22 Misc.2d 3 (1960)

In the Matter of the Probate of the Will of Elizabeth W. Dunscombe, Deceased.

Surrogate's Court, Kings County.

Attorney(s) appearing for the Case

Sincerbeaux & Shrewsbury for petitioners.

Edwin M. Slote for Harry Weinstein, as trustee.


This is a motion in a pending probate proceeding for summary judgment and to strike out objections filed by assignees of a beneficiary under a power of appointment.

John P. Duncan, father of decedent, died on April 7, 1901, a resident of the County of New York. His will was duly admitted to probate in the Surrogate's Court of New York County on April 22, 1901, when letters testamentary were issued. The estate and trusts created under said will are administered in that county. The decedent in this proceeding had a power of appointment of the remainder of a trust created for her benefit under the will of her father. In 1942 decedent's son, Duncan Dunscombe, assigned his interests in said trust under the will of John P. Duncan to several assignees. The propounded instrument which is the subject of this proceeding nominates Duncan Dunscombe, decedent's son, and his wife as executors. By her will decedent appointed one third of the appointive property to her son, Duncan Dunscombe, and two thirds to a granddaughter. Citations were issued in this estate to the assignees of said Duncan Dunscombe who do not oppose the probate of the will but object to the granting of letters herein to their assignor and his wife, the nominated executors.

The exercise of the power of appointment relates back to the estate of John P. Duncan. The donor merely utilized this decedent as an instrument for the devolution of the title of his, donor's property (Matter of Rogers, 250 App. Div. 26, 30, motion for leave to appeal denied 274 N.Y. 642, citing Matter of Stewart, 131 N.Y. 274, 281; Matter of New York Life Ins. & Trust Co., 209 N.Y. 585). The objectants have no interest in the estate of this decedent. Their interests are solely in the estate of John P. Duncan as assignees of decedent's son who was named in decedent's will to receive one third of the remainder interest of the trust created for decedent's benefit under the will of John P. Duncan. Whatever payments may be due the assignees will be directed in the Surrogate's Court of New York County under the will of John P. Duncan. As executors of this decedent, respondents will not receive any money from the estate of John P. Duncan in which the movants have any interest. The objections to the qualification of the nominated executors are dismissed and the motion for summary judgment is granted. Settle decree on notice.


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