Date | 22 December 1965 |
Citation | 48 Misc.2d 607,265 N.Y.S.2d 538 |
Parties | In re KINDERMANN'S WILL. In the Matter of the Judicial Settlement of the Account of Proceedings of William J. KALT, William J. Clancy and Fred Vatter, Jr., as Executors of the Last Will and Testament of Elfriede Keil Kindermann, Deceased. Surrogate's Court, Westchester County |
Court | New York Surrogate Court |
McCarthy, Fingar, Gaynor, Sullivan & Conovan, White Plains (Elmer L. Fingar and John G. McQuaid, White Plains, of counsel), for petitioners.
Cadwalader, Wickersham & Taft, New York City (J. Franklin Van Deren and Ezra P. Prentice, Jr., New York City, of counsel), for The Christian Science Bd. of Directors of the Mother Church, The First Church of Christ, Scientist, in Boston, Mass., respondent.
Louis J. Lefkowitz, Atty. Gen. , for ultimate charitable beneficiaries, respondents.
Steinkamp & Steinkamp, New York City, for The Wartburg Orphan Farm School of the Evangelical Lutheran Church, respondent.
HARRY G. HERMAN, Surrogate.
In Article 'THIRD' of her will the testatrix directed that estate taxes:
'* * * be paid from my residuary estate, and that no part thereof be charged against any legatee, devisee or beneficiary other than other receiving my residuary estate.'
Section 124 of the Decedent Estate Law mandates that the amount of the estate tax be equitably apportioned among the persons benefited except where the testator otherwise directs in his will. A direction such as set forth above exempts pre-residuary dispositions from apportionment of taxes but necessitates apportionment of taxes within the residue (Matter of Shubert's Will, 10 N.Y.2d 461, 225 N.Y.S.2d 13, 180 N.E.2d 410; Matter of Mattes, 205 Misc. 1098, 130 N.Y.S.2d 270, aff'd 285 App.Div. 867, 137 N.Y.S.2d 836, aff'd 309 N.Y. 942, 132 N.E.2d 314; Matter of Bayne's Will, 31 Misc.2d 296, 102 N.Y.S.2d 525; Matter of von Echt's Estate, 39 Misc.2d 373, 240 N.Y.S.2d 703).
Article 'SIXTH' of the will begins:
'All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate * * * I give, devise and bequeath to my EXECUTORS, hereinafter named, and direct that they pay therefrom the following:'
This is followed by nine legacies to individuals or charities, totalling $300,000.00, (a to i), and then the following language:
'j) The balance of my residuary estate, including any and all lapsed legacies, then remaining, I direct my EXECUTORS to divide into two equal parts or shares, and to pay one of such equal parts or shares to MOTHER CHURCH FIRST CHURCH OF CHRIST SCIENTIST * * * and the remaining equal part or share to the WARTBURG ORPHAN FARM SCHOOL OF THE EVANGELICAL LUTHERAN CHURCH * * *'
It is the position of the executors, one of whom is the draftsman, that estate taxes should be borne in their entirety by the two legatees named in Article 'SIXTH', subdivision 'j', which they claim is the true residuary estate.
The Attorney General of the State of New York and the Christian Scientist Church, however, contend that the taxes should be apportioned against all the legacies contained in Article 'SIXTH' on the ground that the apportionment clause contained in Article 'THIRD' refers to the entire residuary estate. No position has been advanced by the Wartburg School.
A disposition that begins 'the balance of my residuary estate' has been construed as the true residuary estate (Matter of Purvey's Estate, 34 Misc.2d 913, 915, 229 N.Y.S.2d 180, 182, aff'd 18 A.D.2d 657, 236 N.Y.S.2d 343). However, when the same construction was adopted in a subsequent case by the same Surrogate's Court and Appellate Division, the Court of Appeals reversed as to this issue (Matter of Urchs, 15 N.Y.2d 893, 258 N.Y.S.2d 425, 206 N.E.2d 358, modifying 20 A.D.2d 291, 247 N.Y.S.2d 263, which had aff'd 39 Misc.2d 186, 240 N.Y.S.2d 467), resulting in a determination that the residuary estate was that contained in the entire residuary clause.
The executors urge that there is no doubt as to the tax apportionment clause of the will and no need to construe the statute, but only a need to construe the will to determine the true residuary clause. This begs the question. The real question before the court is: Against whom should estate taxes be apportioned?
It should be clear by now from the repeated litigation concerning estate tax apportionment that, as stated by Surrogate Delehanty in Matter of Mills, 189 Misc. 136, 142, 64 N.Y.S.2d 105, 110, aff'd 272 App.Div. 229, 70 N.Y.S.2d 746, aff'd 297 N.Y. 1012, 80 N.E.2d 535:
Only if the will expressly stated that estate taxes were not to be apportioned against those legatees named prior to Article 'SIXTH', subdivision 'j', would there be a sufficient direction to overcome the statutory rule, and to require apportionment solely against the legatees named in subdivision 'j'. Article 'THIRD' is clear and unambiguous to the extent that it imposes the taxes upon those receiving the residuary estate. However, so long as there is a question as to which is the true residuary clause, so that there can be several contentions as to who should bear the estate taxes, then there is an ambiguity in the tax apportionment clause. If there is an ambiguity, Section 124 governs and requires apportionment of estate taxes against all the legatees named in Article 'SIXTH' of the will, because there is no clear and unambiguous direction against such apportionment (Matter of Mills, supra).
At trial the court sustained an objection to the testimony of the attorney-draftsman, who is also a residuary legatee, on the authority of CPLR...
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