Wilson Building, Inc. v. Baer

11 Misc. 2d 467, 175 N.Y.S.2d 495, 1958 N.Y. Misc. LEXIS 3442
CourtNew York Supreme Court
DecidedApril 28, 1958
StatusPublished

This text of 11 Misc. 2d 467 (Wilson Building, Inc. v. Baer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson Building, Inc. v. Baer, 11 Misc. 2d 467, 175 N.Y.S.2d 495, 1958 N.Y. Misc. LEXIS 3442 (N.Y. Super. Ct. 1958).

Opinion

Irving H. Saypol, J.

Motion for summary judgment in an action under article 15 of the Beal Property Law is granted and the answers stricken on the detailed and capably expressed report of the guardian ad litem, James B. Kilsheimer, III, which is adopted and confirmed as part of this decision and incorporated herein in the appendix. No opposing affidavits have been filed. All appearing defendants agree that summary judgment is in order. The contentions of the defendant Baer regarding the invalidity of certain provisions of the will of George B. Wilson are overruled and his request for compensation must be denied as unauthorized.

The plaintiff is entitled to judgment declaring that the will of George B. Wilson validly disposed of his entire interest in [469]*469the subject property and the conveyance to the plaintiff by the trustees of the will of Emily Earle Wilson was authorized in law and is approved by the court. Settle judgment to be accompanied by the guardian’s affidavit of services.

Report of Guardian ad Litem

The undersigned was appointed by order of Mr. Justice Irving H. Saypol of this court dated November 6, 1957 to be guardian ad litem in this proceeding to protect the interests of Dodge Crockett, Jr., Elizabeth Earle Crockett, Juliet S. Welton, Richard Earle Welton and Clare Street! Chapman, infants interested in this action. My consent to serve as guardian ad litem and affidavit of qualification were served and filed herein on or about November 27, 1957.

This report is submitted to the court in connection with plaintiff’s motion seeking summary judgment for the relief sought in the complaint. My purpose is to set forth the pertinent facts, and the legal conclusions flowing therefrom, to assist the court in adjudicating the rights of my wards on this motion.

Plaintiff, Wilson Building, Inc., brought the action pursuant to article 15 of the Real Property Law for a judgment, in essence a declaratory judgment, determining the title to a parcel of real property in New York County. The subject property as described in the complaint is valuable realty located at the southeast corner of Broadway and West 33rd Street, commonly known as the Wilson Building. It is assessed for real estate tax purposes at $1,400,000, and consists of a 12-story office building.

The record title to an undivided 212/240ths of the estate is in plaintiff corporation, while record title to the remaining undivided 28/240ths is in one Rommel Wilson. Prior to the institution of this action, plaintiff applied to the Title Guarantee & Trust Company for a policy of title insurance insuring good title in plaintiff. The title company raised various objections to plaintiff’s title, which precipitated this suit to clear and quiet the title to the premises. The title company objections fell basically into two main categories:

1. The will of George B. Wilson, the former owner of the entire fee title, was invalid, in part, under New York law as unlawfully suspending the power of alienation — a violation of the so-called Rule against Perpetuities;

2. The trustees under three different wills in the chain of plaintiff’s title —estate of Emily Earle Wilson, estate of Gertrude Rommel Wilson, estate of Florence Wilson Martens [470]*470— conveyed their undivided interests in the subject realty to plaintiff in exchange for their proportionate stock interest in plaintiff without court authorization.

Each of these objections will be discussed later in this report as they relate.to the interests of my wards. First, there are certain relevant facts to be called to the court’s attention.

THE FACTS

Title to the subject property, so far as is material here, was originally held by George B. Wilson who died on June 13, 1912. His will and a codicil thereto were probated before the Register of Wills of Philadelphia, Pennsylvania. He was survived by his widow, Edna Wilson and by four children, George Searing Wilson, Graham L. Wilson, Florence Wilson Martens, and George B. Wilson, Jr. For the court’s convenience a copy of the family tree of George B. Wilson, as furnished to the guardian ad litem, follows: [See page 480.] As will appear hereinafter, my wards claim through the trusts set up in the will of Emily Earle Wilson, widow of George B. Wilson, Jr.

Under the will of George B. Wilson, executed February 24, 1912, so far as is material to this action, the residuary of his estate, which included the fee title to the subject realty, was divided as follows:

7/20ths outright to his widow Edna Wilson.

l/20th in trust for each of his four children for five years from Wilson’s death, and then payment of each child’s share outright. Each of the four children survived Wilson by more than five years, and so this 4/20ths of his estate was paid outright to the children.

9/20ths after payment of six annuities, in trust to pay the income to testator’s wife, Edna Wilson, for life, and on her death to continue the same in trust with income payable to testator’s four children until George B. Wilson, Jr. (testator’s youngest child) reached 50 years of age. At that time the principal of the trust was to be divided among testator’s four children, or their descendants.

By a codicil to his will, executed on April 12, 1912, Wilson inserted the following clause: ‘ ‘ Lastly, I have directed that the time for distribution of the nine-twentieths of the residuary estate, subject to the payment of annuities, shall be when my [471]*471son, George B. Jr., shall attain the age of fifty years. I now alter the time for distribution and payment over of my residuary estate, so that the time shall be upon the attainment of the age of fifty years by my youngest child who shall attain said age. In case of the death of all my children before any shall attain the age of fifty years, then I direct that the estate shall be divided amongst the parties directed by Will, subject to the retention of sufficient to pay the annuities above directed.”

It is the second sentence of the above clause in the codicil that raises the questions under the Rule against Perpetuities. As actually happened, the testator left four children, as well as his widow. Therefore under the above codicil, the power of alienation was suspended as of the testator’s death for a possible period of five lives in being. In fact, three of testator’s children reached 50 years of age, but, the fourth, George B. Wilson, Jr., died approximately .two and one-half months prior to his 50th birthday.

Since Wilson’s will is invalid, in part, under New York law, the question raised in this action is: How much of the will becomes invalid? Obviously, if the entire will is held to be invalid, then the attempted distribution under the residuary clause must be recalled and the same handled under the intestacy statutes in existence in 1912. Under those statutes, the entire estate would have vested in the decedent’s four children, subject only to the widow’s dower rights. On the other hand, if only a partial invalidity is decreed, the testamentary plan of the decedent may, for the most part be salvaged. This will be discussed later in this report.

In fact, the trustees of the Wilson estate apparently always assumed the validity of the will. Upon the death of George B. Wilson, Jr., in 1928, the trustees undertook to distribute the remaining 9/20ths of the residuary estate to the three surviving children and to the estate of George B. Wilson, Jr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People's Trust Co. v. . Flynn
80 N.E. 1098 (New York Court of Appeals, 1907)
Appell v. . Appell
117 N.E. 1060 (New York Court of Appeals, 1917)
Sawyer v. . Cubby
40 N.E. 869 (New York Court of Appeals, 1895)
Schoellkopf Holding Co. v. . Kavinoky
111 N.E. 60 (New York Court of Appeals, 1916)
In Re the Accounting of Keesey
163 N.E. 133 (New York Court of Appeals, 1928)
Matter of Durand
164 N.E. 737 (New York Court of Appeals, 1928)
In Re the Accounting of Pross
2 N.E.2d 628 (New York Court of Appeals, 1936)
In Re the Accounting of Fifth Avenue Bank of New York
29 N.E.2d 471 (New York Court of Appeals, 1940)
Kalish v. . Kalish
59 N.E. 917 (New York Court of Appeals, 1901)
Appell v. Appell
177 A.D. 570 (Appellate Division of the Supreme Court of New York, 1917)
In re the Accounting of Krooss
99 N.E.2d 222 (New York Court of Appeals, 1951)
In re the Accounting of Heller
120 N.E.2d 688 (New York Court of Appeals, 1954)

Cite This Page — Counsel Stack

Bluebook (online)
11 Misc. 2d 467, 175 N.Y.S.2d 495, 1958 N.Y. Misc. LEXIS 3442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-building-inc-v-baer-nysupct-1958.