Laney v. Laney

6 Dem. Sur. 241

• Court: New York Surrogate's Court
• Decided: January 15, 1888
• Status: Published

Opinion

The Surrogate.

The principal question in this proceeding is whether or not the care, custody, management and control of an intestate’s property can be given for a number of years after his death to such decedent’s surviving partners, by a clause in the co-partnership agreement providing that the death of a member of the firm shall not work its dissolution, but that the partnership business shall nevertheless continue and be conducted by the survivors until a day specified in said agreement. The time during which, under this present agreement, the intestate’s personal representatives will be excluded from all power over his personalty is about three years.

I am inclined to answer the above question in the negative. If a man wishes to direct the control and management of his estate after death, he can do so, within certain prescribed limits by making his will, according to law. If he dies intestate, he is held to prefer to have his estate managed and settled according to the statutes governing the distribution of intestates’ estates.

On this subject, Church, Ch. J., says, in Ross v. Hardin (79 N. Y., 91): “It is very clear, I think, that a person cannot by contract supersede, or contravene, the laws in respect to the management and devolution of property in case of intestacy. The statute has provided a mode of doing this by will, but the requirements of the statute must be complied with.” In Nat. Bank of Newburgh v. Bigler (83 N. Y., 57), the Court of Appeals, while declining to decide as to the scope or validity of such a provision, says: “ The contract was certainly intended, in some degree, to supplant and modify the legal rules which restrain the action of the survivor.” See, also, Gilman v. McArdle (65 How. Hr., 337). Some of the text book writers assert that such an agreement is valid, but, so far as I have been able to discover, they are not supported by the decision of any court on a case in point.

Furthermore, the effect of this agreement, if valid, is to suspend the absolute ownership of the larger part of the decedent’s personal property for a definite period of time, in a way which would be void if attempted to be done by will (Stewart v. Hamilton, 37 Hun, 19, 21; Moore v. Moore, 47 Barb., 257, 260). If such an agreement is valid for three years after death, it must be equally so for one hundred years, and thus by partnership agreements, appearing valid on their face, the whole law relating to wills and trusts could be circumvented and rendered practically of no effect.

While I do not agree with the referee, as to some of his conclusions in the proceeding, I think the re-suit at which he arrives is fair and just, and therefore confirm his report.