Matter of Stoller

• Citation: 780 N.Y.S.2d 861,4 Misc.3d 538
• Parties: In the Matter of the Estate of ELIAS STOLLER, Deceased.
• Decision Date: 18 June 2004
• Court: New York Surrogate Court

4 Misc.3d 538
780 N.Y.S.2d 861

In the Matter of the Estate of ELIAS STOLLER, Deceased.

June 18, 2004.

Harry Amer, White Plains, for petitioners.

Ecker Loehr Ecker & Ecker, Yonkers (Robert L. Ecker of counsel), for respondent.

[4 Misc.3d 539]

OPINION OF THE COURT

RENEE R. ROTH, S.

Incident to the probate proceeding in the estate of Elias Stoller, one of decedent's sons, Robert Stoller, seeks limited letters (SCPA 702) to allow him to commence a discovery proceeding against his stepmother, who has offered for probate an instrument which contains an in terrorem clause. The contested application presents a novel issue as to the relationship between a "no contest" clause in a will that has not yet been probated and discovery via limited letters by a party in the probate proceeding.

Mr. Stoller died on September 11, 2001, survived by his wife and two sons from a prior marriage. The propounded instrument, dated January 5, 1998, disposes of decedent's interest in a partnership to his son Philip and gives the widow a pecuniary amount and the residuary estate in trust for her life income benefit, with remainder to decedent's issue. The above-mentioned in terrorem clause, if violated by a beneficiary, would result in a total forfeiture of his, and his issue's, interests under the instrument.

Since decedent's death, the widow and her stepsons have had an on-going dispute about the size of the estate. She contends that decedent's partnership interest (purportedly worth some $35,000) constitutes the major part of the probate estate; they maintain that she is withholding additional assets of significant value. The parties' disagreements ripened into litigation when Robert and Philip filed the present application under SCPA 702, initially seeking the issuance of limited letters to them both. Thereafter, objections to probate were filed by Robert. Philip, however, presumably to avoid triggering the in terrorem clause, has not joined his brother in objecting to the will and has now asked to have his name removed as petitioner in the instant proceeding.

As originally enacted, section 702 provided for the issuance of letters that were limited or restricted to meet some particular need of an estate where a fiduciary with full letters was not warranted (e.g., to institute a wrongful death action in an estate where there is no asset to administer). The statute, however, was amended in 1993 (L 1993, ch 514, § 12, eff Jan. 1, 1994) to add subdivisions (8) and (9), both of which...