Wise's Estate, In re
| Decision Date | 09 October 1962 |
| Citation | 235 N.Y.S.2d 633,37 Misc.2d 403 |
| Parties | In re ESTATE of Herbert A. WISE. Surrogate's Court, New York County |
| Court | New York Surrogate Court |
Jaffa & Silverman, New York City (Horace S. Manges, John M. Lewis and Philip T. Temple, New York City, of counsel), for Lyman Stansky, petitioner.
Weil, Gotshal & Manges, New York City (David I. Silverman, New York City, of counsel), for Bennett A. Cerf, petitioner. Kaye, Scholer, Fierman, Hays & Handler, New York City (Samuel I. Bazil and Gerald Moss, New York City, of counsel), for Sue Bayer, Fred Wise and Walter Wise, respondents.
Root, Barrett, Cohen, Knapp & Smith, New York City, for Glen Boles, respondent.
Ludwig Teller, New York City, special guardian for Christopher Cerf and Jonathan Cerf, infants, respondents.
JOSEPH A. COX, Surrogate.
This is a proceeding instituted solely for the purpose of obtaining a construction of the will (cf. Matter of Mills, 272 App.Div. 229, 234 et seq., 70 N.Y.S.2d 746, 750). The testator left all of his personal effects to a friend and directed the division of his residuary estate into two equal parts. The first of these, described as Part A, he divided into fifty shares which were left to designated individuals in specified multiples. The second, Part B, he divided into three shares, two of which were left out-right to the legatee who had been named to take the personal effects while the third was left in trust for the benefit of two grandnephews of the testator for their respective lives with a provision for the payment of one-half of the principal to each of the beneficiaries upon the attainment of majority.
In the early portion of his will, immediately after the bequest of personal effects, the testator made the following direction with respect to estate taxes:
The dispositions of residuary Part A are contained in paragraphs 3 through 12 of the will and there then appears the following further direction with regard to estate taxes:
The executors, one of whom is the trustee of the trust for the infant beneficiaries, seek instructions concerning the manner and source of payment of the estate taxes due to the federal government and the State of New York. They insist that the directions contained in paragraph 13, quoted above, did not constitute a stipulation against apportionment of the taxes attributable to the various legacies directed to be paid from Part A of the residuary estate. They contend that the controlling direction is found in paragraph 2 of the will in the instructions to pay, or to set aside a fund sufficient to pay, all estate taxes prior to the execution of the remaining provisions of the will. Certain of the legatees entitled to payment from residuary Part A argue that all estate taxes must be charged exclusively and in their entirety to Part B of the residuary estate because of the explicit mandate in paragraph 13 directing that 'all inheritance taxes payable by each of the legatees heretofore named shall be paid out of Part B.'
A reading of the quoted taxt of the will reveals that the only direction by the testator as to the source of payment, as distinguished from the time for payment, of the taxes is to be found in paragraph 13. In paragraph 2 the testator did no more than to give voice to a variation of the stereotyped testamentary direction to executors for the payment of taxes, debts and the expenses of administration. That direction did not indicate the fund with which the payment of taxes was to be charged nor did it constitute a stipulation against apportionment. Paragraph 13 on the other hand sets...
To continue reading
Request your trial
-
Hall v. Johnson
...Estate, 307 N.Y. 242, 120 N.E.2d 807 (1954); In re Mills' Estate, 272 App.Div. 229, 70 N.Y.S.2d 746 (1947); In re Estate of Wise, 37 Misc.2d 403, 235 N.Y.S.2d 633 (1962); In re Estate of Cutler, 26 Misc.2d 804, 209 N.Y.S.2d 358 (1960); In re Myers' Trust, 20 Misc.2d 990, 190 N.Y.S.2d 566 (1......
-
Kindermann's Will, In re
...67 N.Y.S.2d 324 [not officially reported]; Matter of Taylor, Sur., 116 N.Y.S.2d 314 [not officially reported]; Matter of Wise, 37 Misc.2d 403, 405, 235 N.Y.S.2d 633, 635, modified on other grounds 20 A.D.2d 55, 244 N.Y.S.2d 960, aff'd 15 N.Y.2d 591, 255 N.Y.S.2d 259, 203 N.E.2d As was state......
-
Von Echt's Estate, In re
...surrounding the execution of the will is inadmissible (Matter of Braun's Estate, 36 Misc.2d 692, 233 N.Y.S.2d 398; Matter of Wise's Estate, 37 Misc.2d 403, 235 N.Y.S.2d 633). Even if the proffered evidence were admissible, there is nothing contained therein which would change the language u......
-
Wise's Will, In re
...the testator bequeathed in three parts Part B to be established by his executors under paragraph 3. The Surrogate held, 37 Misc.2d 403, 404, 235 N.Y.S.2d 633, 634, that paragraph 2 was 'no more than * * * the stereotyped testamentary direction to executors for the payment of taxes, debts an......