Lowe's Estate, In re
| Citation | 265 N.Y.S.2d 257,24 A.D.2d 983 |
| Parties | In re LOWE'S ESTATE. In the Matter of Julia ZEH, now known as Julia M. Zeh Lowe, deceased. Mary Lou HOWELL et al., Appellants, v. Julie Zeh TOMPKINS et al., Respondents. * * State Report Title: In re Zeh's Estate |
| Decision Date | 06 December 1965 |
| Court | New York Supreme Court — Appellate Division |
Raffe & Raffe, Riverhead, for appellants; Solomon Raffe, Riverhead, of counsel.
Smith, Tasker, Finkelstein & Lundberg, Riverhead, for respondent; Reginald C. Smith, Riverhead, of counsel.
Before UGHETTA, Acting P. J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In proceedings (a) to probate certain instruments, respectively dated October 14, 1941 and April 1, 1953, as the last will and testament of Julia M. Zeh, also known as Julia M. Zeh Lowe; (b) for a construction of the 1941 wills; (c) for a determination of claims pursuant to section 211-b of the Surrogate's Court Act; and (d) for a determination as to the effect of the 1941 will (which was a joint will executed by the decedent Julia M. Zeh and by her former husband, Frederick A. Zeh, and which had been admitted to probate in 1947 as the last will of said Frederick A. Zeh) upon the 1953 will, insofar as the rights of parties were concerned, the appeal is from so much of a decree of the Surrogate's Court, Suffolk County, entered June 3, 1965 as: (1) adjudged that the 1941 will, which was admitted to probate, was and is a joint will of Frederick A. Zeh and Julia M. Zeh, also known as Julia M. Zeh Lowe, and that upon its probate in 1947 and upon the acceptance by Julia M. Zeh of its benefits, she became bound by its provisions; (2) adjudged that the 1941 will, upon its probate and the acceptance of its provisions by Julia M. Zeh, constituted a contract which bound Julia M. Zeh and her personal representative as to the provisions thereof and was enforceable by the beneficiaries under the 1941 will; (3) enjoined the petitioner bank from distributing the assets of Julia M. Zeh Lowe in the manner provided for in her last will and testament dated April 1, 1953 and admitted to probate on December 3, 1964; and (4) made appropriate provisions disposing of the estate of Julia M. Zeh Lowe in accordance with the provisions in the will dated October 14, 1941.
Decree modified on the law by striking out all of its decretal paragraphs, except the last one, and by substituting therefor provisions: (1) adjudging that the 1941 joint will did not constitute a contract between Frederick A. Zeh and his wife, Julia M. Zeh, which bound the survivor to dispose of his or her estate in the manner provided for in the 1941 will; and (2) making appropriate directions as to the disposition of the estate of Julia M. Zeh Lowe solely in accordance with the terms of the will dated April 1, 1953. As so modified, decree affirmed, with costs to both sides payable out of the estate, and proceedings remitted to the Surrogate's Court for the entry of a decree in accordance herewith. No issues of fact were considered.
The issue is whether a joint will executed by the decedent and her husband on October 14, 1941 constituted an agreement or contract whereby the survivor became bound to dispose of his or her estate in the manner specified in the joint will. The second paragraph of the joint will provided that 'We give, devise and bequeath all of the Estate, of whatsoever kind and nature and wheresoever situate, of which we, or either of us, may die seized and/or possessed or in which we, or either of us, may have any interest or to which we, or either of us, may be entitled at the time of our respective deaths, each unto the other, meaning thereby that the survivor of us shall be the absolute owner, to him or to her to have and to hold, his or her heirs and assigns absolutely and forever of all that both of us possess.' (emphasis added). The third paragraph provided: 'Upon the death of the survivor of us, or in the event that our deaths should occur simultaneously, or approximately so,...
To continue reading
Request your trial
-
Tatkow's Estate, In re
...quality of proof viz. 'clear,' 'convincing,' 'indisputable,' to establish that irrevocability was intended was lacking. (Matter of Zeh, 24 A.D.2d 983, 265 N.Y.S.2d 257, affd. 18 N.Y.2d 900, 276 N.Y.S.2d 635, 223 N.E.2d 43; Oursler v. Armstrong, 10 N.Y.2d 385, 223 N.Y.S.2d 477, 179 N.E.2d 48......
-
Opal v. Comm'r of Internal Revenue (In re Estate of Opal)
...provisions of the will under consideration used language of absolute gift in devising property to the survivor. Matter of Zeh, 24 App. Div. 2d 983, 265 N.Y.S. 2d 257, affirmed on opinion of lower court 18 N.Y. 2d 900 (1965), 223 N.E.2D 43 (1966); Matter of Silverman, 43 Misc.2d 909, 252 N.Y......
-
Barrie's Estate, In re
...an absolute gift, not conditioned by any agreement binding the survivor to dispose of his estate in a particular way. Matter of Zeh, 24 A.D.2d 983, 265 N.Y.S.2d 257, affd., 18 N.Y.2d 900, 276 N.Y.S.2d 635, 223 N.E.2d 43; Matter of Silverman, 43 Misc.2d 909, 252 N.Y.S.2d 587; Matter of Aquil......
-
Hassan's Estate
...Oursler v. Armstrong, 10 N.Y.2d 385, 223 N.Y.S.2d 477, 179 N.E.2d 489; Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265 and Matter of Zeh, 24 A.D.2d 983, 265 N.Y.S.2d 257, affd. 18 N.Y.2d 900, 276 N.Y.S.2d 635, cited by the guardian ad litem are inapposite. These cases involve situations where i......