Opinion
3157-A/2004.
Decided March 31, 2011.
In this proceeding, the executor of this estate, Jacquelyn Robinson, has requested a determination as to whether portions of the decedent's will violate the rule against perpetuities (EPTL 9-1.1).
The decedent's will was admitted to probate in this court on December 23, 2008 and disposes of numerous pieces of real property to various family members. The executor has requested a determination as to whether Paragraph (2) and Paragraph (5) violate the rule against perpetuities. Paragraphs (2) and (5) provide the following:
"(2)My home at 701 MacDonough Street must not be sold. This home at 701 MacDonough Street in Brooklyn, New York 11223, I give to my niece Jacqueline Elaine Robinson and her immediate family. It is my wish and order that Wang Resardo be allowed to live in one room on the first or second floor, rent free, at my home at 701 MacDonough Street, Brooklyn, New York 11233. I wish to help Wang Resardo because of his health condition.
(5)My property at 1142 Flatbush Avenue, must not be sold. It should be used as business location for my immediate family; by this I mean Jacquelyn Robinson and Etty Burton, who lives in Jamaica, and Edna Hunter who lives in England."
The court notes that Wang Rosardo, Etty Burton and Edna Hunter predeceased the decedent.
The rule against perpetuities and restraint on alienation were developed as a result of the public policy in support of free transfer of property without restrictions by the living on ownership of property by posterity ( Witt v Disque, 79 AD2d 419 [2d Dept 1981]). "The rule against perpetuities limits the power of an owner to create future interests, whereas the rule against restraint on alienation prohibits the owner from creating provisions blocking his grantee from disposing of the property" ( Witt v Disque, 79 AD2d 419 [2d Dept 1981]). The reasonableness of the limitation depends upon its duration, price and purpose ( Wildenstein Co., Inc v. Wallis, 79 NY2d 641).
It is clear from the legacies enunciated above that the restraints on the real property specified above are unreasonable. The restraint has no limit on its duration, nor is there any real purpose specified for the unlimited restriction. While one might surmise that the decedent may have wished to ensure a life estate for the legacy to Wang Resardo in the second paragraph of the will and inartfully drafted the provision therein in an attempt to do so, an unlimited restriction of the transfer of the real property was unnecessary. The restrictions and provisions of the fifth paragraph neither guarantees a life estate nor transfers fee simple interest of the subject property. In fact, it conveys nothing and the restriction on the sale is entirely unnecessary.
Based upon a review of the record, this court finds that the restraint on the sale of the real property listed in Paragraphs (2) and (5) violates the common law rule against unreasonable restraint on alienation and is therefore invalid ( see Matter of Schwartz, 30 Misc 2d 814 [Sur Ct, Kings County, 1961]). Accordingly, the following sentence shall be excised from Paragraph (2): "My home at 701 MacDonough Street must not be sold". Moreover, the court finds that all of the language in Paragraph (5) limiting the use and alienation of the real property located at 1142 Flatbush Avenue is without effect and interpreted merely as precatory. The executor shall execute a deed transferring the property listed in Paragraph (2) to the legatees listed therein. The real property listed in Paragraph (5) shall be disposed of pursuant to the residuary clause of the decedent's will.
The guardian ad litem has submitted his report and affirmation of legal services. After a careful review of the papers submitted in support of the request for counsel fees, as well as the factors to be considered in the fixation of such fees ( Matter of Morris , 57 AD3d 674 [2d Dept 2008]), the Court fixes the fair and reasonable value of the legal services of the guardian ad litem in the amount of $_____________________.
Settle order.