Rezzemini v. Brooks

• Decision Date: 05 June 1923
• Citation: 236 N.Y. 184,140 N.E. 237
• Parties: REZZEMINI v. BROOKS et al.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 184

140 N.E. 237

REZZEMINI

v.BROOKS et al.

Court of Appeals of New York.

June 5, 1923.

Action by Louis J. Rezzemini, as committee of the person and estate of John J. W. Durant, an incompetent person, against Roelif H. Brooks, as executor and trustee under the will of Eliza W. Durant, deceased, and others. From a judgment entered on an order of the Appellate Division of the Supreme Court in the Third Judicial Department (204 App. Div. 157,197 N. Y. Supp. 872), reversing a judgment in favor of plaintiff, entered upon a decision of the court at a Trial Term (118 Misc. Rep. 791,194 N. Y. Supp. 748), a jury having been waived, and directing judgment in favor of defendants, plaintiff appeals.

Reversed, and judgment of the Trial Term modified and affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

Charles Irving Oliver and Louis J. Rezzemini, both of Albany, for appellant.

Robert E. Whalen, of Albany, for respondent Roelif H. Brooks.

Russell M. Johnston, of Albany, for respondents John Brooks and others.

HOGAN, J.

Eliza W. Durant died August 19, 1918, leaving a last will and testament which was executed May 9, 1918. The testatrix at the time of her death was upwards of 70 years of age. Her husband, Allen B. Durant, predeceased her some 35 years, leaving a last will and testament, executed June 20, 1882, together with a codicil executed July 5, 1882, both of which were admitted to probate in Albany county, January 9, 1883. The only heir or next of kin of testatrix at the time of her death was a son, John M. W. Durant, who was and for some three years had been a helpless, bedridden, incurable paralytic, and also had been, on or about June 8, 1917, upon the pertition of testatrix, judicially declared to be of unsound mind and mentally incompetent. In that proceeding the plaintiff in this action was appointed committed of the person and estate of John M. W. Durant, duly qualified as such committee, and is now acting in that capacity. For some period of time prior to the death of testatrix her son, John M. W. Durant, resided with his mother and was cared for by her and nurses down to August 19, 1918, when plaintiff, as committee, upon the death of the mother, had the son removed to the Albany Hospital, where he had since remained as a patient.

Under the will of Allen B. Durant, husband of testatrix and father of John M. W. Durant, the incompetent, the latter was entitled to receive the income from one-half of his father's estate under a trust provision created for such purpose, and upon the death of testatrix, his mother, on August 19, 1918, the son, John, became absolute owner of the remainingone-half of his father's estate; his mother, the testatrix, having enjoyed the income therefrom the extent of $1,000 per year to the time of her death. The principal of the two funds held by plaintiff aggregates $28,643.05. The principal of the estate of Eliza W. Durant is $22,796.67.

The plaintiff, asserting that under the will of testatrix it is the duty of the trustee named in te will to pay over to plaintiff as committee of the incompetent, out of the principal of the trust fund held by said trustee, an amount equal to the difference between the cost of the support of the incompetent since the death of the testatrix and the income paid over by defendant trustee to plaintiff as committee during such period, brought this action to recover such amount.

The trial justice found as matter of fact that from the date of the death of testatrix to April 1, 1922, defendant trustee had paid to plaintiff the sum of $3,376.50 income from the estate of testatrix, while during the same period plaintiff had expended for the necessary and proper support and maintenance of the incompetent the sum of $6,559.13, or $3,182.63 in excess of the amount so received; that the amounts expended were proper and necessary; and directed judgment for plaintiff for that amount. The Appellate Division reversed that finding of fact, and found that the amount expended by the plaintiff for the necessary and proper support of the incompetent in excess of the amount received from the defendant trustee was $3,872.27. Such modification was due to an oversight upon the trial, and, while favorable to plaintiff, the same is not complained of by defendants.

The defendant, executor, trustee, and the guardian ad litem of the remaindermen, in answer to the claim of plaintiff, asserted that, before resort could be had to the principal of the trust estate created in the will of testatrix, the income of the incompetent from all sources must have been exhausted for his proper and necessary support.

The Appellate Division made additional findings in effect as follows:

A. Statements made by testatrix at the time she executed her will: That she had no relatives to whom she wished to give the corpus of her estate after the death of her son; there were no charities in which she was interested; she had no desire to give her property directly to her son, to be administered by plaintiff; she insisted upon the selection of Roelif H. Brooks as trustee against his will and without his knowledge; ‘the infant defendants herein were made remaindermen to receive the corpus of her estate,’ or so much thereof ‘as might remain upon the death of her son.’

B. That said Eliza W. Durant, when she executed her last will and testament, did not intend that the entire support of her said son should come out of her own estate, to the extent of using the principal of her estate for any deficiency required to meet the cost of her said son's support, over and above the income from her estate.

C. That when testatrix executed her will she was familiar with what constituted her property and the value thereof, was aware that her son had participated in the income from the estate of his father and would continue to do so after her death, and knew the extent to which he would participate thereunder.

D. That under the fourth clause of her will testatrix intended that, in determining whether the income from her estate be insufficient for the proper support of her said son, and in determining whether any of the principal of her estate be necessary for that purpose, there should be taken into consideration the other sources of income available to aid in the support of her said son.

A requested finding of fact submitted in behalf of the infant defendants refused by the trial justice as follows:

‘That the expenditure of no part of the principal of the property held by said Roelif H. Brooks as trustee as aforesaid is now necessary for the support and maintenance of John M. W. Durant,’

was approved. As conclusion of law the Appellate Division found:

‘That it is not necessary to expend any portion of the principal of the trust estate created by said last will and testament of said Eliza W. Durant, deceased, for the support of her said son, John M. W. Durant, plaintiff's incompetent, because, with the income available from her said son's own property and from the estate of his father, Allen B. Durant, the income from the estate of said Eliza W. Durant, deceased, has been and is more than sufficient for the proper support of her said son,’

and reversed the judgment of the trial court. While the order of reversal recites that the judgment was reversed on the law and the facts, the reversal was in...