23 Misc. 2d 565 | N.Y. Sur. Ct. | 1960
In this proceeding for the judicial settlement of the account of trustees, respondent David Wolcott was cited because of his status as a legatee under the will ,of a
The testator died in February, 1948. His distributees were his widow, two children of his predeceased brother Waldo and two children of his predeceased sister Julia. Testator’s sister Julia and her son Charles had died prior to the execution of the testator’s will. The respondent David Wolcott is the adopted child of the testator’s deceased nephew Charles Wolcott. The testator’s will, executed in 1942, provided a trust of one half of his residuary estate for the benefit of his widow and upon her death for the benefit of his children. The will provided that, if there were no child, one half of the principal of this trust be held for the benefit of a named niece and the remaining one half of the principal be held in trust for the benefit of another named niece with the remainder of each trust payable to the particular income beneficiary’s heirs at law and next of kin. The remaining one half of the residuary estate was bequeathed in four separate trusts for the benefit of the three nieces and the nephew who were distributees of the testator. The remainder of each of these trusts was bequeathed to the respective beneficiary’s heirs at law and next of kin. The respondent David Wolcott was not mentioned in the will.
Prior to the institution of the probate proceeding the nominated executor provided Wolcott with a copy of the purported will and requested him to execute a waiver of citation and a consent to the probate. When such documents were not forthcoming the nominated executor filed a petition for probate, which contained no reference to Wolcott, and a decree admitting the will to probate was made on March 3, 1948. Wolcott, upon being informed as to the contents of the propounded instrument, had sought legal advice of two firms of attorneys and had been advised that, lacking a status either as a distributee of the decedent or as a beneficiary under an earlier testamentary instrument, he was not in a position to attack the will. In April, 1948 discussions were had between Wolcott’s then attorney and the attorney for the executor and it annears that at such times neither of the attorneys regarded Wolcott as having a status to attack the probate or as a beneficiary under the will. In the negotiations Wolcott’s attorney presented the matter upon a
The negotiations resulted in a payment to Wolcott of $75,000, in the form of corporate stock paying ah 8% preferred dividend, and the execution by Wolcott of the instruments constituting the release now in question. The corporate stock was contributed by individuals interested under the will and the, instruments of release ran to them as well as to the estate. It is of special significance that the form of release initially prepared by Wolcott’s attorney and executed by Wolcott was rejected. A revised release, prepared by Wolcott’s attorney, was later executed together with a form of agreement. _ The agreement again was revised and executed by Wolcott. The commitment ultimately made by Wolcott was that he would not contest the probate or endeavor to vacate it and that he would not 1 ‘ assert any claim of any kind to or against said estate, or any trust or other fund under said will, or any remainder interest therein, vested or contingent, or against any beneficiary.” Wolcott testified that at the time the final agreement was submitted to bim he grumbled because of its comprehensive character and discussed this with his attorney prior to the paper’s execution.
The situation is one where a person, a graduate of a law school and represented by an attorney of recognized ability, was advised as to his legal position, was made fully aware of the size of the estate, was a party to extended negotiations, accepted a settlement and, in the consummation thereof, executed documents which admittedly he read and understood. There is no evidence of fraud or mistake. A determination that under these circumstances any basis exists for finding a release ineffectual or subject to rescission would be a repudiation of the established fact that a person may give up or abandon a claim or legal right for a consideration.
The objectant, as the adopted child of the testator’s deceased nephew, was not a distributee of the testator (Domestic Relations Law, § 115; Matter of Hodges, 294 N. Y. 58; Hopkins v. Hopkins, 202 App. Div. 606, affd. 236 N. Y. 545; Carpenter v. Buffalo Gen. Elec. Co., 213 N. Y. 101; Matter of Upjohn, 304 N. Y. 366; Matter of Meyer, 204 Misc. 265, affd. 282 App. Div. §60; Rosekrans v. Rosekrans, 163 App. Div. 730) and any status he would have to contest an instrument propounded as a will
Accordingly, it is held that the release agreement is a bar to the objections and the objections are dismissed (Lucio v. Curran, 2 N Y 2d 157; Matter of Cohen, 12 Misc 2d 784, affd. 6 A D 2d 1033).
The facts which establish the validity of the release agreement negate the claim for its rescission. Furthermore, the claim for that relief is barred by the Statute of Limitations (Civ. Prae. Act, § 53; Nusbaum v. Nusbaum, 280 App. Div. 315; Buttles v. Smith, 281 N. Y. 226; Kendall v. Oakland Golf Club, 282 App. Div. 1057, affd. 307 N. Y. 753). Submit decree on notice.