![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
By Jennifer F. Hillman
The phrase “tangible personal property” is a term of art frequently utilized by estate practitioners when drafting documents. However, what is, and what is not tangible personal property is not always clear. A recent case, In re Rothschild, N.Y.L.J., October 28, 2014, at 22 (Sur. Ct Bronx County) looked at precisely this issue in the context of a collection of stamps and coins.
Before the court was a motion for summary judgment seeking a determination that the collection was specifically bequeathed pursuant to Article II of the Decedent’s will. The executor opposed the application and maintained the items were part of the residuary estate. Specifically, the will stated that decedent gave:
All of my tangible personal property (other than currency) including without limitation, wearing apparel, personal effects, jewelry, furniture, furnishings, pictures, paintings and other objects of art, silver, china, glassware and other household effects, books and automobiles.
Each side set forth its own interpretation of the provision including reliance upon Black’s Law Dictionary definitions and the New York State Tax Law.
Upon review, the Bronx County Surrogate’s Court noted that “tangible personal property” embracing the word “personal effects” is generally construed as limited to tangible property with an intimate relation to and used by the testator on a daily basis. The Court found the language was not all-encompassing, but only meant to encompass household items. The Court may have also taken into consideration the specific carve-out in the provision for currency, as well as the fact that the items were hidden away from view and not enjoyed on a daily or frequent basis. Thus, the stamp and coin collection passed pursuant to the residuary clause.
This decision is particularly interesting because the attorney-drafter’s inclusive list of the types of personal property specifically bequeathed assisted the Court in its determination. Often a Will simply states “tangible personal property” without any further qualifier. Here, the additional language was determinative in the Court’s decision that the items at issue were not included as part of the bequeathed tangible personal property.
As this case suggests, when drafting documents, practitioners must obtain a full outstanding of the testator’s wishes with respect to all tangible personal property. A more in-depth discussion with clients could elicit a different result or carve-outs from the standard “tangible personal property” language. Through these discussions, practitioners can determine whether additional qualifiers or carve-outs are necessary to effectuate a client’s wishes.
Jennifer F. Hillman is partner at the law firm of Ruskin Moscou Faltischek, P.C. in Uniondale, New York, where her practice is focused on trusts and estates litigation. She can be reached at firstname.lastname@example.org.
What if everything you say is true and I was taken advantage of by my brother and his attorneys and the creditors.since I was devised and bequeathed the estate under the will and my brother not only was the executor he co-signed or co borrower of the Fannie Mae Freddie Mac uniform instrument motgage and the Ryder and the promissory note.But the estate ended up after I paid 9 years of the mortgage of a 15 year mortgage it was hit by a car and the year before my brother used the money I paid for a release of a lien for the lien and his attorney fees and transfer of the deed when all dears and taxes where not paid and the house went into default and then foreclosure ad sold at a referee auction for 68 thousand when the house was worth much more than that.