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KAMMHOLZ v. ALLEN

September 23, 1957

Gertrude (Gertrud, Trude) KAMMHOLZ, Ingeborg Kammholz, Plaintiffs.
v.
Donald ALLEN, Albert Hirst, Lester A. Kent, Defendants



The opinion of the court was delivered by: CASHIN

Plaintiffs move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The answering defendants (Lester A. Kent, pursuant to stipulation, is not yet required to answer) cross-move for summary judgment and also move for dismissal of the complaint for failure to state a claim upon which relief can be granted. Rule 12(b) of the Federal Rules of Civil Procedure.

The facts, as pleaded in the complaint, insofar as they are relevant to this decision, are as follows:

 Rudolf Lesch, an American citizen of German descent, died testate on March 9, 1946 while domiciled in the County and State of New York. The portions of his will which relate to the issues herein are as follows:

 'Article VI.

 'I give and bequeath to said Allen (defendant Donald Allen) all the shares of stock, both Class 'A' and Class 'B', of Rudolf Lesch Fine Arts, Inc. (hereinafter referred to as 'the Corporation'), that I may hold at the time of my death, but only upon the following terms and conditions:

 * * * * * *

 '(2) That he, his executors, administrators, distributees and assigns, and all other successors in interest as holders of said shares, will make the following payments:

 '(a) Pay to my said sister, Emma, as long as she may survive me, the sum of One Hundred Fifty Dollars ($ 150) per month; upon the death of the survivor of said Emma and myself, pay to said Trude, (plaintiff Gertrude Kammholz) the sum of One Hundred Twenty Dollars ($ 120) per month for the term of her natural life, and upon the death of the survivor of myself, said Emma and said Trude, pay to said Ingeborg (plaintiff Ingeborg Kammholz) the sum of One Hundred Dollars ($ 100) per month for the term of her natural life. The payments herein directed shall, however, commence and become due and payable only as, if and when, by act of Congress and/or by proclamation of the President, direct payment to said persons is again permitted.

 * * * * * *

 '(3) During the lifetime of my attorney, Albert Hirst, (defendant herein) none of the payees named in paragraph '2' of this Article shall have any right to sue or in any other way to enforce payment against said Allen, his executors, administrators, distributees and assigns, and all other successors in interest as holders of said shares, but such rights shall vest exclusively in my said attorney; after his death the said payees shall have all rights to sue or otherwise to enforce payment.

 * * * * * *

 '(6) That Allen shall execute any and all agreements, instruments and documents that my said attorney shall deem necessary or expedient in the premises, so as to assure performance of these terms and conditions and of the provisions of Article VII hereof. Said agreements shall provide that any and all certificates of stock issued at any time to Allen, his executors, administrators, distributees and assigns, and all other successors in interest as holders of said shares, shall at all time be endorsed so as to indicate the duty of the holder to make the payments which I directed in paragraph '2' hereof.

 * * * * * ...


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