132 Misc. 319 | N.Y. Sur. Ct. | 1928
In this accounting proceeding brought by Adele Slattery and Warner M. Westervelt, as executors and trustees of the estate, a question of construction arises. It is claimed that the will violates the provisions of section 17 of the Decedent Estate Law (as amd. by Laws of 1927, chap. 502) because by its terms more than one-half of the estate was left to charity. With the exception of a small annuity to an aunt of the deceased, the entire estate was given to the trustees in trust for the life of the widow with directions upon her death to transfer and pay over the remainder to the New York Public Library, Astor, Lenox and Tilden Foundations. The latter corporation urges an immediate construction to the effect that the will is valid, that a computation of the value of the life estate to the widow, based upon her expectancy of life, establishes that section 17 of the Decedent Estate Law was not violated. The heirs and next of kin urge that there is no present need for construction. They ask for a postponement of interpretation until the termination of the life estate and the falling in of the trust remainder. They argue to the effect that the recent decision of the Court of Appeals in Matter of Seymour (239 N. Y. 259, modifying and affg. 209 App. Div. 655) has modified its previous decisions and established a rule that the actual
The value of the total estate of the decedent is to be fixed as of the date of death, under the provisions of the statute, and from this is to be deducted the amount of the debts only. One-half, and not more, of this sum may vest in the charity. The rule as to the employment of expectancy in the valuation of the life estate has been repeatedly enunciated. (Hollis v. Drew Theological Seminary, 95 N. Y. 166; Matter of Durand, 194 id. 477; Matter of Shiman, 130 Misc. 716.) In certain cases involving special circumstances, the actual duration of life of the life tenant has been taken. Thus in my decision in Matter of Blumenthal (124 Misc. 850), which was an extreme case, the life tenant survived the testator by only a few days, and the fact of the life tenant’s death had been established before the will was even admitted to probate. In Matter of Seymour (supra) the Court of Appeals affirmed the acceptance by the Appellate Division of actual duration of life as the measure of the life estate. There is no discussion of that particular question in the opinion of the Court of Appeals. But in that case the life tenant lived approximately two years and nine months
There is much force in the argument of counsel for the heirs that there should be one uniform standard of computation in every estate and that the test should be the actual duration of life. Injustice is bound to occur where actual life may be accepted in certain cases, and the annuity tables in others. Such conflicting methods are bound to lead to discrimination against the heirs and next of kin or favoritism to the charity. Moreover, the inconsistency will inevitably lead to skirmishing for position by either side. In the case of an imminent death of the life tenant, a trustee friendly to the heirs, or the heirs themselves, may delay the request for construction until death occurs. Whereas the charity, contending for the rule of computation by the annuity tables, will in every case seek a hurried determination in its favor. In the case of the early death of the life tenant at a time short of the period of expectancy, the heirs may well argue that in fact the statute is violated and that contrary to its terms the charitable remaindermen will receive more than one-half of the estate. But the wisdom of the establishment of one uniform rule applying to all cases rests with the Legislature or with the Court of Appeals. In the absence of a clear enunciation of a change of policy by the latter, the decisions cited above in Hollis v. Drew Theological Seminary (95 N. Y. 166) and Matter of Durand (194 id. 477) must be deemed to lay down the rule to be followed. The surrogate in this case will, therefore, adopt a computation based upon the expectancy of life of the widow and hold that the terms of the will do not violate the provisions of section 17 of the Decedent Estate Law.
Submit decree settling the account and construing the will accordingly. The decree may contain a provision allowing the personal claim of the executrix to the securities set forth in Schedule G of the account, which I hold are her individual property and not assets of the estate.