Markham v. Tibbetts
| Decision Date | 04 February 1947 |
| Citation | 79 F. Supp. 47 |
| Parties | MARKHAM v. TIBBETTS et al. |
| Court | U.S. District Court — Southern District of New York |
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John F. X. McGohey, U. S. Atty. and David McKibbin, Asst. U. S. Atty., both of New York City, John S. Sonnett, Asst. U. S. Atty. Gen., Harry LeRoy Jones and Albert Parker, Sp. Assts. to Atty. Gen., and Elmer J. Kelsey, of New York City, for plaintiff.
Tibbetts, Lewis, Lazo & Welch, of New York City (Murray D. Welch and George A. Dickinson, both of New York City, of counsel), for defendants Tibbetts and Lewis.
Nathaniel L. Goldstein, Atty. Gen. of New York, and Corning G. McKennee, Asst. Atty Gen., as the statutory representative of the unknown beneficiaries of gifts and trusts for educational, religious, charitable and benevolent uses and purposes.
This is an action by the Alien Property Custodian for a declaratory judgment declaring and defining his rights as successor in interest to Martha Sakrausky and her issue, found by him to be enemy nationals, in the estates of Mary Martha Taylor and Harland B. Tibbetts, and impressing a constructive trust thereon, subject to such deductions as may be allowed by the Surrogate's Court. Plaintiff moves for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c. All the essential facts are admitted; defendants set up only legal defenses.
Mary Martha Taylor died, a resident of Westchester County, New York, on June 2, 1943. She left two children, Martha Sakrausky and Aimee (Morecroft) Mishou. Her will, executed on June 2, 1941, was admitted to probate in the Surrogate's Court of Westchester County on November 15, 1943. She nominated as her executors, Harland B. Tibbetts and the New York Trust Company, and, in the event that Tibbetts should fail to qualify, George F. Lewis, and, in the event that Lewis should fail to qualify, Murray D. Welch. The Trust Company renounced and Tibbetts died before the will was probated, so that Letters Testamentary were issued to George F. Lewis, as sole executor.
Harland B. Tibbetts died, a resident of Kings County, New York, on July 6, 1943. His will was admitted to probate in the Surrogate's Court of Kings County on July 20, 1943, and Letters Testamentary thereunder issued to his widow, Florence G. Tibbetts.
In her will Mrs. Taylor made three separate devises and bequests in the same language, viz., "absolutely to Harland B. Tibbetts, if he shall survive me; or if he shall predecease me, then to George F. Lewis, if he shall survive me; or if he shall predecease me, then to Murray D. Welch." With respect to one of these devises and bequests, Robert C. Rand was added as a fourth legatee, if Welch should predecease her. The property so devised and bequeathed was, first, one-half, after certain cash legacies, of the capital of a trust fund created by a deed of trust between Richard T. Parker and Eben Bacon, over which she had the power of appointment (Article Four), second, two separate devises and bequests, of one-third each, of all property, etc. coming to her under the wills of her grandfather, James Parker, and her father, Richard T. Parker, over which she also had the power of appointment (Article Five), and, third, one-half of her residuary estate (Article Six). Other property was also devised and bequeathed to them in certain contingencies in the same language.
Tibbetts, Lewis, Welch and Rand were members of the firm of lawyers who had acted as her legal advisers for many years.
On January 14, 1932, they had entered into a written agreement, which will be hereafter referred to as the "1932 Agreement," with Mrs. Taylor which recited that they were members of the firm of Tibbetts, Lewis & Rand, that she had executed her last will on the same day, whereby she had bequeathed, devised and/or appointed to one of them all the property aforesaid. All this property, with the exception of one-third of the James Parker Fund, which was disposed of under another agreement executed in December, 1931, was described as the "Additional Property". The agreement further recited that she had made such dispositions of such "Additional Property" upon the understanding that they would be disposed of by the person who should receive them in such manner as to carry out her wishes as expressed in the agreement. Her 1941 will took the place of this will, as was permitted by the agreement.
The agreement then provided that it was her wish and intent, which they agreed to respect and carry out, that the "Additional Property", so devised and bequeathed, should "be used for the benefit of Martha Sakrausky and/or her children, in the manner, to the extent and upon the conditions hereinafter expressed." The agreement explicitly bound the parties, their heirs, next of kin, executors, administrators and assigns. Mrs. Sakrausky was not a party to this agreement. The conditions contained therein were as follows:
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Brownell v. Union & New Haven Trust Co.
...246, 41 S.Ct. 293, 65 L.Ed. 604; Central Union Trust Co. of New York v. Garvan, supra, 254 U.S. 567, 41 S.Ct. 214; see Markham v. Tibbetts, D.C., 79 F.Supp. 47, 54. These remedies are exclusive. Sturchler v. Sutherland, D.C., 19 F.2d 999, 1008; Josephberg v. Markham, 2 Cir., 152 F.2d 644, 6......
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Clark v. Continental Nat. Bank of Lincoln, Neb., Civ. No. 3-49.
...to be compelling as judicial precedent. Interesting and instructive in principle, although not precisely in point, are Markham v. Tibbetts, D.C.N.Y., 79 F.Supp. 47, modified Clark v. Tibbetts, D.C.N.Y., 79 F.Supp. 60, and Koehler v. Clark, 9 Cir., 170 F.2d 779. Neither was an action under T......