Schwartz' Will, In re

• Decision Date: 24 August 1961
• Citation: 219 N.Y.S.2d 545,30 Misc.2d 814
• Parties: In re SCHWARTZ' WILL. Petition of David FRIESNER to render and settle his account as Executor of Manes Schwartz, deceased. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 545

219 N.Y.S.2d 545

30 Misc.2d 814

In re SCHWARTZ' WILL.

Petition of David FRIESNER to render and settle his account

as Executor of Manes Schwartz, deceased.

Surrogate's Court, Kings County.

Aug. 24, 1961.

Murry B. Soin, New York City, petitioner pro se.

Neil M. Lieblich, New York City, Special Guardian for Infants.

MAXIMILIAN MOSS, Surrogate.

In this executor's accounting, the Court is required to construe several articles of the testator's will, fix the attorney's fee, determine the manner of abatement of several legacies in order to provide funds necessary to pay administration charges and to pass on several other matters.

The testator died a resident of Kings County on the 12th day of September, 1957. He was survived by his widow who died on May 20, 1958. Although the testator had some cash funds at his death, the cash alone was insufficient to meet all necessary expenses of the estate's administration. Administration expenses, funeral charges and debts must be paid in full before any beneficiary is entitled to share in the estate, and there is a present deficiency.

Since no cash funds are available to meet the necessary administration and funeral expenses, the Court must determine the manner of abatement to meet the deficiency. The usual rule of abatement as enunciated in Duck v. McGrath, 160 App.Div. 482, 145 N.Y.S. 1033, and Matter of Ely's Estate, 153 Misc. 334, 275 N.Y.S.2d 553, that personal property be first applied to meet a deficiency in administration expenses may be varied when there is a contrary intent expressed or implied in the will. In this instance, the Court is satisfied that the decedent expressed such contrary intent in Article 'Second' of the will (Matter of Neely's Estate, 24 Misc. 255, 53 N.Y.S.2d 563; In re Palmer's Will, Sur., 78 N.Y.S.2d 710; Matter of Fabbri's Will, 2 N.Y.2d 236, 159 N.Y.S.2d 184). Accordingly, the Court will require sale of testator's real property at 1360 Flatbush Avenue, Brooklyn, N. Y., to meet such deficiency. If insufficient, then the shares in the 5914-18 Avenue N Realty Co., Inc., will be disposed of to the extent needed to meet the remaining deficiency, and the bequests thereof contained in Article 'Second' of the will, shall be abated pro rata.

The limitation restricting the sale of the shares of stock of 5914-18 Avenue N Realty Co., Inc., contained in said Article 'Second' is in derogation of the right freely to transfer such shares and is hereby declared void (Personal Property Law, § 11; cf. Allen v. Biltmore Tissue Corp., 2 N.Y.2d 534, 161 N.Y.S.2d 418, 61 A .L.R.2d 1309).

The 'Third' Article of the will bequeaths to executors the proceeds of a savings bank account 'which amounts to about $2,000 * * *' for erection of monument and the continuance of various annual payments to several charities 'for as long as this fund lasts'. On testator's death, there was a joint or survivorship account at the savings bank referred to in said Article in the name of the testator or his wife 'payable to either or survivor'. The form of account creates a presumption that the depositors were joint tenants and that after the death of testator leaving his widow, the joint depositor, surviving him with the deposit then subsisting, title passed to the survivor (Moskowitz v. Marrow, 251 N.Y. 380, 397, 167 N.E. 506, 511, 66 A.L.R. 870; Matter of Juedel's Will, 280 N.Y. 37, 19 N.E.2d 671; Matter of Porianda's Estate, 256 N.Y. 423, 176 N.E. 826; Matter of Malone's Estate, 24 Misc.2d 133, 202 N.Y.S.2d 804). Section 239, subdivision 3, of the Banking Law provides that joint accounts in savings banks which are payable to either or the survivor, are subject to a conclusive presumption that it was the intent of both depositors to vest title in the survivor. No evidence was presented that the creation of...