Service's Estate, In re

• Decision Date: 22 April 1965
• Citation: 49 Misc.2d 399,267 N.Y.S.2d 782
• Parties: In re ESTATE of Agnes SERVICE. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 782

267 N.Y.S.2d 782

49 Misc.2d 399

In re ESTATE of Agnes SERVICE.

Surrogate's Court, New York County.

April 22, 1965.

Gilbert L. Offenhartz, New York City, for cross-petitioner.

David H. Scott, New York City, pro se (S. Mulford Blazer, Brooklyn, of counsel).

Philip A. Paulson, New York City, for petitioner-executor.

S. SAMUEL DI FALCO, Surrogate.

The daughter of the decedent attempted to institute a proceeding under Surrogate's Court Act, section 206-a to compel delivery to her of certain savings bank passbooks which were in the decedent's name, in trust for petitioner. The executor under the decedent's will petitioned for a construction of the will and for a determination that the bank accounts and their proceeds were payable to him in order that he might discharge all debts and carry out the provisions of the will. Process on the daughter's petition was never dyly served and her petition was accepted as an answer and cross-petition in the construction proceeding.

The will of Agnes Service contains only two paragraphs, in addition to the introductory material, the first of which reads: 'I give to daughter, Charlotte Service, all my property, in trust, however, and direct that he pay to her the sum of twenty-five dollars per month during her life time.' The second paragraph nominated the attorney-draftsman as executor and and trustee under the will. The decedent was a widow and Charlotte was her only child.

It is undisputed that the decedent had four Totten trust accounts, in all of which her daughter was beneficiary. The accounts in American Irving Savings, Bank, Uion Dime Savings Bank, The Greenwich Savings Bank and Emigrant Industrial Savings Bank aggregated $15,550 on June 27, 1964 (the day of decedent's death). Since that time interest has been credited to three of the accounts. At present dividend rates, the accounts would produce more than $600 a year. The decedent owned 20 shares of stock of McKesson and Robbins, 30 shares of what was described as Amerex Oil Development and an unspecified number of shares of Transcontinental Oil Company. Her trangible personal property is not described in detail, but it would appear to be not of substantial value. The obligations of the decedent at the time she made her will are not set forth in the record. The largest debts specified in the petition relate to the decedent's illness and hospitalization, and they cannot reasonably have been within her contemplation when she made her will.

Reading the decedent's will against the background of surrounding circumstances, it cannot fairly be said that the provisions of the will manifest a clear intent to revoke and cancel the Totten trusts. Modest as her assets were (outside the bank accounts), her obligations and the dispositions in the will were even more modest. If she actually had in mind the trust accounts, then her will directs payment of less than half the income of the bank accounts and it makes no disposition whatever of any of the corpus of her estate. The will makes more sense if read in the light of exclusion of the accounts rather than their inclusion.

What is lacking in the will itself is lacking also in the pleadings which formulate the issues. While the petition of the executor is, in form, one for construction of the will, the point in issue between the parties in reality is whether or not the decedent had revoked the tentative trusts. In support of the argument that she did revoke them, the attorney-draftsman was offered as a witness. He testified that he asked the testatrix, 'What does your estate consist of', and that she replied, 'I have money in the American Savings Bank, the Greenwich Savings Bank, the Dime Savings Bank and one other.' In answer to an inquiry respecting the form of the bank accounts, she said, 'They are in trust for my daughter, Agnes' (sic). He further testified that he asked her: 'It it your intention by this will to concel--to make those temporary trust funds', and again 'Is it your intent now to cancel those temporary trusts in the bank', and that she replied in the affirmative to both questions.

There is no doubt that in construing a will, direct statements of intent by the testator to his draftsman are not admissible. (Matter of Smith's Will, 254 N.Y. 283, 289, 172 N.E. 499, 500, 72 A.L.R. 867; Matter of Powers' Estate, Sur., 85 N.Y.S.2d 607, 609; 9 Wigmore on Evidence, 3rd Ed., p. 229, § 2471; Richardson on Evidence, 8th ed., p. 580.) The reason for the exclusion, as Professor Wigmore points out, is not found in any prohibitory rule of evidence, but rather in 'the rule which prohibits setting up any extrinsic utterance to compete with and overthrow the words of a document which solely embodies the transaction.' (Id., pp. 229-230.) The exclusion of such oral declarations is particularly enforced when their effect would be to make the hearer the repository of the declarant's testamentary program instead of having it expressed in the writing which is essential to a valid will. (Matter of Powers' Estate, supra; Matter of Salterini's Estate, 7 Misc.2d 497, 499, 164 N.Y.S.2d 584, 586.)

With respect to the revocation of Totten trusts, there appears to be no settled rule excluding oral declarations of revocation. On the contrary, oral revocations have been recognized in several cases. The source of the law on this subject, Matter of Totten, 179 N.Y. 112, 71 N.E. 748, 70 L.R.A. 711, did not discuss the ways in which revocation or disaffirmance could be manifested. It said merely: 'In case the depositor dies before the beneficiary with out revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor' (p. 126, 71 N.E. p. 752. Emphasis added). The Restatement discusses revocation by withdrawal of the money on deposit, by death of the beneficiary during the depositor's lifetime, by express or implied disaffirmance in the depositor's will, and by act of committee of an incompetent depositor. In respect of the manifestation of intention to revoke, it says only that 'No particular formalities are necessary to manifest such an intention.' (Restatement of Trusts, 2d, § 58, Comment [c].) Professor, Scott states the rule to be that 'the trust is revoked by any words or conduct on the part of the depositor indicating an intention to revoke it.' (1 Scott on Trusts, 2nd ed., § 58.4, p. 492.) Thus there is nothing specific in any of these authorities on the matter of oral declarations of disaffirmance, their admissibility or their probative value.

In Re Rodgers' Estate, 374 Pa. 246, 97 A.2d 789, 38 A.L.R.2d 1238, the Supreme Court of Pennsylvania decided that the depositor had accomplished the revocation of the tentative trust in two distinct ways: first, by her declarations of disaffirmance and, secondly, by the provisions of her will which could not reasonably be effectuated without resort to the trust account. With respect to the declarations, the court said (p. 251, 97 A.2d p. 791): '[The scrivener] was permitted to testify to his conversations with the testatrix leading to the preparation of her will. This testimony was admitted over the objection of the appellants, who contended that the will was clear and unambiguous and not subject to oral explanation. We agree with this contention of appellants and would exclude the testimony if it were offered only as explanation of the will. * * * But, as above stated, the creator of a tentative trust has power to revoke it by oral declarations, and the testimony of testatrix's attorney was clearly admissible to show her intention that the trust be revoked, entirly apart from any question of interpretation of the written will.' In the discussion of the evidence, however, the court did not disclose any clear and direct declaration of disaffirmance. The attorney stated that he had suggested the creation of a testamentary trust, with authority for invasion of corpus, for the support and maintenance of Miss Rodgers' sister, who was infirm, mentally and physically. The testatrix (p. 252, 97 A.2d p. 792) 'described the property which would be the subject of this trust' including in her recital the statement, 'my money is on deposit at the Beneficial Saving Fund Society.' That is the deposit which was the tentative trust in question. Quite independently of that basis of decision, the court also ruled that the testamentary scheme of the will, under which her other assets would have been wholly inadequate, manifested an unequivocal intent to revoke the tentative trust. The one sister was beneficiary of both the bank account and the trust created by will.

In Walsh v. Emigrant Industrial Savings Bank, 106 Misc. 628, 176 N.Y.S. 418, affd. 192 App.Div. 908, 182 N.Y.S. 956, affd. 233 N.Y. 512, 135 N.E. 897, there were acts and declarations of the decedent, at and after the execution of her will, which were held to be competent evidence of disaffirmance. But here, too, quite independently of the acts and declarations, the court held that 'in order to carry out the provisions [of the will] it is essential to include in the assets of the estate the $3,000 in the disputed bank account.' (pp. 630-631, 171 N.Y.S. p. 420).

Matter of Richardson's Estate, 134 Misc. 174, 176, 235 N.Y.S. 747, 749, also involved a will and declarations of...