In re the Estate of Thoens

Appellate Division of the Supreme Court of New York

In re the Estate of Thoens

51 A.D.2d 691, 379 N.Y.S.2d 97, 1976 N.Y. App. Div. LEXIS 11120

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

DecidedFebruary 2, 1976

StatusPublished

Cited by4 cases

This text of 51 A.D.2d 691 (In re the Estate of Thoens) 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 the Estate of Thoens, 51 A.D.2d 691, 379 N.Y.S.2d 97, 1976 N.Y. App. Div. LEXIS 11120 (N.Y. Ct. App. 1976).

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Opinion

Order, Surrogate’s Court, New York County, entered on March 20, 1975, affirmed on opinion of Di Falco, S. Respondents shall recover of appellant one bill of $60 costs and disbursements of this appeal. Concur— Murphy, Lupiano, Silverman and Yesawich, JJ.; Kupferman, J., dissents in the following memorandum: At this early stage, with the application by the preliminary executors to dismiss on the ground of the statute of frauds this claim to one half of an estate, the motion should have been denied. The claim is based on an alleged oral agreement, and the memorandum alleged to remove the bar of the Statute of Frauds is a will executed January 18, 1965, which will has many times since been superseded. There are also [692]*692several deeds with respect to the real property involved, all of which shows a serious basis for the claimant’s contention. (See Matter of Levin, 302 NY 535 [4 to 3 decision].) While ultimately the claim may not be successful, cf. Phillips v Kantor & Co. (31 NY2d 307), he should be permitted an opportunity to attempt to substantiate it through pretrial proceedings. Concur— Kupferman, J. P., Murphy, Lupiano, Silverman and Yesawich, JJ.

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Order, Surrogate’s Court, New York County, entered on March 20, 1975, affirmed on opinion of Di Falco, S. Respondents shall recover of appellant one bill of $60 costs and disbursements of this appeal. Concur— Murphy, Lupiano, Silverman and Yesawich, JJ.; Kupferman, J., dissents in the following memorandum: At this early stage, with the application by the preliminary executors to dismiss on the ground of the statute of frauds this claim to one half of an estate, the motion should have been denied. The claim is based on an alleged oral agreement, and the memorandum alleged to remove the bar of the Statute of Frauds is a will executed January 18, 1965, which will has many times since been superseded. There are also [692]*692several deeds with respect to the real property involved, all of which shows a serious basis for the claimant’s contention. (See Matter of Levin, 302 NY 535 [4 to 3 decision].) While ultimately the claim may not be successful, cf. Phillips v Kantor & Co. (31 NY2d 307), he should be permitted an opportunity to attempt to substantiate it through pretrial proceedings. Concur— Kupferman, J. P., Murphy, Lupiano, Silverman and Yesawich, JJ.

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Bluebook (online)

51 A.D.2d 691, 379 N.Y.S.2d 97, 1976 N.Y. App. Div. LEXIS 11120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-thoens-nyappdiv-1976.

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