Ratkowsky's Will, In re

CourtNew York Surrogate Court
Citation44 Misc.2d 911,255 N.Y.S.2d 516
PartiesIn re RATKOWSKY'S WILL. In the Matter of the Judicial Settlement of the Account of Proceedings of Marjorie BERLINER, Edna Hillinger and Helen Falk as Executrices of Irene Ratkowsky, Deceased. Surrogate's Court, Nassau County
Decision Date30 December 1964

Morris Winter, New York City, for petitioners.

Silverstein & Levitt, New York City, for claimant-respondent Abe Ratkowsky.

Turk, Marsh, Kelly & Hoare, New York City, for respondents Ella Fischer Nagel, Bernard Fischer and Lionel Fischer, remaindermen.

Louis J. Lefkowitz, Atty. Gen., for Hudson River State Hosp., by Frank J. Duval, Asst. Atty. Gen., New York City.

Charles Feit, Garden City, for Nicholas Fischer, Incompetent.

JOHN D. BENNETT, Surrogate.

In this accounting proceeding the surviving spouse has objected to the deduction from his income, as beneficiary of the residuary trust, of amounts used by the executors to pay real estate taxes on real property in which the surviving spouse has a life tenancy.

The objectant contends that not only were such deductions and payments improper, but that the will relieves him of the obligation to pay real estate, water and sewer taxes.

In the absence of a direction in the will to the contrary, the general rule requires the life tenant to pay all current expenses which include real estate taxes (Matter of Albertson, 113 N.Y. 434, 21 N.E. 117; Matter of Lott's Will, 251 App.Div. 333, 296 N.Y.S. 43). Where the real property is unproductive, however, such expenses may be charged to principal (Spencer v. Spencer, 219 N.Y. 459, 114 N.E. 849; In re Britz' Estate, Sur., 82 N.Y.S.2d 792). Although the objectant states the rents are 'trivial' there appears to be no contention that the property is unproductive or unable to sustain carrying charges out of income (see Matter of Garibaldi's Will, 253 App.Div. 843, 1 N.Y.S.2d 691). In any event, the question here is not whether these taxes can be charged against the real property itself, as upon a sale or other disposition, but whether the estate generally can be required to pay such charges.

Neither the paragraph providing against apportionment of estate and 'similar' taxes nor the clause purporting to relieve the surviving spouse from waste or other accountability as life tenant manifests an intention to subject the residuary estate to the payment of carrying charges incidental to the life tenancy. Such an intent must be set forth in clear and certain language (Matter of Albertson, supra). This is more so the rule where, as here, the will provides for a life tenancy by a provision physically separated from and not a part of the residuary trust (Matter of Williams' Estate, 148 Misc. 14, 266 N.Y.S. 422). The life tenant is accordingly held not entitled to the payment of current expenses, including real estate taxes, from the estate generally and his objection to the executors' failure to make such payments is dismissed.

However, the action...

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