Rothko's Estate, In re

• Decision Date: 31 August 1972
• Citation: 335 N.Y.S.2d 666,71 Misc.2d 74
• Parties: ESTATE of Mark ROTHKO. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 666

335 N.Y.S.2d 666

71 Misc.2d 74

ESTATE of Mark ROTHKO.

Surrogate's Court, New York County.

Aug. 31, 1972.

Richenthal, Abrams & Moss, New York City, for petitioners, co-executors, Morton Levine, Bernard J. Reis and Theodoros Stamos.

Butler, Jablow & Geller, New York City, for respondent, Kate Rothko.

Hall, Dickler & Howley, Garden City, for Barbara B. Northrup, guardian of Christopher Rothko, respondent.

Louis J. Lefkowitz, Atty. Gen., State of New York, New York City (Gustave Harrow, Asst. Atty. Gen., of counsel), for ultimate charitable beneficiaries.

Eaton, Van Winkle & Greenspoon, New York City, for The Mark Rothko Foundation, Inc.

MILLARD L. MIDONICK, Surrogate.

The testator died on February 25, 1970 survived by his widow and two infant children. Following the probate of the testator's will the mother of the children, as their guardian, served and recorded notices of election, pursuant to EPTL 5--3.3, contesting the charitable disposition in the will upon the ground that the amount of such charitable gift exceeded the limitation imposed by the cited statute. The widow died on August 26, 1970.

The executors thereafter instituted this proceeding to determine the validity of the elections asserted on behalf of the testator's children. One child is now of age and appears by her attorney. The other child appears by his guardian.

EPTL 5--3.3 provides:

'(a) A person may make a testamentary disposition of his entire estate to any person for a benevolent, charitable, educational, literary, scientific, religious or missionary purpose, provided that if any such disposition is contested by the testator's surviving issue or parents, it shall be valid only to the extent of one-half of such testator's estate, wherever situated, after the payment of debts, subject to the following:

(1) An issue or parent may not contest a disposition as invalid unless he will receive a pecuniary benefit from a successful contest as a beneficiary under the will or as a distributee.'

The testator was a modern painter of high reputation. His will bequeaths five of his paintings to the Tate Gallery, London, devises and bequeaths a dwelling and its contents together with the sum of $250,000 to his widow and bequeaths the residuary estate to the Mark Rothko Foundation, a non-profit organization.

Article FIFTH of the will contains substitutionary gifts to the testator's children. That article reads:

'FIFTH: In the event of the death of my wife or the simultaneous death of myself and my wife, I give, devise and bequeath the sum of Two Hundred Fifty Thousand ($250,000) Dollars, together with the real property at 118 East 95th Street, New York, and all the contents thereof, in equal shares to my children, KATE and CHRISTOPHER.'

This estate is of substantial value and is alleged in the petition in this proceeding to be in excess of $1,000,000. Other litigation pending in this estate involves issues in which contentions are made that the testator's paintings have a market value of several millions of dollars and in such litigation a contract executed by the executors for the sale of approximately one-eighth of the testator's works for $1,800,000 is challenged as inadequate. There can be no dispute that the testator disposed of more than one-half of his estate for the purposes referred to in EPTL 5--3.3(a) and, if this statute is applicable, the issue of the testator, as intestate distributees, are entitled to invoke the benefit of the statute.

The significance of EPTL 5--3.3 was considered in Matter of Cairo, 35 A.D.2d 76, 312 N.Y.S.2d 925, affd. without opn. 29 N.Y.2d 527, 324 N.Y.S.2d 81, 272 N.E.2d 574. In that case had the decedent died intestate her grandson would have been her statutory distributee and, as such distributee, he contested a testamentary disposition which concededly exceeded one-half of the testatrix's estate. The rationale of the Appellate Division opinion was that this grandchild lacked standing to contest the charitable disposition in his grandmother's will because that instrument contained a clause reading: 'I make no bequest to my grandson (and others) for good and sufficient reason.' The thinking of the court was that the intention of the testatrix was controlling and it was her privilege, not only to disinherit her grandson in her will, but also, by appropriate testamentary language, to render EPTL 5--3.3 inoperative. The court stated that, because the testatrix expressed an intention to make no bequest to her grandson, she not merely barred him from participation in her estate under her will but also deprived him of a status as her statutory distributee and thus prevented him from qualifying under the terms of the statute as a person entitled to receive 'a pecuniary benefit from a successful contest as a beneficiary under the will or as a distributee.'

More recently EPTL 5--3.3 was applied in Matter of Norcross, 67 Misc.2d 932, 325 N.Y.S.2d 477, affd. upon the opinion of Di Falco, S., 39 A.D.2d 874. The opinion of Surrogate Di Falco, adopted by the Appellate Division, discussed the history of the statute and, to some extent, its operation since its inception in different language in the year 1860. That opinion called attention to the fact that the right of election formerly granted to a spouse to contest an excessive charitable disposition has been eliminated from our statutory law in the belief that the right of election granted of a spouse by EPTL 5--1.1 provides full and sufficient relief to a surviving spouse. In this connection the Surrogate's opinion referred to the possibility that the rationale of the Cairo decision, if equally applicable to the right of election granted to a spouse, could nullify such election, and by a simple testamentary direction, render a surviving spouse without a right to participate in an estate.

Since the Norcross opinion fully discussed the legislative intention expressed in the statute and also prior judicial interpretations of the predecessor statutes, no purpose would be served by any attempt at this time to elaborate on the well-reasoned opinion of Surrogate Di Falco, expressly adopted by the Appellate Division.

Recognizing the controlling effect of the Cairo decision, Surrogate Di Falco found that the will in the Norcross case lacked the intention which the courts had found so significant in Cairo. The expressions of affection for issue manifest in the Norcross will, so contrary to the words of disinheritance appearing in...