Case law

In re the Estate of James

17 Mills Surr. 161 · New York Surrogate's Court · May 18, 1916

The value of the estate in Europe and of the appellant’s property is not clearly shown. We infer from the record that the American property was of the value of about $600,000; the European property of about $300,000. … The estate is a large one; the husband selected his wife as his executrix when he must have known that she had no business capacity qualifying her for that position.

In re the Estate of Balfe

152 Misc. 739 · New York Surrogate's Court · Sep 13, 1934

Therefore, even if the immunity from liability provided for by the testator does not cover the case, we think that there has been no fault and that it was error so to find.” … his mind in regard to the sale or retention of any particular security, that question was passed on to another committee known as the Manhattan administration committee which in turn, if it desired the advice of better qualified

In re the Guardianship of Mark C.H.

28 Misc. 3d 765 · New York Surrogate's Court · Apr 21, 2010

Given that due process clearly applies, the question becomes precisely, “What process is due?” … This imposition of virtually complete power over the ward clearly and dramatically infringes on a ward’s liberty interests.

In re the Probate of the Will of Bedell

2 Connoly 328 · New York Surrogate's Court · Jun 15, 1890

It cannot be doubted that the evidence of Hallenbeck, skilled and qualified for the performance of his duties, is much more valuable than the testimony of a witness like Mrs. … An examination of a few of the decided cases will show that the conclusions that have been reached are within the lines of well-established precedents. In Brick v. Brick, 66 N.

Allen v. Public Administrator

1 Bradf. 378 · New York Surrogate's Court · Jan 15, 1851

As she states the object of that proceeding, it was “ to establish that Mr. Harrison was a gambler and a drunkard, and for these reasons, to have him removed as executor.” … Allen, were qualified February 14, 1849, and they appear to have made the appraisement on the 16th of February, though it was not sworn to by Harrison, the executor, till the 26th of March.

In re Chardavoyne

5 Dem. Sur. 466 · New York Surrogate's Court · Jun 15, 1887

But a legislative act cannot be insured against repeal, not even against repeal by implication. “ The later Parliament,” says Lord Coke (1 Inst., 42, 43), “hath ever power to abrogate, suspend, qualify, explain or make void … While the cases upon which I have above commented can, as it seems to me, be readily and clearly distinguished from the case at bar, the claim that the expression “ after the passage of this act ” is not sufficiently definite

In re the Accounting of JP Morgan Chase Bank, N.A.

38 Misc. 3d 363 · New York Surrogate's Court · Dec 31, 2012

Notably, these provisions do not appear in the trust for Mark’s brother, Charles, established on the same day. . … The guardian ad litem may also wish to amend his objections to more clearly include commissions paid out in light of the abrogation of fiduciary duty. .

In re the Judicial Settlement of the Accounts of Archer

9 Mills Surr. 348 · New York Surrogate's Court · Jun 15, 1912

Sherwood who was nominated in the will as executor never qualified. On July 35, 1888, the letters testamentary granted to Allison M. … And Matter of Braunsdorf, supra, is on that point clearly distinguishable. It follows that the claim for such compensation must be disallowed.

In re the Probate of Papers Propounded as the Last Will & Testament & a Codicil thereto of Van Ness

9 Mills Surr. 545 · New York Surrogate's Court · Dec 15, 1912

I take it in any event that at the present day when either ¡undue influence or fraud is clearly established such a constructive or presumptive ratification must be adequately made out in order to prevail in such a curious … Otherwise their weight is trifling and insufficient to overbear facts clearly established by competent proofs.

In re the Estate of Witkind

167 Misc. 885 · New York Surrogate's Court · May 23, 1938

They qualified on April 10, 1930. For many years prior to the death of deceased Mr.Wacht was associated with him in business. They were costockholders of close corporations holding realty. Mr. … The executors qualified on April 10, 1930. On the eleventh and seventeenth of April $7,500 and $45,000, respectively, were paid to the creditor.

In re the Estate of Pozarny

177 Misc. 2d 752 · New York Surrogate's Court · Jul 22, 1998

The instant trust was established well before the effective date of the amended EPTL 7-1.1. We accordingly review its terms in light of the earlier version of the statute. … A trust agreement is typically and properly amended by a separate written instrument, signed, dated, and acknowledged by the settlor, which, by its terms, revokes a clearly defined section of the original and sets forth new

In re the Estate of Philippe

31 Misc. 2d 191 · New York Surrogate's Court · Jul 26, 1961

His connection with the business was thus clearly stated. The form does not appear to call for any further statement of his connection with the enterprise. … The law governing applications of payments as between debtor and creditor appears to be firmly established. As expressed by Mr. Justice Story in United States v. Kirkpatrick (9 Wheat. [22 U.

In re the Probate of the Will of vom Saal

11 Mills Surr. 256 · New York Surrogate's Court · Nov 15, 1913

respects, competent to make a will and devise real estate, and was not under réstraint, and a decree will be entered, admitting the will to probate and ordering letters testamentary to be issued to the executors who may qualify … with all accumulations of interest thereon at their *262 majority and appointing executors, was: ‘Intrusting to their discretion the settlement of my affairs and the investment of my estate for the benefit of my heirs ’—clearly

In re the Estate of Falise

20 Misc. 3d 894 · New York Surrogate's Court · Mar 31, 2008

The testator’s wishes are viewed as no more than advisory, particularly where, as here, the preferences are clothed in a layer of qualifying language giving the legatee unfettered discretion (Lawrence v. … Both Judith Braceo and Gregory Trowbridge are disinterested witnesses within the meaning of the law, whereas Paul clearly is not.

In re Horowitz

40 Misc. 3d 719 · New York Surrogate's Court · Mar 12, 2013

Lastly, petitioners claim that the decedent clearly knew how to express his intention when he desired, as shown by the language in his will regarding the bequest for his daughter, Bernice Lieberman. … No other legacy is so qualified. The provision will not be rejected as surplusage where a reasonable interpretation will give it effect. There is no doubt that the testator had this debt in mind when he drew his will.

Weir v. Fitzgerald

2 Bradf. 42 · New York Surrogate's Court · Oct 15, 1851

The rule was, of necessity, qualified by the reason of it, which was a presumed want of capacity. … This proof, I think, is clearly sufficient, and is not overcome by the want of recollection on the part of the other witness.

In re the Estate of Gebauer

79 Misc. 2d 715 · New York Surrogate's Court · Nov 8, 1974

. *720 "What is not clear to this court is whether the new motivation test established by the Ortelere decision is an addition or a replacement to the “ prior * * * cognitive standard giving great weight to objective evidence … Staffer did not qualify as an alienist; therefore, his testimony was erroneously received. He could not legally testify as to the mental competency of the decedent”. (Matter of Lindou, p. 819.)

Brush v. Holland

3 Bradf. 461 · New York Surrogate's Court · Jan 15, 1856

And yet, on the other hand it is very clearly shown, that about the first of May, 1853, Mr. … These witnesses establish satisfactorily that Mr.

Taylor Will Case

10 Abb. Pr. 300 · New York Surrogate's Court · Dec 15, 1870

To exclude such declarations would be, as it appears to me, to reject matter, to say the least, clearly not immaterial to the principal question I am to determine upon this paper. … before me furnishes an example of such depreciation or liability to loss, as it appears that suits and proceedings of varidus kinds have been instituted against the estate in consequence of the inability of the executors to qualify

In re the Judicial Settlement of the Estate of Oosterhoudt

1 Gibb. Surr. 516 · New York Surrogate's Court · Jan 15, 1896

Smith, the husband of one of the daughters, were named executors, and each duly qualified. The widow died June 10, 1890; without having participated to any great extent in the management of the estate. … Does silence, under such circumstances, establish consent or acquiescence, constituting estoppel?