24 A.D.2d 479 | N.Y. App. Div. | 1965
In a proceeding to judicially settle the account of the executors of a decedent’s estate, in which Olive Jennison, a legatee-devisee, filed certain objections to the account, by reason of which the will was required to be judicially construed, Mildred Jaret and Herman B. Forman, as executors, and the said Forman and Viola Rabke, individually as legatees, appeal from a decree of the Surrogate’s Court, Kings County, entered October 21, 1964 upon the court’s opinion and decision, which sustained such objections and which construed the will so as to exonerate from the burden of all estate taxes those beneficiaries of gifts made under the provisions of the will prior to Article “ Ninth.” Decree affirmed upon the opinion of the learned Surrogate (44 Misc 2d 262), with costs to all parties filing separate briefs, payable out of the estate. Ughetta, Acting P. J., Christ and Hill, JJ., concur; Rabin and Benjamin, JJ., dissent and vote to reverse the decree, with the following memorandum: The central issue involved here is whether the decedent’s will contained a clear and unambiguous direction with regard to the apportionment of taxes. Article “First” of the will, dated June 24, 1954, provided for the payment of debts and funeral expenses. Article “ Second ” made certain bequests of personal effects to the widow. In Article “ Third ”, testator created a marital trust for his widow to the extent of the maximum marital deduction. The “ Fourth ” Article of the will provided that all taxes assessed by reason of the testator’s death “shall be paid by my Executor out of the residue after all of the foregoing provisions of this Will have been satisfied”. Article “Fifth” of the will provided that “The rest, residue and remainder of my estate * * * shall be disposed of in the manner set forth in the following articles.” The following Articles “ Sixth ”, “ Seventh ” and “ Eighth ” contained specific bequests. Article “ Ninth ” divided the “ balance of my estate then remaining ” into seven equal parts. Thereafter, the testator executed three codicils to the will. Their net effect was to eliminate the specific bequest in Article “ Seventh ”; divide the balance of the estate under Article “Ninth” into three equal parts; and change the marital trust created by Article “ Third ” into an outright gift. In altering the nature of the marital gift, the third codicil directed, inter alia, that: “The bequest of one-half of my estate to my beloved wife shall be calculated before Federal and State inheritance and estate taxes, it being my intention that such taxes pursuant to Article ‘Fourth’ of my Will shall be paid out of the balance of my estate.” The Surrogate sustained objections by a beneficiary under Articles “ Sixth ” and “ Ninth ” to the final account of proceedings. The will and codicils were construed to have mandated the payment of taxes out of the “ true residuary of the estate under Article Ninth rather than the artificial residuary clause set forth in Article Fifth.” The specific legacy given to the objectant by Article “ Sixth” was thereby exonerated from any tax burden. The will’s Article “ Fourth ”, by directing the payment of estate taxes out of the residue after the satisfaction of the first three articles; and the will’s Article “Fifth”, which refers to the bequests then following as the “rest, residue and remainder of my estate”, both evince a testamentary