Wolcott v. Hutchins

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: Robert Emmet Connolley, New York City, for plaintiff
• Citation: 245 F. Supp. 578
• Parties: David WOLCOTT, Plaintiff, v. Waldo HUTCHINS, Jr., individually and as Executor of, and Trustee under, the Last Wills and Testaments of Augustus S. Hutchins and Mary Johnson Hutchins, Deceased, Chemical Bank & Trust Company and William J. Fagan, as Executors of, and Trustees under, the Last Will and Testament of Elizabeth Wolcott Hamilton (Jaeger), Deceased, Elizabeth Boswell and Lyman B. Lewis, as Executors of, and Trustees under, the Last Will and Testament of Margaret J. Hutchins, Deceased, Defendants.
• Decision Date: 14 September 1965

245 F. Supp. 578

David WOLCOTT, Plaintiff,
v.
Waldo HUTCHINS, Jr., individually and as Executor of, and Trustee under, the Last Wills and Testaments of Augustus S. Hutchins and Mary Johnson Hutchins, Deceased, Chemical Bank & Trust Company and William J. Fagan, as Executors of, and Trustees under, the Last Will and Testament of Elizabeth Wolcott Hamilton (Jaeger), Deceased, Elizabeth Boswell and Lyman B. Lewis, as Executors of, and Trustees under, the Last Will and Testament of Margaret J. Hutchins, Deceased, Defendants.

United States District Court S. D. New York.

September 14, 1965.

Robert Emmet Connolley, New York City, for plaintiff.

Rein, Mound & Cotton and Irving Smith, Jr., New York City, for defendant Waldo Hutchins, Jr.

Lark & Sullivan, New York City, for defendants Chemical Bank New York Trust Co. and William J. Fagan.

Lyman B. Lewis, Geneva, N. Y., pro se, for defendants Elizabeth Boswell and Lyman B. Lewis.

BONSAL, District Judge.

In the amended complaint in this diversity action plaintiff charges the defendant Waldo Hutchins, Jr. and other members of the family of the late Augustus S. Hutchins (Elizabeth Wolcott Hamilton and Margaret J. Hutchins, both of whom are deceased, the action being brought against their testamentary executors and trustees) with conspiring to defeat the plaintiff David Wolcott's inheritance under the will of the late Augustus S. Hutchins, and seeks damages

245 F. Supp. 579

from the defendants in the amount of $5,000,000

Defendant Waldo Hutchins, Jr., individually and in his representative capacity, has moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing the action on the ground that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. The other defendants have joined in defendant Hutchins' motion. In the alternative, defendants move that the action be transferred to the Surrogate's Court, New York County.

Plaintiff is the adopted son of the late Charles M. Wolcott, who was a nephew of the late Augustus S. Hutchins. Charles M. Wolcott predeceased his uncle, dying in August of 1942. The uncle, Augustus S. Hutchins, made a will in November 1942, and he died on February 19, 1948. Plaintiff was not mentioned in the 1942 will, nor is there any evidence that he was mentioned in any prior will made by Augustus S. Hutchins. The 1942 will was admitted to probate in the Surrogate's Court, New York County, and letters testamentary were issued on March 4, 1948, to the defendant Waldo Hutchins, Jr., the only executor qualifying thereunder. Letters of trusteeship under the will were issued on March 9, 1948, to the defendant Waldo Hutchins, Jr. and Royle R. Harrison (substituted trustee who died on January 8, 1956). The 1942 will, after providing for legacies and bequests, divided the estate into eight shares. Four shares were directed to be held in trust for the testator's widow, Mary Johnson Hutchins, and upon her death (which occurred on December 25, 1951) two of the shares were to be continued in trust for testator's niece Elizabeth Wolcott Hamilton during her life, and two shares were to be continued in trust for testator's niece Julia Hutchins Wolcott. Upon the death of the second life beneficiaries, the remainders were to go to their respective heirs at law and next of kin. The remaining four shares were directed to be held in trust, one share for the benefit of his niece Elizabeth Wolcott Hamilton during her life, one share for the benefit of his niece Julia Hutchins Wolcott during her life, one share for the benefit of his nephew Waldo Hutchins, Jr. during his life, and one share for the benefit of his niece Margaret J. Hutchins during her life, and upon the death of the respective life beneficiaries the remainder of the trust set apart for her or his benefit was to go to her or his respective heirs at law and next of kin.

While plaintiff was not cited in the probate proceedings as he was not believed to be a "distributee" entitled to notice of probate, it appears that he was notified of the proceeding and consulted with counsel as to his interest, if any, in the estate. According to the opinion of Surrogate Cox (In re Estate of Hutchins, 23 Misc.2d 565, 199 N.Y.S.2d 528 (1960)) hereinafter discussed, plaintiff consulted two firms of lawyers, who informed him that he had no interest in the estate, and he then consulted an attorney, who negotiated with the defendant Waldo Hutchins, Jr., the executor, for a settlement on plaintiff's behalf. In April, 1948, a settlement was reached under which plaintiff received 600 shares of Crum & Forster 8% Preferred Stock valued at $75,000., transferred to him by members of the family...