In re the Estate of Rosen

New York Surrogate's Court

In re the Estate of Rosen

22 Misc. 2d 243, 199 N.Y.S.2d 838, 1960 N.Y. Misc. LEXIS 3486

DecidedMarch 2, 1960

StatusPublished

This text of 22 Misc. 2d 243 (In re the Estate of Rosen) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Rosen, 22 Misc. 2d 243, 199 N.Y.S.2d 838, 1960 N.Y. Misc. LEXIS 3486 (N.Y. Super. Ct. 1960).

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Opinion

S. Samuel Di Falco, S.

In this accounting proceeding a question is raised in respect of the apportionment of estate taxes. There was included in the taxable estate the sum of $77,000 representing moneys in joint bank accounts. The joint tenant of these accounts asserts that by reason of article Ninth of the will the taxes attributable to the joint bank accounts must be paid out of the residuary estate.

Article Ninth of the will provides: ‘ ‘ From the rest, residue and remainder of my estate, whether real, personal or mixed, I direct my Executors to make payment of all administration expenses, legal fees and taxes, whether inheritance, estate or transfer taxes, or howsoever the same may be designated.”

The court holds that this language does not excuse the joint bank accounts from bearing their proportionate share of the taxes. Section 124 of the Decedent Estate Law specifically provides that any direction in the will with respect to the apportionment of taxes shall be limited in its operation to the property passing thereunder unless such will or instrument otherwise directs. The court finds that there is no such direction contained in article Ninth of this will. (Matter of Mills, 180 Misc. 136, affd. 272 App. Div. 229, affd. 297 N. Y. 1012; Matter of Pepper, 307 N. Y. 242; Decedent Estate Law, § 124, subd. 4.)

The special guardian is directed to report on the account of the executors. Any issues raised therein and the issue raised by the application to fix the compensation of the attorney for the petitioners are placed on my calendar for a hearing on the 14th day of April, 1960, at 10:30 a.m.

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S. Samuel Di Falco, S.

In this accounting proceeding a question is raised in respect of the apportionment of estate taxes. There was included in the taxable estate the sum of $77,000 representing moneys in joint bank accounts. The joint tenant of these accounts asserts that by reason of article Ninth of the will the taxes attributable to the joint bank accounts must be paid out of the residuary estate.

Article Ninth of the will provides: ‘ ‘ From the rest, residue and remainder of my estate, whether real, personal or mixed, I direct my Executors to make payment of all administration expenses, legal fees and taxes, whether inheritance, estate or transfer taxes, or howsoever the same may be designated.”

The court holds that this language does not excuse the joint bank accounts from bearing their proportionate share of the taxes. Section 124 of the Decedent Estate Law specifically provides that any direction in the will with respect to the apportionment of taxes shall be limited in its operation to the property passing thereunder unless such will or instrument otherwise directs. The court finds that there is no such direction contained in article Ninth of this will. (Matter of Mills, 180 Misc. 136, affd. 272 App. Div. 229, affd. 297 N. Y. 1012; Matter of Pepper, 307 N. Y. 242; Decedent Estate Law, § 124, subd. 4.)

The special guardian is directed to report on the account of the executors. Any issues raised therein and the issue raised by the application to fix the compensation of the attorney for the petitioners are placed on my calendar for a hearing on the 14th day of April, 1960, at 10:30 a.m.

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Bluebook (online)

22 Misc. 2d 243, 199 N.Y.S.2d 838, 1960 N.Y. Misc. LEXIS 3486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-rosen-nysurct-1960.

Opinion

S. Samuel Di Falco, S.

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