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Christatos' Estate, In re

Surrogate's Court, New York County

April 26, 1955

Christatos' Estate, In re

Page 766

Frederick H. Koschwitz, New York City, for the Robert K. Christatos, Brynolf W. Fahlander and Herbert E. Warnk, executors, petitioners.

Louis W. Arnold, Jr., New York City, for Robert K. Christatos and Brynolf W. Fahlander, individually, respondents.

Marion P. Thompson, New York City, for Genevieve T. Christatos, General Guardian of Maurice Christatos 3rd and Aline Christatos, respondents.

William A. Hermann, New York City, for Marie B. Schmittner, general guardian of Elizabeth D. Christatos and Roberta M. Christatos, respondents.

FRANKENTHALER, Surrogate.

Decedent's will bequeathed the capital stock of a corporation wholly owned by him, to one of the accounting executors. The executors' account recognizes that this corporation was indebted to decedent

Page 767

but the account fails to charge interest upon the debt and objection to this omission is made by the general guardian of residuary legatees. The absence of an express agreement to pay interest, the circumstances of the advances and the relationship between decedent and his corporation establish that fact that interest on the obligation was not payable during decedent's lifetime but such fact does not bar recovery of interest, as damages, from the date of his death, when the debt became due. See Restatement of Contracts, § 337; Pryor v. City of Buffalo, 197 N.Y. 123, 142-143, 90 N.E. 423, 429; Matter of Ittleman, 286 N.Y. 150, 153, 36 N.E.2d 89, 90; Matter of City of New York, 288 N.Y. 51, 56-57, 41 N.E.2d 454, 456-457; Melzer v. Zimmerman, 118 Misc. 407, 409-410, 194 N.Y.S. 222, 224-225, affirmed 205 A.D. 886, 198 N.Y.S. 932. The objection to the failure to account for interest at the legal rate from the date of decedent's death is sustained, Matter of Myers, 131 N.Y. 409, 30 N.E. 135; Matter of Cole's Estate, 85 Misc. 630, 148 N.Y.S. 1099; Civil Practice Act, § 480, and the executors are surcharged to the extent that the interests represented by the objectant are affected by such non-payment. Matter of Stumpp's Estate, 153 Misc. 92, 100-101, 274 N.Y.S. 466, 474-476; In re Rosenbaum's Estate, Sur., 76 N.Y.S.2d 715.

The court finds that the salaries paid to the executors in their capacities as employees of the estate business were reasonable payments for the services rendered. The objection of the general guardian to such payments is dismissed.

The third objection of the general guardian is sustained. If benefit resulted to the general estate from the liquidation of the accounts receivable, the services in that connection were within the executorial duties of the accountants.

The fees paid for accounting and legal services are held to be reasonable in amount and the objection to such payments is dismissed.

The proof at the hearing did not support the contention made in the fifth objection of the general guardian and that objection is dismissed. Her sixth objection involves the construction question that is later considered and her seventh objection was withdrawn at the hearing.

The gross value of the estate exceeds one hundred thousand dollars and, consequently, the executors are entitled to three full commissions, Surrogate's Court Act, § 285, subd. 8. The value of the assets bequeathed in article Seventh of the will is properly includible in computing such gross value since, if such bequest be construed as a specific legacy, testator's directions as to said assets imposed special duties upon his executors. Matter of Berwind's Estate, 181 Misc. 559, 42 N.Y.S.2d 58; Matter of Marshall's Estate, 199 Misc. 431, 100 N.Y.S.2d 996. The failure of the executors, however, to report the full amount of commissions in the estate tax returns requires that the interests represented

Page 768

by the objectant be computed as if such deduction had not been omitted. To such extent the general guardian's objection to the supplemental account is sustained.

The objections interposed on behalf of decedent's nieces are dismissed. The proof was that decedent validly purchased certain shares of corporate stock from his now deceased brother in accordance with a preexisting agreement between them. It was not proved that in connection with such purchase decedent assumed any obligation to care or provide for his nieces.

In the Seventh article of decedent's will he directed that the assets of his business conducted at a designated address be transferred to a corporation to be formed by his executors and he bequeathed half of the capital stock of such corporation to his son and the remaining shares to his nephew. Paragraph (e) of that article of the will provides: 'Without derogation from the absolute character of the foregoing bequests, I request merely that there shall be paid to each of my grandchildren' stated weekly sums during their minorities. In the Eighth article of his will decedent bequeathed other corporate stock to his son which substitutionary gifts to others, and then provided in paragraph (c): 'Without derogation from the absolute character of the foregoing bequest, I request merely that the persons acquiring said business' case the corporation to pay weekly sums to the children of testator's deceased brother.

The contention is made that paragraphs Seventh (e) and Eighth (c) of the will impose mandatory conditions upon the immediately preceding bequests. There can be no doubt that decedent intended to impose a moral obligation upon his legatees but it is equally apparent that he chose his language with deliberate intent to avoid the imposition of any legally enforceable obligation upon the legatees. Though the provisions in the above paragraphs are definite as to amount and subject matter, that is not determinative of the issue of enforceability. See Post v. Moore, 181 N.Y. 15, 73 N.E. 482; Matter of Burch's Estate, 152 Misc. 387, 274 N.Y.S. 123, affirmed 243 A.D. 663, 276 N.Y.S. 993; Matter of Friedman's Estate, 163 Misc. 494, 290 N.Y.S. 169. It is well settled that an absolute bequest, such as is contained in testator's will, is not diminished by subsequent language that constitutes a less imperative direction than that which confers the gift, Tillman v. Ogren, 227 N.Y. 495, 125 N.E. 821; Matter of Barney's Will, 207 A.D. 25, 201 N.Y.S. 647, affirmed 239 N.Y. 584, 147 N.E. 205; Banzer v. Banzer, 156 N.Y. 429, 51 N.E. 291; Goodwin v. Coddington, 154 N.Y. 283, 48 N.E. 729. Here testator plainly stated his intention by prefacing his references to his grandchildren and his nieces with the caveat that this later language was 'Without derogation from the absolute character' of the bequests and by emphasizing the precatory nature of his suggestions by the expression 'I request merely'. In view of these

Page 769

obvious efforts by testator to avoid mandatory language it is unnecessary to contrast this language with that found in other parts of the will but, were such comparison needed, it appears in paragraph (d) of the Seventh article where the ability of the testamentary draftsman to express a mandatory condition is illustrated. There testator made bequests 'upon, and subject to, the express condition' that a fixed sum be paid to the legatee's wife. The court holds that the provisions of articles Seventh (e) and Eighth (c) are wholly precatory and do not create legally enforceable conditions. The fulfillment of these testamentary provisions is dependent upon the moral sensibilities of the legatees. Matter of Hayes' Will, 263 N.Y. 219, 188 N.E. 716; Post of Moore, supra; Matter of Endell's Estate, 192 Misc. 503, 80 N.Y.S.2d 889, affirmed 275 A.D. 1029, 91 N.Y.S.2d 837; Matter of Dieudonne's Estate, 186 Misc. 642, 53 N.Y.S.2d 56.

Submit decree on notice settling the account accordingly.


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