In re the Estate of Itzkowitz

Appellate Division of the Supreme Court of New York

In re the Estate of Itzkowitz

51 A.D.2d 726, 379 N.Y.S.2d 142, 1976 N.Y. App. Div. LEXIS 11205

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

DecidedFebruary 2, 1976

StatusPublished

This text of 51 A.D.2d 726 (In re the Estate of Itzkowitz) 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 Itzkowitz, 51 A.D.2d 726, 379 N.Y.S.2d 142, 1976 N.Y. App. Div. LEXIS 11205 (N.Y. Ct. App. 1976).

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Opinion

In a consolidated proceeding, (1) the surviving spouse appeals (Proceeding No. 1) from so much of a decree of the Surrogate’s Court, Nassau County, dated March 27, 1975, as denied her application to direct the executor to turn the proceeds of certain exempt property over to her and (2) the decedent’s sons appeal (Proceeding No. 2) from the balance of the said decree, which, after a hearing, adjudged that the attempted transfer of certain real property to them by the decedent was illusory. Decree modified, on the law, by deleting the first decretal paragraph thereof and substituting therefor the following: "Ordered, adjudged and decreed, that the widow, Sarah Itzkowitz, is entitled to receive the sum of $5,000 as an exemption as surviving spouse, pursuant to EPTL 5-3.1, out of the proceeds received by the executor upon the sale of the decedent’s motor vehicle, and that the balance of said proceeds, $1,000, is an asset of the estate.” As so modified, decree affirmed. Appellant Sarah Itzkowitz and respondent in Proceeding No. 2 are awarded separate bills of costs, payable out of the estate. The executor realized $6,000 upon the sale of the decedent’s Cadillac. If the value of the decedent’s automobile had been $5,000 or less, it would have been exempt property under the statute (EPTL 5-3.1, subd [a], par [3]). Exemption statutes require "a liberal interpretation, so as to resolve all reasonably doubtful questions in favor of the beneficiary” (Matter of Williams, 31 App Div 617, 620). The surviving spouse is entitled to $5,000 of the proceeds as her exemption (see Matter of Barrows, 204 Misc 339, affd 283 App Div 995; Matter of Braun, 194 Misc 791; Matter of Beresford, 41 NYS2d 830; but, see, Matter of Benjamin, 150 Misc 857; Matter of Senn, 149 Misc 215, affd 241 App Div 663; Matter of Langmaid, 2 Misc 2d 119). We agree with the Surrogate that the attempted transfer of the former marital home to decedent’s sons was illusory in fact. Latham, Acting P. J., Margett, Christ, Shapiro and Titone, JJ., concur.

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In a consolidated proceeding, (1) the surviving spouse appeals (Proceeding No. 1) from so much of a decree of the Surrogate’s Court, Nassau County, dated March 27, 1975, as denied her application to direct the executor to turn the proceeds of certain exempt property over to her and (2) the decedent’s sons appeal (Proceeding No. 2) from the balance of the said decree, which, after a hearing, adjudged that the attempted transfer of certain real property to them by the decedent was illusory. Decree modified, on the law, by deleting the first decretal paragraph thereof and substituting therefor the following: "Ordered, adjudged and decreed, that the widow, Sarah Itzkowitz, is entitled to receive the sum of $5,000 as an exemption as surviving spouse, pursuant to EPTL 5-3.1, out of the proceeds received by the executor upon the sale of the decedent’s motor vehicle, and that the balance of said proceeds, $1,000, is an asset of the estate.” As so modified, decree affirmed. Appellant Sarah Itzkowitz and respondent in Proceeding No. 2 are awarded separate bills of costs, payable out of the estate. The executor realized $6,000 upon the sale of the decedent’s Cadillac. If the value of the decedent’s automobile had been $5,000 or less, it would have been exempt property under the statute (EPTL 5-3.1, subd [a], par [3]). Exemption statutes require "a liberal interpretation, so as to resolve all reasonably doubtful questions in favor of the beneficiary” (Matter of Williams, 31 App Div 617, 620). The surviving spouse is entitled to $5,000 of the proceeds as her exemption (see Matter of Barrows, 204 Misc 339, affd 283 App Div 995; Matter of Braun, 194 Misc 791; Matter of Beresford, 41 NYS2d 830; but, see, Matter of Benjamin, 150 Misc 857; Matter of Senn, 149 Misc 215, affd 241 App Div 663; Matter of Langmaid, 2 Misc 2d 119). We agree with the Surrogate that the attempted transfer of the former marital home to decedent’s sons was illusory in fact. Latham, Acting P. J., Margett, Christ, Shapiro and Titone, JJ., concur.

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51 A.D.2d 726, 379 N.Y.S.2d 142, 1976 N.Y. App. Div. LEXIS 11205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-itzkowitz-nyappdiv-1976.

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