In re Bernanke’s Estate

In this proceeding for the judicial settlement of the account of executors the testator’s widow objects to the failure of the accountants to set apart exempt property in compliance with Surrogate’s Court Act. The will provides a trust of one-half of the estate for the benefit of the widow and also bequeaths to her a legacy of $5,000 to be paid out of the principal of her trust. A portion of the will reads as follows:

‘The foregoing provisions in favor of my wife are in lieu of all claims which she may have as my surviving spouse by way of an election to take or otherwise. I fully realize that said provisions are in excess of her right of election, as set forth in Section 18 of the Decedent’s Estate Law.’

The executors’ response to the widow’s objection is that the bequest to the widow was in lieu of exempt property and that, under the terms of the will, the widow was put to an election under which the acceptance of the testamentary benefit constituted a relinquishment of her right to the exempt property. The alternative to acceptance of the bequest is not definitively stated by the executors but it would seem that their contention as to the effect of the testamentary provision would lead to the conclusion that the widow had a right to take under the will or to reject the will in its entirety and, in the latter event, to take both the exempt property and her intestate share, as defined in Decedent Estate Law, as if the will made no provision for her. It would seem possible for a testator to provide an independent legacy as a substitute for exempt property and by such a will provision to put the surviving spouse to an election between the two benefits but that is not the pattern of this will. Here, if the position of the executors is correct, the right to exempt property is inextricably tied in with the benefits intended to be in compliance with Decedent Estate Law. Presumably the executors, to be consistent, would argue that this will puts the widow to a choice between the testamentary gift on the one hand and a combination of the exempt property and minimal benefits under Decedent Estate Law, on the other hand but it would seem extremely doubtful that a conditional provision imposing such an involved burden of choice would meet the requirements of the statute.

It is the opinion of this court that the will does not put the widow to an election that affects her right to exempt property and, to express such a purpose, much clearer evidence of testamentary intention is required than is apparent from the language of this instrument was made prior to the enactment of Decedent Estate Law, and at a time when a widow had a dower right. At that time a surviving spouse had no right of election to take against a will, even though wholly disinherited, and it was recognized that a husband by a voluntary bequest to his widow could put her to an election to take either the bequest or to assert her right of dower. The Westerbeke decision is inapplicable to the instant case.

The executors in deducting debts and administration expenses from the gross estate before computation of the principal amount of the widow’s trust have acted properly.

The first objection to the account is sustained. The second objection is dismissed and, in view of such dismissal, the third objection also falls.

Submit decree on notice.

Bernanke’s Estate, In re, 196 N.Y.S.2d 6, 20 Misc.2d 773 (N.Y. Sur. 1960).

Fee Title Not Acquired in Cemetary Plot Acquisition

It is an established principle that the purchaser of a cemetery lot does not acquire a fee title, but a right, in the nature of an easement, to use the lot for purposes of interment, in accordance with the regulations prescribed by the owner of the cemetery grounds. Since the ordinary incidents of ownership of real property do not attach to ownership of a cemetery lot, the rules of real estate conveyancing and devolution afford no safe guide for the transfer of rights in a cemetery lot. This caution becomes the more necessary in the light of the statutory declaration:

After a burial therein, the same shall be inalienable, except as otherwise provided. The foregoing provision has in substance been part of the law of this state since the enactment of the Rural Cemetery Act of 1847.

In reliance on this restriction the defendant now argues that the 1923 transaction between the original owner Emma Swift Hammerstein and her step-son Arthur was ineffectual to confer any rights upon the latter and that it was but an attempt, by indirection, to circumvent the statutory restriction. Though the written submission contains no explicit statement on the point, apparently the defendant’s present position is contrary to that taken by it in 1923 and thereafter. There is no suggestion that the various instruments already enumerated which were filed with the defendant were ever questioned by it. They seem to have been accepted for filing without objection or qualification and the defendant impliedly recognized their validity when in two instances it permitted interments in the lot directed by them. However, determination of this question is not now necessary, for I conclude that even if Arthur Hammerstein succeeded to all the rights of Emma Swift Hammerstein in the lot, these rights did not pass to the plaintiff under his will.

As stated above, Arthur’s will makes no mention or reference to the cemetery lot; in general terms it gives to the plaintiff all his estate, real, personal or mixed, of whatsoever kind and character and wheresoever situate. Subdivision 6 of section 84 of the Membership Corporations Law provides as follows:

‘provided, however, that no interest in any lot, plot or part thereof shall pass by any residuary or other general clause in a will and such interest shall pass by will only if the lot, plot or part thereof sought to be devised is specifically referred to in such will.’

Self-evidently no interest in the cemetery lot devolved on the plaintiff under Arthur’s will, because of the omission of specific reference to the lot. It follows that the plaintiff has not, as she claims, succeeded to the rights of her late husband under his will.

Notwithstanding its challenge of the efficacy of Emma Swift’s renunciation in favor of Arthur Hammerstein, the defendant concludes its brief with the submission that ‘only those persons designated by Arthur Hammerstein in the instruments filed by him with The Woodlawn Cemetery are presently entitled to be buried in said lot.’ The plaintiff is one of the persons so designated and obviously the determination that she has not succeeded to Arthur’s rights in the lot in no way touches her own right to be buried therein in accordance with Arthur’s written designation. The agreed statement does not place this right in issue.

Indeed, if Emma Swift’s release and renunciation were effective to vest the rights in the lot in Arthur Hammerstein–a question now left undetermined–the plaintiff may have additional rights in the lot, not under his will, as she asserts, but right to possession, care and control under the following provision of subdivision 6 of section 84 of the Membership Corporations Law: ‘The surviving spouse of a deceased lot owner during his or her life and the owners from time to time of the deceased lot owner’s lot, plot or part thereof, shall have in common the possession, care and control of such lot, plot or part thereof.’

Defendants Accused Plaintiff of Negligence in Not Discovering Discrepancy

Defendants urge that the evidence shows negligence by plaintiff in not discovering the discrepancy between the named insured and the true owner. Thus, the defendants contend plaintiff is not entitled to reformation. Even if true, this does not necessarily mean that under our law reformation will be denied. We said in Travelers Insurance Co. v. Bailey: Mistakes generally occur through some carelessness, and failure to discover a mistake may be in some degree negligent, but unless some prejudice to the other party’s rights under the true contract results, so as to make its enforcement inequitable, reformation will not be refused because of the presence of some negligence. As already pointed out, neither prejudice to the defendants’ rights is shown nor is any prejudice claimed to exist. The fact that no bank employee discovered the error in the named insured being properly designated, if negligence, is not a bar to reformation in this case. The mere failure of a party to a contract to read the instrument before executing it is not a controlling factor.

The defendants claim plaintiff’s negligence is made all the more vivid by its failure to notify the insurer of a change in ownership. In urging this the defendants have overlooked the fact that there never was a change in the ownership of the property insured and the findings so read. This requirement in the mortgage clause never became necessary or operative. Furthermore, this is not a case of the bank as the complaining party committing a mistake concerning the issuance of the insurance agreements. Neither the record nor the findings indicate that the bank took any part in the insurance transaction nor was it a party to the execution of the policies. The mistake, as related to the bank, was made by third parties. Not only does the evidence satisfy us that there was no such negligence as will deny reformation but also there is no finding of negligence or any finding from which inexcusable action or any willful or fraudulent act, on plaintiff’s part can be said to exist.

Melis v. Veritas S.S. Co.

In this action for personal injuries sustained by plaintiff while working in a hold of the S.S. Shinnecock Bay, which was moored at a pier in Brooklyn, New York, plaintiff moves for an order directing defendants (1) to furnish plaintiff with copies of certain medical reports, and (2) to permit plaintiff, his attorneys, engineers, architects, draftsmen and other employees and photographers, to examine and photograph the hold in the vessel where plaintiff fell and was injured and adjacent parts to the said hold. Defendants having delivered copies of the medical reports prior to the return date of the motion, this phase of the motion has been withdrawn. [See Zeigler v. Carley]

Defendant Veritas Steamship Company, Inc., the owner of the vessel, opposes plaintiff’s application for the unlimited right to take photographs aboard the vessel, alleging that it is now in moth balls at Baltimore, Maryland. Defendant states that it will consent to the discovery and inspection subject to certain conditions which will be disposed of seriatim.

1. Defendant urges that plaintiff, his attorney and any surveyor or photographer employed by plaintiff or his counsel, execute the alleged customary waivers of liability releasing defendant from liability for injuries sustained while on the vessel. In support of its claim that it is entitled to such waivers of liability, defendant in its brief refers to two unpublished orders of the United States District Court, Southern District of New York, where such a condition was imposed. Research has failed to disclose any discussion of this problem by any state court. The only reported case which discusses the two instances referred to by defendant is Hindle v. National Bulk Carriers, where the court stated:

Plaintiff seeks permission to board defendant’s ship in order to take photographs and measurements of the area of the alleged occurrence of the accident which is the subject of the action. Defendant consents to this request but conditions its consent upon the demand that each person boarding the vessel pursuant to it deliver to defendant a general waiver of liability. Plaintiff resists the imposition of this condition.

Defendant says that it is entitled to the waivers and cites orders made by Judge Learned Hand and Judge Edelstein in Jankevics v. Pope & Talbot, Inc. in support of its contention. It is noteworthy that, in Gimenes v. New York & Porto Rico S. S. Co., Judge Woolsey carefully considered the problem of inspection of ships by hostile litigants, he laid down many conditions but waiver of liability was not among them. Each of the orders of Judge Learned Hand and Judge Edelstein makes delivery of a waiver a condition of boarding. It does not appear, however, from defendant’s papers whether the plaintiff, in the first case, or the libellants, in the second case, opposed the ships’ imposition of this condition. It has been my experience that plaintiffs usually acquiesce.

Defendant argues further that since persons coming aboard its vessel pursuant to an order permitting boarding in aid of discovery would be doing so on their own business and not that of the vessel, the owner of the vessel is entitled to protection by way of a waiver of liability. I cannot agree. It is unnecessary to determine now the exact extent of the duty, if any, owed by the ship to persons who come aboard for the purpose of obtaining evidence pursuant to court authority. The extent of that duty, whatever it is, is fixed by law. The ship, by permitting access, is not doing a favor and is in no position to stipulate that, in the event of accident, it shall receive treatment more favorable than that to which it would be entitled by law.

This court is persuaded by the reasoning of Mr. Justice Dimock in the Hindle case and, accordingly, the request for the imposition of this condition is denied.

2. The inspection and photographing must take place at a time to be fixed in the order.

3. The sailing of the vessel shall not be delayed by the taking of photographs. If defendant intends to place the vessel in active service, it shall give to plaintiff at least 60 days’ notice before sailing.

4. Plaintiff shall take photographs of Hold No. 1 and the area immediately adjacent to the said hold. The purposes for which the photographs may be used are to be determined by the trial court.

5. Defendant has not shown how it would be prejudiced if the inspection and photographing of the vessel were delayed until July, 1960, as requested by plaintiff. Accordingly, plaintiff is allowed until July 15, 1960, to make the inspection and take the photographs, on a date to be fixed in the order.

6. Plaintiff, one attorney and no more than three other persons on behalf of plaintiff may participate in the inspection and photographing.

7. There is no merit to plaintiff’s contention that the defendants should pay the cost of transporting and housing plaintiff, his attorney and other persons, who will go to Baltimore to make the inspection.

Settle order on notice.

Melis v. Veritas S.S. Co., 197 N.Y.S.2d 268, 23 Misc.2d 45 (N.Y.Sup. 1960).

Provision Binds Insurer to Pay Loss Under the Policy

This provision expressly binds the insurer to pay a loss under the policy to the mortgagee under its mortgage ‘upon the property herein described in which the aforesaid may have an interest as mortgagee. No reference is made that title to the property must be properly stated in the policy. Neither is anything written into this clause to indicate it was within the contemplation of the contract that it be void or could be avoided as to the mortgagee in such event. It is also clear from the above clause that the risk of the defendant companies as well as the mortgagees’ interest were not affected by the status of the title. The fact that the plaintiff bank was an interested party as mortgagee and that Gerald M. Rafoul was the mortgagor of the premises insured was known to the Peck Agency at all times. Particularly, it had this knowledge beginning in March 1960 when it covered the property with fire insurance for the purchaser and owner, Gerald M. Rafoul. The amount of fire loss has been agreed to by the parties.

By its decree the court ordered reformation and that the fire loss be paid to Burlington Savings Bank and North Star Corporation. The policies issued by defendants were valid and in full force at the time the loss occurred. This places the defendants in the position of a stakeholder, having money in its hands which it owes to somebody. To say that the defendants under the circumstances shown may evade responsibility under their insurance policies would be unconscionable in the eyes of equity. It will not stand idly by and not invoke relief. Under their contract expressed in the mortgage clause, the insurance companies are obligated to pay the loss as decreed by the chancellor. For this reason in addition to what we have already noted there is no error in the decree.

Decree affirmed.

Plaintiff Concedes Didn’t Acquire Interest in Disputed Parcels

By pre-trial stipulation the plaintiff conceded that it had never acquired any interest in either of these parcels prior to the time they were taken by the defendant. It was further conceded that there are no defined streams flowing from these lands. However, the plaintiff claims compensation for the loss of surface water which heretofore flowed from the combined 5.8 acres to supply its reservoir.

The plaintiff also maintains that its charter conferred upon it the authority to condemn these lands for the purpose of acquiring additional water supply. Although this power has never been exercised, the city claims the seizure of these lands deprived the water department of its inchoate right to later condemn these lands thereby imposing a compensable loss within the highway condemnation law.

The court below dismissed both aspects of the city’s claim and passed the question for review before final judgment.

A condemnation proceeding to appropriate property for a public use is essentially an action in rem. The power of eminent domain acts upon the land itself. Ordinarily an unqualified taking in fee by eminent domain takes all interests and as it takes the res is not called upon to specify the interests that happen to exist. Whether or not for some purposes the new takers may be given the benefit of privity with the former holders, the accurate view would seem to be that such an exercise of eminent domain founds a new title and extinguishes all previous rights.

Support for Dismissal of Claim in Takings Case

The defendant offers support for the dismissal of the claim on the strength of our law regarding percolating waters, stated in White River Chair Co. v. Connecticut Power Co., and it is well established in this jurisdiction that there are no correlative rights in percolating waters between adjacent landowners. From this rule of law, the highway board advocates that the loss of percolating waters does not constitute a taking when the loss is caused by highway construction on adjacent property owned by the state.

The rule upon which the defendant relies is founded upon two principle considerations. First is the right of the owner of the soil to have free and unlimited right to take and use all that it contains including water that percolates in and through the ground, without regard to its effect on drainage from adjacent land holdings. The second consideration is the secret, changeable and uncontrollable character of underground water–that we cannot well subject it to the regulation of law nor build upon it a system of rules as is done in the case of surface streams.

But the defendant highway board in the exercise of its power of eminent domain is not an adjacent landowner in the usual or customary sense. It enters upon the private owner’s premises in invitum, as a delegate of the sovereign state. The right of eminent domain confided to the board must be exercised within the prescript of constitutional and statutory requirements.

Chapter I, Article 2nd of the Vermont Constitution requires ‘Whenever any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.’ In state highway construction, the Legislature has translated this to mean the value of the property or right taken and the direct and proximate lessening in the value of the remaining property.

Thus if the highway construction resulted in the destruction of the water supply in the well and this result produced a lessening in the value of the remaining property, the loss is compensable. Perhaps this will present problems in proof in establishing a causal connection between the loss of the field well and the highway construction. Nonetheless, if substantial evidence is brought forth to satisfy the triers of the fact that the loss of the property right was caused by the taking of the land for highway purposes, the consequential damage is recoverable.

Action for Conversion and Trover

Following these events, this action for conversion was brought. The facts thus stated are taken from the evidence presented in support of the plaintiff’s claim. The jury discharged the defendants Pierce and Carpenter from liability, and fixed responsibility on Costes Economou alone. Since he is the sole appellant, we refer to him as the defendant. His appeal assigns error to the denial of his motion for a directed verdict and to the court’s refusal to enter judgment in his favor notwithstanding the verdict against him. The appeal also challenges the instructions to the jury by way of the appellant’s exception to the court’s failure to charge that conversion in the sense of the law of trover involves something equivalent to an affirmative act as contrasted with a mere nonfeasance and further excepts to the Court’s failure to give the jury a definition of the meaning of an affirmative act and nonfeasance.

The errors claimed are related. The motion for a directed verdict and for judgment non obstante veredicto are similarly directed to the proposition that the evidence fails to show any affirmative act on the part of the defendant Costes Economou legally capable of rendering him liable for conversion of the plaintiff’s property.

The gist of the action of conversion was stated by Chief Justice Rowell in C. H. Eddy & Co. v. Field. The opinion states in the sense of the law of trover a conversion consists either in the appropriation of the property to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it is exclusion or defiance of the owner’s right, or in withholding possession from the owner under a claim of title inconsistent with his title. These essentials have been frequently restated in varied cases that have followed, including those upon which the defendant relies.

These cases stress the importance of an overt act but dominion may be exercised over the property of another in exclusion and defiance of the owner’s right to possession although he does nothing more than detain the property against the rightful owner’s demand. It is more appropriate to say–that with the exception of conversion by demand and refusal, liability for conversion requires that the defendant commit an overt act in reference to the subject property.

Here the evidence establishes that the defendant obtained possession of the plaintiff’s property by bailment. Possession, lawfully acquired, may develop into a wrongful detention if the bailee makes an unqualified refusal to deliver the property on demand of the person legally entitled to its possession.

Court Holds That Contributory Negligence is Affirmative Defense

Contributory negligence is an affirmative defense which must be established by the one pleading it, as in any other affirmative defense which must be pleaded under the statute. The burden of proof is upon the defendant.

The defendant is also correct in the contention that the court erred in its charge to the jury on the question of damages by the statement that it must then consider the damages in this case for the medical bills of the plaintiff. There being no evidence in the case that the plaintiff had any medical bills such non-existent medical bills were not in issue for the consideration of the jury. Error also existed in the charge to the jury relative to the qualifications of a police officer as an expert that ‘the first question you must decide is whether he (the police officer) has qualified in your opinion as an expert.’ The question of the competency of an expert witness is always a preliminary one for the trial court to determine in its sound discretion. While it may well be that some of the errors in the charge above noted, were not prejudicial to the defendant and hence not ground for reversal, we think consideration of this question is not necessary in light of the next briefed exception to the charge.

It will be recalled that the evidence was that the car of the defendant was stopped on the traveled portion of the highway at the time of the accident. Defendant in his Request for Charge to Jury, No. 5, requested the court to charge: The mere stopping of a motor vehicle on the traveled way does not constitute negligence unless this is the approximate cause of the accident.

This request was refused by the court below, and defendant excepted. The court did charge, the law is also clear that a person shall not stop or park a motor vehicle he is operating, whether attended or unattended, upon the paved or improved or the used part of any highway so as to interfere with traffic on such highway.

Although the court later charged that breach of a safety statute makes at least a prima facie case of negligence and gives rise at least to a rebuttable presumption of lack of ordinary care, the jury was never informed that the law applicable to stopping or parking a car on the highway was one of the safety statutes.

Defendant Found Guilty, Moves for JNOV

The first claim of error made here by the defendant is that the evidence below proved the plaintiff guilty of contributory negligence as a matter of law and that his motion for a judgment in his favor notwithstanding the verdict was wrongfully denied. A motion for judgment notwithstanding the verdict is tantamount to a motion for a directed verdict and is to be passed upon in the same way. The evidence must be taken in the light most favorable to the plaintiff and the effect of modifying evidence is to be excluded. The evidence, so viewed, presents the following factual situation relative to the collision between the parties. The plaintiff was traveling along the highway from his place of employment in Barre, to his home in Chellsea, on the night of September 13, 1961. He entered the Town of Washington a little after 11 P.M. traveling at a speed of 40-45 miles per hour.

As he came over a slight rise in the highway he saw headlights facing in his direction in the opposite lane of the highway on which he was traveling, about 250 feet away. He let up on the throttle, flicked his headlights, and continued on his course.

The headlights that plaintiff saw were on the vehicle of the defendant. The defendant, having left a friend at the friend’s house, had backed out on to the highway, which was curved at that point, brought his car to a stop before proceeding back toward Barre. Defendant’s vehicle was in a diagonal position on the curve in the highway so that while his headlights shone down his own lane of travel, a part of his vehicle was actually across the lane being traveled by the plaintiff, in a diagonal position.