In re the Estate of Danilchenko

Appellate Division of the Supreme Court of New York

In re the Estate of Danilchenko

37 A.D.2d 587, 323 N.Y.S.2d 150, 1971 N.Y. App. Div. LEXIS 3843

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

DecidedJune 14, 1971

StatusPublished

Cited by2 cases

This text of 37 A.D.2d 587 (In re the Estate of Danilchenko) 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.

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In re the Estate of Danilchenko, 37 A.D.2d 587, 323 N.Y.S.2d 150, 1971 N.Y. App. Div. LEXIS 3843 (N.Y. Ct. App. 1971).

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Memorandum Decree of the Surrogate’s Court, Dutchess County, dated August 6,1970, which construed the testatrix’ will, after a nonjury trial, affirmed, with separate bills of costs to all parties appearing and filing separate briefs, payable out of the estate. Considered in the abstract, the dissenting opinion of our learned Brother Benjamin is extremely persuasive, but we are here confronted with a will which provides that “ the determination, in good faith, by my Executor of any question presented by this provision [whether any legatee would not, because of residence in a foreign country or state, have the benefit or use or control of the money or other property to be distributed to him or her] shall be conclusive and binding”. The Surrogate has found as a fact, after a plenary hearing, that the executor’s determination that the foreign beneficiaries could have the benefit or use or control of the legacies bequeathed to them under the will was made in good faith and that SCPA 2218 did not act as a bar to present payment of the bequests. That, in our opinion, ends the matter. The determination therefore should be affirmed.

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Memorandum Decree of the Surrogate’s Court, Dutchess County, dated August 6,1970, which construed the testatrix’ will, after a nonjury trial, affirmed, with separate bills of costs to all parties appearing and filing separate briefs, payable out of the estate. Considered in the abstract, the dissenting opinion of our learned Brother Benjamin is extremely persuasive, but we are here confronted with a will which provides that “ the determination, in good faith, by my Executor of any question presented by this provision [whether any legatee would not, because of residence in a foreign country or state, have the benefit or use or control of the money or other property to be distributed to him or her] shall be conclusive and binding”. The Surrogate has found as a fact, after a plenary hearing, that the executor’s determination that the foreign beneficiaries could have the benefit or use or control of the legacies bequeathed to them under the will was made in good faith and that SCPA 2218 did not act as a bar to present payment of the bequests. That, in our opinion, ends the matter. The determination therefore should be affirmed.

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Bluebook (online)

37 A.D.2d 587, 323 N.Y.S.2d 150, 1971 N.Y. App. Div. LEXIS 3843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-danilchenko-nyappdiv-1971.

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