Summary
In Matter of Milbank (49 A.D.2d 848), we held that SCPA 2102 (5) empowers the Surrogate with the discretion to authorize an advance payment against a claimed beneficial interest in an estate, even when the question of spousal status is at issue, provided that the claimant is willing to post a full refunding bond. Upon consideration of all the facts and circumstances attending this matter, including the substantial size of the estate, and the receipt of advances by all four children, we are persuaded that petitioner's application should similarly have been granted.
Summary of this case from Matter of GoldmanOpinion
October 21, 1975
Order, Surrogate's Court, New York County, entered on April 3, 1975, directing respondent executors to pay to petitioner the sum of $2,000 per week as an advance against her inheritance, unanimously modified, on the facts and in the exercise of discretion, to the extent of reducing said sum to $400 per week, and otherwise affirmed, without costs and without disbursements. The petitioner and her now deceased husband were married on September 21, 1972 and separated, childless, in June, 1973. He died on October 31, 1974, after having commenced an action against petitioner for divorce or separation, but before resolution of the issues raised therein. In that aborted action petitioner had been awarded temporary alimony of $400 per week. We agree with the Surrogate's Court that SCPA 2102 (subd 5) empowered it to "in its discretion authorize an advance payment, when the question of status is at issue, at least where the alleged surviving spouse is willing to post a refunding bond". We cannot, however, find justification in this record for the exorbitant amount awarded. We believe that, on this record, as summarized above, an advance in the sum of $400 a week is appropriate.
Concur — Kupferman, J.P., Murphy, Tilzer, Capozzoli and Lane, JJ. [ 83 Misc.2d 716.]