Opinion
April 7, 1959
Hugo Pollock, Meyer Stein and Samuel Levine for George Strell and another, petitioners.
Francis W. Doheny, as special guardian for Robert S. Bleier, an infant, respondent.
In this proceeding under section 145-a of the Surrogate's Court Act for determination of the validity of the exercise by decedent's widow of her right of election to take her intestate share of the estate, the court is called upon to determine the effect of the following provisions of the will:
THIRD: I give, devise and bequeath to my wife, SYLVIA BLEIER, the sum of FIVE THOUSAND ($5,000.00) DOLLARS.
FIFTH: I give, devise and bequeath to my wife, SYLVIA BLEIER, all household goods, furniture, glassware, silverware, china, wearing apparel, and articles for personal use or ornament, jewelry, and all other articles of personal property belonging to my household.
SIXTH: All the rest, residue and remainder of my property, whether real, personal or mixed, of which I may die seized or possessed, or to which I may in any manner be entitled at the time of my death, I give, devise and bequeath to my trustees hereinafter named, in trust, nevertheless, to and for the purposes following:
1. To take possession of, hold, invest and reinvest the same, and to collect the income thereof, and after paying all expenses incident thereto, to pay out of the said net income thereof, the sum of ONE HUNDRED AND FIFTY ($150.00) DOLLARS, weekly, to my wife, SYLVIA BLEIER, for the support of herself and my son, ROBERT S. BLEIER, until my son arrives at the age of twenty-two years, subject, also, to the following terms and conditions:
2. Should my wife remarry at any time before my son arrives at the age of twenty-two years, I direct my Trustees to pay her, out of the income aforementioned, the sum of SEVENTY-FIVE ($75.00) DOLLARS, weekly, and to my son, ROBERT the sum of SEVENTY-FIVE ($75.00) DOLLARS, weekly, until my son arrives at the age of twenty-two years.
3. Upon my son arriving at the age of twenty-two years, and provided my wife has not remarried, I direct my trustees to pay to my wife, out of the income aforementioned, the sum of ONE HUNDRED ($100.00) DOLLARS, weekly, and to my son ROBERT, the sum of FIFTY ($50.00) DOLLARS, weekly, until my son shall arrive at the age of thirty years. Should my wife remarry after my son arrives at the age of twenty-two years, and before he reaches thirty years of age, then I direct my trustees to pay to my wife, out of the income aforementioned, the sum of SEVENTY-FIVE ($75.00) DOLLARS per week and to my son, ROBERT, the sum of SEVENTY-FIVE ($75.00) DOLLARS per week, until my son shall arrive at the age of thirty years.
4. In the event that my wife should die at any time prior to my son arriving at the age of thirty years, I direct that my trustees pay to my son the entire income of the trust fund aforementioned, until he shall arrive at the age of thirty years, at which time, and in which event, I give, devise and bequeath to my son the entire corpus of the said trust fund.
5. Upon my son arriving at the age of thirty years, and should my wife be still living, I give, devise and bequeath to him, one-half of the principal of the aforementioned trust fund.
6. After my son arrives at the age of thirty years, I direct my trustees to pay to my wife, out of the income aforementioned, the sum of ONE HUNDRED ($100.00) DOLLARS, per week, provided she has not remarried, and SEVENTY-FIVE ($75.00) DOLLARS per week, during the remainder of her life, if she has remarried, but no further income shall be paid to my son.
4. It is no defense that defendant did not know the materiality of the statements, or that the statements did not in fact affect the proceeding in or for which they were made.
APPEAL from an order of the County Court of Erie County (JACOB A. LATONA, J.), entered January 15, 1963, which dismissed an indictment charging defendant with the crime of perjury in the first degree.
George R. Blair, District Attorney ( Thomas Daley and Irma R. Thorn of counsel), for appellant.
Condon, Klocke, Ange, O'Donnell O'Brien ( John W. Condon, Jr. and Grace Marie Ange of counsel), for respondent.
BASTOW, J.
In March, 1962 a Grand Jury sitting in Erie County returned an indictment charging defendant in each of eight counts with the crime of perjury, first degree. After an order had been made on defendant's motion granting him an inspection of the Grand Jury minutes a further motion was made to dismiss the indictment. The motion was granted and the People appeal. In dismissing the indictment the court made no written or oral statement so we do not know by what reasoning the decision was reached.
Defendant owned certain realty in the City of Buffalo which he had purchased from his son-in-law, Frank Pusatier, for $10,000. No consideration passed except that defendant gave Pusatier a promissory note for $10,000. On June 13, 1961, Pusatier and another were apprehended inside of the building while attempting to start a fire. The building had been insured by defendant for $24,000. Pusatier was charged with the crime of attempted arson.
Subsequently, a Grand Jury commenced an investigation of the circumstances surrounding the attempt to burn the building. For some three months law-enforcement officials sought defendant to subpoena him before the Grand Jury. He finally appeared before that body in January, 1962 — some seven months after the claimed attempted arson.
Defendant testified that during the months of June, July and August, 1961 he was sojourning at the home of a friend in the Buffalo suburb of Angola. He read and knew at the time of the attempted burning of his building. He admitted journeying to the City of Buffalo to visit the home of his daughter. He persistently denied, however, that he was staying at his home. It thus becomes apparent from reading the Grand Jury minutes that the investigating body had certain definite targets including where defendant was on the 13th of June, asserted right of election, the son is now entitled to the entire net income and the contingent interest of the sister is to be regarded as extinguished in the same manner as if the widow's income interest had been terminated by her death ( Matter of Devine, 147 Misc. 273, 278). It is the feeling of the court that this conclusion effectuates the testamentary plan to the fullest extent permissible by preserving the testator's fundamental purpose to benefit his son.
The amount of the elective share is to be apportioned between the general legacy under the fourth article and the residuary trust created by the sixth article and the income of such diminished trust will be payable to the son until his arrival at the age prescribed by the testator for payment to him of the trust principal.
Submit decree on notice accordingly.