Summary
In Matter of Katz (49 N.Y.S.2d 604) Surrogate GRIFFITHS of Westchester County wrote upon an application for a new hearing in a judicial settlement proceeding.
Summary of this case from Matter of Van DeusenOpinion
June 13, 1944.
Proceedings in the matter of the final judicial settlement of the account of proceedings of Ivan Leib and Ernest L. Laton, as executors of the last will and testament of Louis Katz, deceased.
Decree in accordance with opinion.
See also ___ Misc. ___, 47 N.Y.S.2d 753.
Philip J. Maron, of New York City (J. David Delman, of New York City, of counsel), for petitioners.
Francis A. McAnaney, of the Office of the Alien Property Custodian, of Yonkers, for Selma Hirsch, Albert Hirsch, Rosalie Berney, and Felix Berney, legatees.
Frederick W. McGowan, of New York City, for National Surety Corporation.
Following the decision rendered in this accounting proceeding and prior to the entry of a decree thereon, upon the application of the executors the Court granted an application for a new hearing. Upon the rehearing evidence was offered to establish that the estate had not vested in four beneficiaries under the will who are nationals of Germany, the executors asserting that certain provisions of the will constitute a condition precedent to such vesting and should have been so construed. In its prior decision dated November 26, 1943 (Matter of Katz, 45 N.Y.S.2d 132, not otherwise reported), this Court held that, excluding certain specific bequests, a gift of the remaining assets disposed of by the will equally among a nephew and three named nieces of testator was chargeable with the payment of annuities to each of four named German nationals who presumably are still in Germany or in enemy occupied territory. The Court therein directed the payment of such annuities aggregating $240 monthly to the Alien Property Custodian, upon the filing of a vesting order. Such decision, insofar as it determined that the provisions for such monthly payments did not create a trust or a power in trust, but rather an annuity in favor of such nationals, is not now questioned. The executors request, however, that, pending final disposition of the issues, they be permitted to retain possession of this fund until further order of the Court. The Alien Property Custodian opposes the application and the construction requested, contending that the annuities have vested indefeasibly in the annuitants, and stating that upon the rendering of a determination to that effect an order will be filed vesting the interests of the annuitants.
[1-3] The testimony of the witness who is a legatee was barred by Section 347 of the Civil Practice Act, and the objection was available in behalf of the annuitants. Section 347 may be invoked by one who represents the decedent or in behalf of one who derives his interest from decedent by assignment or otherwise. Witthaus v. Schack, 105 N.Y. 332, 11 N.E. 649. The objection to such testimony, insofar as it relates to personal transactions and communications with decedent, is accordingly sustained, and such testimony has been excluded in the consideration of the issues presented. The statute not only prohibits conversations with decedent but extends to the testimony relating to letters addressed to others alleged to have been shown to decedent. A personal transaction or communication includes every method by which a person can derive impressions or information from the conduct, condition or language of another. Holcomb v. Holcomb, 95 N.Y. 316. Although the other person who testified was not a disinterested witness, since his wife was interested in the event, his testimony as to personal communications and transactions with decedent was not thereby rendered incompetent. Such interest would affect the weight but not the admissibility of his testimony. Tracy v. Danzinger, 253 App..Div. 418, 3 N.Y.S.2d 24, affirmed 279 N.Y. 679, 18 N.E.2d 311.
A determination of the issues requires a consideration of certain provisions of the will, which, insofar as they are here pertinent, read as follows:
"The heirs to the extent of 25% each are the following:
"(1) My niece Irene Laton nee Katz.
"(2) My niece Florence Katz.
"(3) My niece Carrie Barme nee Hirsch.
"(4) My nephew Alfred Barney.
"For the time being, the income and capital shall be at the disposal of my two sisters and their husbands as follows:
"Selma Hirsch and her husband, Albert Hirsch.
"Rosalie Berney and her husband, Felix Berney.
"I ask my friend, Ivan Leib, jointly with my nephew Ernst Laton, to furnish a joint home for both families at the expense of the inheritance account (estate) and then they shall receive, per person and month, the amount of $60, namely a total of $240 per month. All expenses of Mr. Ivan Leib and Ernst Laton in connection with trips and all inheritance matters are to be paid from the inheritance account (estate) by mutual agreement. After the death of the last of the two families, the payment is to be made as mentioned above."
The foregoing provisions must be construed, however, in the light of the following relevant circumstances: The decedent was a native of Germany, who arrived in the United States in November 1940, where he resided to the time of his death. For three or four years prior to his immigration to this country, he had been living in Switzerland. The will is holographic, written in the German language, and was executed on May 18, 1941. He died on August 28, 1941, survived by two sisters and by two nephews and three nieces as his only distributees, The sisters of decedent and their respective husbands were of Jewish origin. It appears that when last heard from they were substantial business people and owned their own homes in Germany. That the testator saw fit to make provision for the support and maintenance of such annuitants amply demonstrates his concern for their future financial security and welfare. A letter written to the decedent on April 25, 1941, shortly before the execution of the will, indicates that arrangements were then in progress for the passage of such annuitants from Lisbon. In view of the political and economic conditions which prevailed in Germany at that time, it would be unreasonable to assume that the testator contemplated either the establishment of a new or additional home for such annuitants or the sending of any moneys to that country for their support. Such an assumption would impute to the testator not only an intent to accomplish an impractical purpose but one not legally capable of fulfillment.
[4-6] In the prior decision it was concluded that the annuity was a charge upon the gifts in favor of the named nephew and nieces of testator. Where there is no language disclosing an intent that the gift is to be dependent upon the performance of the conditions, the language will be held to import a covenant therein. Graves v. Deterling, 120 N.Y. 447, 24 N.E. 655. An examination of the will discloses no disposition contemplating, or consequent upon, such result. There is no provision for a forfeiture or from which it might be inferred that the estate was dependent upon the performance of a condition. In such a case the payment of an annuity becomes the personal covenant of the donees of the property. Cunningham v. Parker, 146 N.Y. 29, 40 N.E. 635, 48 Am.St.Rep. 765; Matter of Sneden's Estate, 154 Misc. 49, 276 N.Y. S. 441. The testator did not provide in the usual legal phraseology that such annuities should be chargeable against the fund bequeathed to the nephew and nieces. Clearly, however, such is the import of the language employed, since he directed that the home should be furnished at the expense of the estate. It must be concluded that this was the intended result for the additional reason that, excluding the specific bequests, there remained no other assets from which such annuities might be paid. There being no proof to the contrary, there is a presumption of fact that the annuitants are living. Young v. Shulenberg, 165 N.Y. 385, 59 N.E. 135, 80 Am.St.Rep. 730. The Court accordingly determines that the assets not otherwise specifically bequeathed vested equally in the named nephew and in each of the three named nieces of the decedent, but are chargeable however with the expense of furnishing such home and the payment of said annuities. Brown v. Knapp, 79 N.Y. 136.
[7, 8] The Court further determines that it was intended that payment of such annuities be postponed until a home might be furnished for such annuitants, in accordance with the provisions of the will. The rule that annuities are ordinarily payable from the death of the testator must yield to provisions in the will importing payment at some later date. Kearney v. Cruikshank, 117 N.Y. 95, 22 N.E. 580. The directions that for the time being the income and capital shall be at the disposal of decedent's sisters and their husbands must be read in connection with the provisions which follow relating to the payment of the annuities. The testator clearly contemplated that the home be established in a country other than his native land and in one where the property of the annuitants would not be subject to confiscation even under color of governmental authority. The recital in the will of a deposit of $2650 for the immigration to Cuba of one sister and her husband is not inconsistent with a desire to assist in finding a haven for his relatives in the land where earlier he had found refuge.
The fund is presently payable to the legatees, who by acceptance become personally obligated to pay the annuities. Cunningham v. Parker, 146 N.Y. 29, 40 N.E. 635, 48 Am.St.Rep. 765; Collister v. Fassitt, 163 N.Y. 281, 57 N.E. 490, 79 Am.St.Rep. 586; Matter of Sneden's Estate, supra. Adopting the practice outlined in Matter of Watson, 242 App.Div. 723, 273 N.Y.S. 426, and Matter of Sneden's Estate, supra, the Court will require the furnishing of a duly approved bond by the legatees in a sum related to the respective life expectancies of the annuitants. Upon the filing of such bond, the legacies may be paid to the nephew and three nieces of testator.
It cannot now be determined whether such annuities will become payable. There is therefore no need to determine whether payment thereof may then be made to the annuitants or must be made to the Alien Property Custodian. No vesting order has been filed by the Alien Property Custodian, and it is conceivable that the occasion will never arise whereby such annuities become payable.
Settle decree accordingly.