Leckie's Estate, Matter of
| Citation | 54 A.D.2d 205,388 N.Y.S.2d 858 |
| Parties | In the Matter of the ESTATE of Hazel A. LECKIE. Jean KAUFFMAN and Andrew F. Leckie, Appellants, v. William J. McDONALD, Respondent. |
| Decision Date | 05 November 1976 |
| Court | New York Supreme Court Appellate Division |
Bonney & Nicit, Waterloo, for appellants (J. J. Nicit, Waterloo, of counsel).
Bond, McDonald & Toole, Geneva, for respondent (William McDonald, Geneva, of counsel).
Before MARSH, P.J., and MOULE, SIMONS, DILLON and WITMER, JJ.
Petitioners Jean Kauffman and Andrew F. Leckie appeal from an order of Surrogate's Court, Ontario County, which dismissed their petition and granted respondent William J. McDonald's motion for summary judgment. Petitioners allege that decedent Hazel A. Leckie died on February 28, 1972 and that her will had been offered for probate by respondent William J. McDonald who was by such will designated as executor and primary beneficiary. Petitioners had filed objections as contingent remaindermen under a trust over which Hazel Leckie had a testamentary general power of appointment. The objections were withdrawn and probate of the will was had on November 15, 1972, in accordance with a compromise agreement which was reduced to writing on December 12, 1972. As a result of the compromise agreement, respondent, as executor and principal beneficiary, agreed to split the principal of the trust in two equal shares, one share going to respondent and the other share to petitioners-appellants:
'Jean Kauffman and Andrew F. Leckie agree to accept and William J. McDonald agrees that they shall be paid one-half of the principal of the Trust Fund set forth under Paragraph '4' of the Last Will and Testament As of the date of appointment of the executor, November 15, 1972, plus all interest accrued on said amount from November 15, 1972 to date of payment, less the pro-rata share of federal and state income and estate taxes, executor's statutory commissions and attorney's fees and disbursements based on the minimum fee schedule of Ontario County' (emphasis added).
Petitioners sought an order from the Surrogate requiring respondent to disclose a detailed accounting of the assets contained in the trust agreement referred to in paragraph 4 of the will and to perform the compromise agreement by paying over one-half the trust corpus as of November 15, 1972 together with interest.
On March 3, 1972 respondent William J. McDonald petitioned the Surrogate of Ontario County for probate of the Last Will and Testament of Hazel A. Leckie and the issuance of Letters Testamentary to petitioner William J. McDonald. The probate petition recited the death of Hazel A. Leckie as February 28, 1972, leaving her surviving as distributees who would take in intestacy two sisters and two brothers, none of whom were mentioned in decedent's will. In paragraph 3 of her will decedent made eight specific bequests. Two of the bequests are for $10,000 cash amounts and the remainder in specific personalty. One of the cash bequests was revoked by a Codicil executed two years later. Paragraph 4 of the will purports to exercise a general power of appointment granted by a trust agreement dated July 22, 1965, by exercising it in favor of the residuary estate of the donee of the power:
Paragraph 5 of the will of decedent leaves the residuary estate to respondent William J. McDonald:
Paragraph 7 of decedent's will appoints respondent executor thereof. A decree admitting the will to probate was signed on November 15, 1972 and an order of the Surrogate approving the agreement of compromise was signed on April 23, 1973. The order approving the agreement of compromise additionally provided that the Huntington National Bank of Columbus, Ohio, pay over to respondent William J. McDonald all the sums in its control belonging to the estate of Hazel A. Leckie. The compromise agreement itself, in addition to splitting the trust corpus between petitioners-appellants, Jean Kauffman and Andrew F. Leckie, and respondent, William J. McDonald, also provided for a $40,000 cash payment from the estate for four surviving brothers and sisters (20% Each) and apparently four children of a deceased sibling (5% Each).
In an apparent attempt to fulfill his obligation under the compromise agreement, respondent, on the stationery of his law office, sent a letter to Bonney and Nicit, attorneys for petitioners, enclosing a check for $81,400. The letter provided:
'Dear John:
Enclosed herewith is a draft in the sum of $81,400.00. I have computed the figures as follows:
The trust fund is approximately
63% of the estate
The total taxes, disbursements
commissions and attorneys' fees
total $102,320.50
One-half of 63% of this figure
is 32,230.00
Leaving a balance due of 91,400.00
I have retained $10,000.00 in the event of any tax deficiencies. If you have any questions, do not hesitate to contact me.'
In a letter dated September 18, 1973 petitioners' attorneys acknowledged the receipt of the $81,400 check and a copy of the Federal estate tax return. That letter states:
'We agree with your arithmetic i.e.
1. That $247,263., d/d Trust Value, is 63% Of the $392,480 gross estate.
2. That one-half of 63% Of $102,320. taxes, etc. is $32,230.
3. That one-half of $247,263 equals $123,631.
4. That $123,631. minus $32,230 equals $91,401.
'More important, our compromise agreement provides that you shall pay all interest accrued on the principal value at November 15, 1972 from November 15, 1972 to date of payment.
'Will you kindly furnish us an inventory of the trust securities and cash as of November 15, 1972 which will include interest rates, maturity dates and principal amounts so that we may be able to arrive at correct principal values and interest accruals.
'While awaiting the above, we shall proceed to disburse the $81,400. which you sent us, which was just honored today.'
The next correspondence from respondent is dated March 12, 1975 wherein it provides as follows:
'Gentlemen:
'The amount of the check was computed as follows
Deficiency Federal and State Estate
Tax was in the total sum of $14,906.79
One-half of 63% of this figure is 4,695.64
Leaving a Balance due on the
$10,000.00 retained of 5,304.36
share in the sum of $1,145.11. I have figured the whole amount even though the payment of $81,400.00 was paid to you on September 10, 1973.
share of the $363.80.
'If you have any questions concerning the same, do not hesitate to contact me.'
Appellants' attorneys responded on March 20:
'Dear Bill:
'This will acknowledge receipt of yours of March 12, 1975 with contents.
'On reviewing our file I find that we wrote you on September 18, 1973, copy of which letter is enclosed. It is clear that by the terms of our letter we reserved the rights of our clients in respect to any capital gains occurring between date of Death (February 28, 1972) and November 15, 1972. You never answered our letter.
'Before we can endorse your $6,986.07 check which bears the notation
On March 24, 1975 petitioners had the check for $6,986.07 enclosed with the March 12 communication from respondent certified, which check stated on its face 'final payment in full settlement all claims'.
For the first time in a letter dated April 1, 1975, respondent William J. McDonald...
To continue reading
Request your trial
-
Odyssey Intern. Ltd. v. Reebok Intern. Ltd.
...72 A.D.2d 452, 424 N.Y.S.2d 902 app. dismissed (1980) 49 N.Y.2d 981, 428 N.Y. S.2d 950, 406 N.E.2d 805; In the Matter of Estate of Leckie (4th Dep't 1976) 54 A.D.2d 205, 388 N.Y.S.2d 858. Another concerns an offer that is disproportionately small relative to the outstanding debt that it pur......
-
Rosenthal v. Quadriga Art, Inc.
...a specific demand by the alleged creditor and an express, good-faith disagreement with that demand by the debtor ( see Matter of Leckie, 54 A.D.2d 205, 214–15, 388 N.Y.S.2d 858 [4th Dept. 1976] ). Here, as noted, there are a number of factual disputes as to which accounts [963 N.Y.S.2d 194]......