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SURROGATE'S COURT OF NEW YORK, BROOME COUNTY 1969.NY.42179 <>; 301 N.Y.S.2d 125; 60 Misc. 2d 512 June 24, 1969 IN THE MATTER OF THE ESTATE OF ALGIE R. KAHN, DECEASED Hinman, Howard & Kattell (James M. Hayes of counsel), for Charles L. Reynolds, petitioner. Frank M. Chupp, guardian ad litem for Mark L. Van Vorce and others, infants, respondents. John M. Keane, S. Author: Keane

John M. Keane, S.

Author: Keane

 This construction proceeding has been transferred by the Supreme Court pursuant to SCPA 501 to the Surrogate's Court.

Nature abhors a vacuum, according to the high school physics books of a generation ago, and since no will exists in a vacuum, the facts involved here are significant. The decedent, Algie R. Kahn, being about 57 years old, died August 26, 1911. Her will, which had been executed on November 10, 1909, was admitted to probate in this court on October 2, 1911. She left surviving a daughter, Nellie M. Reynolds, then 36 years of age, and a grandson, Charles L. Reynolds, then 11 years of age. Although her will relates to both real and personal property, the transfer tax proceeding shows that she died possessed of two parcels of real property and no personal property.

The paragraphs of the will relevant to this proceeding are as follows:

"Third. The balance of my property, real and personal, to my daughter, Nellie M. Reynolds, to use the same for her comfortable support and maintenance for and during the term of her natural life.

"Fourth. After the death of my said daughter the balance of my property, then remaining, is to go to the issue of said Nellie M. Reynolds, if any survive her, but, in case she die without issue, the same is to be equally divided between my then surviving brothers and sisters, with this exception, that the share of my sister, Mary Gilmore, is to go to her son, Edward, if living. But, in case all my brothers and sisters are dead, leaving issue, then the share of such deceased brother or sister is to go to their issue."

In 1962 the State of New York appropriated for highway purposes one of the parcels of real property, a two-family house occupied by Nellie M. Reynolds on the lower floor and rented on the second floor. The nature of the devise under the will of the decedent was such that a proceeding was necessary in Supreme Court to secure approval of an offer made by the State and also to determine the disposition of the proceeds of the appropriation.

Accordingly, in 1963, such a proceeding was begun. The final order, made on March 2, 1964, determined that the amount offered by the State was fair and reasonable. More importantly, the order directed that the sum of $19,513.65 remaining after payment of the expenses be deposited in interest accounts of two banks and that Nellie M. Reynolds as life tenant receive the income from said accounts semiannually, but that she had no right to withdraw any of the principal. The order then provided that, "upon the death of the said life tenant, Nellie M. Reynolds, each of the aforesaid banks shall pay over and distribute to the Executor or Administrator of the life tenant the accrued interest on said savings remaining in the respective accounts and shall then pay over and distribute the principal of said accounts, pursuant to the directions in the Last Will and Testament of Algie R. Kahn, deceased, to and among the remaindermen or other persons who may then be entitled thereto, upon order of this Court or of a Court of competent jurisdiction".

The money still remains in the two banks as directed by the Supreme Court. The petition in the proceeding in Supreme Court also requested relief that, "On the further order of this Court, upon the death of Nellie M. Reynolds, the trust or savings account balance, is to be distributed per capita to the surviving issue of Nellie M. Reynolds, but if Nellie M. Reynolds dies without issue surviving her, then the trust corpus or savings account balance is to be distributed among the surviving issue of the deceased brothers and sisters of Algie R. Kahn." However, the order as finally made on March 2, 1964 did not make a determination of this quoted prayer for relief.

Nellie M. Reynolds, a widow since 1946, suffered a stroke in July, 1968 and after being first in a hospital, has subsequently been confined to a convalescent home. She is now 93 years of age and her son, Charles L. Reynolds, is approximately 69 years of age. Additional issue are two granddaughters (children of Charles L. Reynolds) and four great-grandchildren. Thus, at the present time, there are seven living persons who are the issue of Nellie M. Reynolds.

This proceeding was initiated by Charles L. Reynolds seeking a construction of the will of his grandmother, Algie R. Kahn, to the effect that his mother, Nellie M. Reynolds, the life tenant, has, for all practical purposes, an absolute fee interest in the one parcel of real property remaining, and in the moneys presently in the two banks representing the amount paid for the appropriation of the other parcel. In addition, he has requested the court to make a determination concerning the ultimate remaindermen under the terms of his grandmother's will.

Specifically he seeks a determination that the fee has vested in Nellie M. Reynolds because she received more than a life tenancy under the will. The guardian ad litem for the four infant respondents, who are also issue of Nellie M. Reynolds, opposes this request and contends that only a life estate without power to invade was given to Nellie M. Reynolds under the will of her mother, Algie R. Kahn. The guardian ad litem further contends that if the court entertains the request to make a determination as to the ultimate remaindermen, the disposition should be per capita and not per stirpes, inasmuch as the decedent died in 1911.

Decedent's will was very short, covering less than a single page. Except for directions to purchase a modest monument and a bequest of $100 to a grandnephew, it consisted only of the paragraphs already set forth. It was prepared by a lawyer.

On occasion the court must indulge in a legal fiction when seeking the intent of a testator where a long and complex will has been prepared by a lawyer; yet the courts generally have held language in wills prepared by lawyers to be less susceptible of variant meanings because the lawyer is using the words of his profession. Contrariwise, a will drawn by one not a lawyer provides an opportunity for a court to apply less stringent guidelines in interpretation. Although counsel for the petitioner argues that the draftsman could have been more ...

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