In re Marsloe

Appellate Division of the Supreme Court of New York

In re Marsloe

88 A.D.3d 1003, 931 N.Y.2d 414

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 25, 2011

StatusPublished

This text of 88 A.D.3d 1003 (In re Marsloe) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Marsloe, 88 A.D.3d 1003, 931 N.Y.2d 414 (N.Y. Ct. App. 2011).

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Opinion

Insofar as is pertinent herein, EPTL 3-3.2 provides as follows:

“(a) An attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment had been made, subject to the following:

“(1) Any such disposition or appointment made to an attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.”

The objectants to the subject will primarily contend that the petitioner is disqualified from acting as executor under the will [1004]*1004because his appointment as executor constitutes a “beneficial disposition,” and he was also one of only two attesting witnesses to the will. However, the statutory commission attendant upon the performance of one’s duties as an executor appointed under a will is not in the nature of a testamentary bequest or benefit, but instead represents compensation for services rendered (see McDonough v Loughlin, 20 Barb 238 [1855]; see also Children’s Aid Socy. of City of N.Y. v Loveridge, 70 NY 387 [1877]; Matter of Bitterman, 203 Misc 796, 800 [1952], affd 281 App Div 1024 [1953]). Therefore, even though the petitioner was only one of two attesting witnesses to the subject will, the fact that he is named executor of the will does not mean that he is receiving a “beneficial disposition” under the will so as to. disqualify him from that position pursuant to EPTL 3-3.2 (see Matter of Maset, 25 Misc 3d 1229[A], 2009 NY Slip Op 52335[U] [2009]; Matter of Fracht, 94 Misc 2d 664, 668 [1978]). In addition, there is no merit to the objectants’ contention that the phrase “appointment of property” as used in the statute includes an individual’s appointment as executor thereunder. Accordingly, the Surrogate’s Court properly granted the petitioner’s application for preliminary letters testamentary.

The objectants’ remaining contentions are without merit. Rivera, J.R, Florio, Austin and Sgroi, JJ., concur.

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Insofar as is pertinent herein, EPTL 3-3.2 provides as follows:

“(a) An attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment had been made, subject to the following:

“(1) Any such disposition or appointment made to an attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.”

The objectants to the subject will primarily contend that the petitioner is disqualified from acting as executor under the will [1004]*1004because his appointment as executor constitutes a “beneficial disposition,” and he was also one of only two attesting witnesses to the will. However, the statutory commission attendant upon the performance of one’s duties as an executor appointed under a will is not in the nature of a testamentary bequest or benefit, but instead represents compensation for services rendered (see McDonough v Loughlin, 20 Barb 238 [1855]; see also Children’s Aid Socy. of City of N.Y. v Loveridge, 70 NY 387 [1877]; Matter of Bitterman, 203 Misc 796, 800 [1952], affd 281 App Div 1024 [1953]). Therefore, even though the petitioner was only one of two attesting witnesses to the subject will, the fact that he is named executor of the will does not mean that he is receiving a “beneficial disposition” under the will so as to. disqualify him from that position pursuant to EPTL 3-3.2 (see Matter of Maset, 25 Misc 3d 1229[A], 2009 NY Slip Op 52335[U] [2009]; Matter of Fracht, 94 Misc 2d 664, 668 [1978]). In addition, there is no merit to the objectants’ contention that the phrase “appointment of property” as used in the statute includes an individual’s appointment as executor thereunder. Accordingly, the Surrogate’s Court properly granted the petitioner’s application for preliminary letters testamentary.

The objectants’ remaining contentions are without merit. Rivera, J.R, Florio, Austin and Sgroi, JJ., concur.

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Bluebook (online)

88 A.D.3d 1003, 931 N.Y.2d 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marsloe-nyappdiv-2011.

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