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In re Cole

Other Lower Courts

December 19, 2007

Accounting by Rita J. Cole, as Executrix of the Estate of Herbert J. Braverman, Deceased.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

John B. Riordan, J.

In this accounting proceeding, the objectants have moved for summary judgment with respect to objections numbered "Third" and "Fourth." The executor has cross-moved for summary judgment also with respect to objections numbered "Third" and "Fourth." For the reasons that follow, the objectants' motion is denied and the executor's cross-motion is granted.

The decedent, Herbert J. Braverman, died on December 27, 2001, a resident of Nassau County, leaving a will dated October 18, 2001. The will was admitted to probate by decree of this court dated January 18, 2002, and letters testamentary issued to Rita Cole, one of the decedent's daughters. The decedent was also survived by his daughter, Paula Braverman.

The decedent's will provides in Article VI, as follows:

"All of the rest of my estate, of whatsoever kind and wheresoever situated, including funds in checking and savings accounts, certificates of deposit and money market accounts in banks, not heretofore given and bequeathed to my daughter RITA COLE or otherwise, I give as follows:

A. Upwards of Five per cent (5%) of such property, but in no event more than Ten Thousand ($10,000.00) Dollars, to Molecular Mechanisms of Cancer, in care of Dr. DONALD ANTHONY, University Hospital of Cleveland, Ohio, for its medical research and charitable purposes.

B. Forty per cent (40%) of such property to my daughter PAULABRAVERMAN SCHACHAT if she survives me, and if she does not survive me, then to her issue who survive me, such issue to take per stirpes.

C. Ten per cent (10%) of such property to my niece ROSALYN FLORENCE HERMAN if she survives me, and if she does not survive me, then to her issue who survive me, such issue to take per stirpes.

In addition, Article X of the will provides, as follows:

"I direct that all taxes and duties of any nature which may be assessed or imposed, either by the United States, the State of New York, or by any other jurisdiction, upon or with respect to property passing under the provisions of this Will or upon or with respect to property not passing under the provisions of this Will but upon which property such taxes are assessed or imposed, including all such taxes assessed or imposed upon the proceeds of any policies of insurance upon my life, be paid out of my residuary estate. Unless my residuary estate is insufficient to pay the taxes in full, no claim shall be made by my Executors for a contribution toward the payment of taxes against any beneficiary of this Will, other than the residuary beneficiary, or against any person who, by reason of my death, receives property outside this Will, or against any person who receives the proceeds of life insurance contracts."

The executor has filed an account of her proceedings for the period January 18, 2002 to March 9, 2007. The decedent's daughter, Paula Braverman, and niece, Rosalyn Herman, have filed objections to the account. The objectants object to Schedule H, the Statement of Interested Parties, because they contend that Rita Cole is not a 50% residuary beneficiary as described therein but instead the sole residuary beneficiary (Objection Third). The objectants claim that the dispositions in Paragraphs A, B and C of Article VI are pre-residuary legacies and not part of the residuary estate. The objectants also object to the manner in which the executor has allocated estate taxes(Objection ...


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