This is the will of New York billionaire
real estate magnate Harry B. Helmsley,
who died Jan. 4, 1997, leaving an
estate estimated at $1.7 billion.
Except for a bequest to his secretary,
Helmsley left his estate to his wife,
Leona Helmsley, who is also named
as executor of the will. His holdings
included the Empire State Building
and some of New York City's most posh
hotels.
At Chambers of the Surrogate's Court
of the State of New York, held in and
for the County of New York, at the Courthouse.
New York on January, 1997
PRESENT:
HON. Eve Preminger
Surrogate
Probate proceeding, Will of
HARRY B. HELMSLEY
Deceased.
DECREE GRANTING PROBATE
File No. 85-97
SATISFACTORY PROOF having been made
that jurisdiction has been obtained
of all necessary parties and that
all necessary notice has been given;
AND the witnesses to said last Will
bearing date - January 25, 1994 -
having been sworn and examined, their
examination having been reduced to
writing and filed, or their affidavits
having been filed, and it appearing
by such proof that said Will was duly
executed, and that the Testator at
the time of executing it was in all
respects competent to make A will,
and not under restraint, and the Court
being satisfied of the genuineness
of the said will of Harry B. Helmsley
and the validity of its execution;
IT IS ORDERED, ADJUDGED AND DECREED,
that the instrument offered for probate
herein be, and the same hereby is,
admitted to probate as the Will of
said Harry B. Helmsley, deceased,
valid to pass real and personal property,
and that the said will and this decree
be recorded, and that letters testamentary
be issued to the executrix and, who
may qualify thereunder.
/s/
Eve Preminger Surrogate
SURROGATE'S COURT OF THE STATE OF
NEW YORK COUNTY OF NEW YORK
PROBATE PROCEEDING, Will of
HARRY B. HELMSLEY
Deceased.
AFFIDAVIT OF COMPARISON (Note: Attach
a copy of the Will/Codicil to this
Affidavit of Comparison executed by
any two persons; if a photocopy of
the will is used, only one person
need make the affidavit.)
File No.
STATE OF NEW YORK ) COUNTY OF NEW
YORK ) ss.:
I/We Teresa M. Ryan (and) Lynne
B. Brown being duly sworn, say, that
he/she has carefully compared the
copy of decedent's Will/Codicil propounded
herein to which this affidavit is
annexed with the original Will dated
the 25th day of January, 1994, about
to be filed for probate, and that
the same is in all respects a true
and correct copy of said original
Will and of the whole thereof.
Sworn to before me this 9th day
of January, 1997
/s/ Notary Public Commission Expires:
7/30/97 (Affix Notary Stamp or Seal)
/s/ Teresa M. Ryan
/s/ Lynne S. Brown
LAST WILL AND TESTAMENT OF HARRY
B. HELMSLEY
I, HARRY B. HELMSLEY, do make this
Will, hereby revoking all wills and
codicils previously made by me. Any
reference to my Will shall include
any codicil thereto. I direct that
my remains be interred at the Helmsley
Mausoleum at Woodlawn Cemetery, The
Bronx, New York. I further direct
that permission be granted as the
need arises for the interment in the
Helmsley Mausoleum of the remains
of my wife, LEONA M. HELMSLEY ("my
wife"), her brother, ALVIN ROSENTHAL,
and her brother's wife, SUSAN ROSENTHAL,
but for no other person.
ARTICLE FIRST: TAXES AND EXPENSES
I direct that all my funeral expenses
and the expenses of my last illness
be paid from my estate. I further
direct that my Executor pay as administration
expenses out of my residuary estate,
without apportionment, all estate,
inheritance and similar taxes (which
term shall include interest and penalties
thereon) imposed by the United States
of America or any state or subdivision
thereof with respect to my property
passing under this Will and any administration
expenses, fees, commissions and expenses
incurred in any ancillary proceeding
(and I authorize them in their discretion
to pay any such taxes and expenses
imposed by or incurred in any foreign
jurisdiction). Any such taxes imposed
on property not passing under this
Will shall be paid in the manner provided
by Section 2-1.8 of the New York Estates,
Powers and Trusts Law ("EPTL"). Any
such taxes imposed as a result of
chapter 13 of the Internal Revenue
Code of 1986, as amended (hereinafter
referred to as the "Code") or a corresponding
provision of state law, shall be apportioned
in accordance with applicable law.
ARTICLE SECOND: RESIDENCES
(A) I devise all residential real
property and any interests in such
real property (including condominiums),
wherever situated, which I may own
and maintain as a residence at the
time of my death, together with all
insurance policies thereon, to my
wife, if she shall survive me.
(B) I devise and bequeath any interest
which I may own at the time of my
death in any cooperative apartment
which I maintain as a residence, including,
but without limitation, any securities
of any corporation owning the building
in which such apartment is located
and any lease or other agreement with
such corporation covering such apartment
which I may own or hold at the time
of my death, together with all insurance
policies thereon, to my wife, if she
shall survive me.
(C) If my wife shall not survive
me, I direct my Executors to sell
the property described in this Article
and add the proceeds to my residuary
estate.
ARTICLE THIRD: PERSONAL EFFECTS
I bequeath all furniture, furnishings,
pictures, books, silver, linen, china,
glassware, wearing apparel, jewelry,
and other personal and household effects
(including antiques, works of art
and other collectibles) and all automobiles
which I may own at the time of my
death to my wife, if she shall survive
me. If my wife shall not survive me,
I direct my Executors to sell such
property and add the proceeds to my
residuary estate.
ARTICLE FOURTH: GENERAL LEGACIES
(A) I leave to my secretary, CEIL
FRIED, if she shall survive me, the
sum of TWENTY-FIVE THOUSAND DOLLARS
($25,000).
(B) If my wife does not survive
me, I give to each of the individuals
named below who survives me and who
is employed at my death by me or by
any corporation or partnership of
which I am then a substantial owner,
the sum set forth next to his name:
(1) To EDWARD BRADY, the sum of
TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000).
(2) To BARBARA EVANS, the sum of
TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000). For purposes of this Section,
I shall be deemed to own all property
held in any trust of which I was a
settlor or of which I am a beneficiary
at my death. The determination of
my Executor concerning the application
of this Section shall be conclusive
on all affected persons.
ARTICLE FIFTH: CHARITABLE PLEDGES
If my wife does not survive me,
I direct that all legally enforceable
pledges and commitments for charitable
purposes or to charitable organizations
made by me and/or by my wife, to the
extent outstanding at my death, shall
be paid as enforceable unsecured obligations
of my estate.
ARTICLE SIXTH RESIDUARY ESTATE
My "residuary estate" is the balance
of my estate, whether real or personal,
and wherever located (including lapsed
legacies and devises). My residuary
estate shall be disposed of as provided
in this Article. I hereby exercise
the power of appointment provided
to me under Article THIRD of the trust
established by me under an instrument
dated September 13, 1989 (the "Revocable
Trust") to the extent only that if
my wife, LEONA M. HELMSLEY, shall
survive me, I appoint to my Executor,
to be disposed of in accordance with
this Will, such amounts out of the
Revocable Trust as my Executor shall
demand as being required for the satisfaction
of the provisions contained in this
Will for which my estate is otherwise
insufficient, and except as so demanded,
I decline to exercise such power.
I do not intend, by this Article or
by any other provision of this Will,
to exercise any powers of appointment
I may have except as expressly provided
herein.
(A) If my wife survives me, I give
my residuary estate to her.
(B) If my wife does not survive
me, I give my residuary estate to
the trustees of THE HARRY AND LEONA
HELMSLEY CHARITABLE TRUST, and I direct
the trustees of THE HARRY AND LEONA
HELMSLEY CHARITABLE TRUST to add the
same to the principal of THE HARRY
AND LEONA HELMSLEY CHARITABLE TRUST
and dispose of the same for charitable
purposes in accordance with the provisions
of that Trust Agreement.
ARTICLE SEVENTH: SURVIVORSHIP
If my wife and I die under such
circumstances that it is difficult
or impossible to determine which one
of us survived the other, then my
wife shall be deemed to have survived
me for all purposes of this Will.
If any other beneficiary under this
Will and I die under such circumstances
that it is difficult or impossible
to determine which one of us survived
the other, then such person shall
be deemed to have predeceased me for
all purposes of this Will.
ARTICLE EIGHTH: TAX ELECTIONS
I authorize my Executor (a) to elect
to value my gross estate for state
or Federal estate tax purposes as
of the date of my death or as of the
alternate valuation date or dates
as allowed for such purposes, (b)
to make any other elections permitted
under state or Federal estate tax
law with respect to valuation of assets,
income tax basis of property or deferral
of payment of estate taxes, and (c)
to claim as income tax deductions
expenses that would otherwise qualify
as estate tax deductions, in each
case without obligation to make any
adjustment or apportionment with respect
thereto; provided, however, that my
Executor shall make or refrain from
making any adjustment which, but for
this provision, would be required
by applicable law, in such manner
as will maximize the deductions allowable
to my estate under Sections 2055 and
2056 of the Code.
ARTICLE NINTH: FIDUCIARY POWERS
AND PROVISIONS
(A) Without limitation of the powers
conferred upon them by statute or
general rules of law, my fiduciaries
are specifically authorized and empowered
with respect to any property held
by them:
(1) To retain any property owned
by me at the time of my death irrespective
of the proportion of the total assets
of my estate which such property or
property of a similar character, so
held, may represent;
(2) To sell (at public or private
sale, without application to any court)
or otherwise dispose of any property,
real or personal, for cash or upon
credit of any duration and to grant
options for the purchase of any property,
with or without consideration and
without any limitation on the period
of any such option, in such manner
and on such terms and conditions as
they may deem best, and no person
dealing with them shall be bound to
see to the application of any moneys
paid; and without limiting the generality
of the foregoing, if it becomes advisable
at any time in order to sell any securities
held by them to register the same
under the Securities Act of 1933 or
any similar Federal law or to register
or qualify any such securities for
sale under state securities law, I
authorize my fiduciaries to do all
acts which they may deem advisable
for that purpose, including without
limitation, to enter into any agreements
with underwriters and with the corporation
securities of which are being sold,
which they shall deem advisable, to
make such representations and warranties,
assume such obligations and engage
in such undertakings of indemnity
as they may deem proper (or to make
such other arrangements concerning
the same, including without limitation
the purchase of an insurance policy
or policies, charging the cost thereof
to the principal of my estate), to
create escrows, to enter into custody
agreements, and in any case in which
it becomes advisable for them to enter
into any agreement containing representations
or undertakings which, but for qualifying
terms of the agreement, would render
them personally liable therefor, at
their option, to enter into and execute
any such agreement in their fiduciary
capacities only and not individually,
in which case, if the terms of the
applicable agreement so provide, the
representations and undertakings shall
be binding upon my estate, but shall
not be binding upon them personally;
and, further, without limiting the
generality of any of the foregoing,
I expressly authorize my Executors,
if and to the extent they deem it
advisable under any provision of the
Federal tax statutes, to deliver such
part of any securities which I may
own at the time of my death as they
may deem advisable to the issuing
company for redemption against payment
of a redemption price satisfactory
to my Executors and upon terms approved
by them;
(3) To invest in and to retain and
hold (including the retention of any
such property owned, beneficially
or of record, by me at the time of
my death) securities of HELMSLEY ENTERPRISES,
INC. (such corporation being herein
called the "Corporation") or of any
corporation or other business entity
(hereinafter referred to as a "Successor
Corporation") into or with which the
Corporation or any Successor Corporation
shall be merged or consolidated or
to which part or all of the assets
of the Corporation or any Successor
Corporation may be transferred, or
of any corporation or other business
entity (hereinafter referred to as
a "Related Corporation") which controls,
is controlled by, or is under common
control with the Corporation or any
Successor Corporation irrespective
of the proportion of the total assets
of my estate which such investment
may represent and irrespective of
the fact that one or more of my fiduciaries
may be a director or an officer of
or otherwise connected with any of
such corporations; and my fiduciaries
shall not be liable or responsible
for any loss, either of income or
of capital value, incurred by reason
of their retention of securities of
the Corporation or of any Successor
or Related Corporation, and shall
have no duty to investigate the underlying
assets of any of such corporations
or to seek other information regarding
any of such corporations;
(4) To continue or to permit the
continuation of any business, incorporated
or unincorporated, which I may own
or in which I may have any interest
at the time of my death, for such
period as they shall deem advisable
including, without limitation, the
power to organize a corporation (or
a partnership) to carry on such business,
by themselves or with others, to contribute
all or part of the property of said
business as capital to such corporation
(or partnership) and to accept stock
in such corporation (or an interest
in such partnership) in payment thereof,
and to hold such stock (or partnership
interest) for such period as they
shall deem advisable; and without
limiting the generality of the foregoing,
my fiduciaries are authorized to invest
additional sums in any such business
(notwithstanding that my estate may
be invested largely in such business),
to act as or to select other persons
to act as directors, officers or other
employees for partners) of any such
business, and to make such other arrangements
and exercise such powers in respect
thereof as they shall deem advisable;
and, if they shall deem it advisable,
to liquidate all or any part of any
such business in such manner and upon
such terms as they in their discretion
shall determine, all without application
to any court; and I designate my wife,
if living, or otherwise my Executors,
or an individual designated by my
Executors, as successor to me as a
member of any partnership in which
I have an interest at my death;
(5) To manage any real property
at any time forming part of my estate
in the same manner as if they were
the absolute owners thereof, including
without limitation, the power from
time to time to lease the same, without
application to any court, for any
term of ten years or more or less,
although such term may extend beyond
the period of the administration of
my estate, with options for renewals
and the purchase or disposal of buildings
thereon or to be placed thereon; to
make ordinary and extraordinary repairs
and alterations to any building, to
raze old buildings and to erect new
buildings and make other improvements;
to insure against loss by fire or
other casualties; to subdivide and
plot any such property; to refrain
from paying taxes and maintenance
charges thereon and to convey any
such property for nominal consideration
or to abandon same, all as they shall
deem advisable; to partition any such
property held by them or in which
they hold an interest, even though
one or more of them may hold an interest
in the same property in his own right
or in some other capacity; to give
or receive money for equality of partition;
to extend any existing mortgage or
mortgages; to borrow upon the security
of any such property, and to execute
a mortgage or mortgages as security
therefor; and to determine whether
or not to establish any reasonable
reserves for depreciation of any buildings
or improvements thereon;
(6) To vote on any securities by
discretionary proxy or otherwise;
to deposit any property with voting
trustees or protective or similar
committees, to delegate to them discretionary
power, to pay a share of their expense
and compensation, and to pay any assessment
levied with respect to any such property
or securities; and to consent, or
to decline to consent, to the election
(including any that is in effect at
my death) by any corporation to be
taxed under subchapter S of the Code;
(7) To retain as an investment any
interest which I may have in any partnership,
and to perform each and every condition,
provision or agreement affecting my
estate contained in any partnership
agreement existing at the time of
my death to which I am party; to enter
into new partnership agreements and
to retain an interest whether as a
general partner, limited partner or
otherwise in any successor partnership
for such period of time as they shall
deem advisable; to purchase any property,
real or personal, or an undivided
interest in any property from any
such partnership as an investment;
to determine the manner and degree
of their participation in the business
of such partnership; to contribute
to the capital of such partnership;
to make loans to such partnership;
to assume obligations arising from
or in connection with such partnership;
and to pledge assets of my estate
as collateral for any borrowing of
such partnership; and in receiving
any payment in liquidation or partial
liquidation of my interest in any
partnership, to accept cash, securities
or other property, including an undivided
interest in any property;
(8) To abandon such property, real
or personal, as they shall deem advisable,
or to dispose of same without consideration
or for nominal consideration; to extend
the time for, or modify the terms
of, payment of any claim or obligation,
and to abandon, compromise, settle,
renew, release, adjust or submit to
arbitration upon such terms as they
shall deem advisable any claim or
obligation, in each case without application
to any court;
(9) To lend or borrow such amounts,
to or from such persons, upon such
terms and conditions and for such
purposes as they may deem advisable
and to pledge assets of my estate
to secure the repayment of any amounts
so borrowed; provided that all loans
shall be made at a reasonable rate
of interest and further provided,
that my fiduciaries shall be prohibited
from making any loans to any beneficiary
of my estate (other than my wife);
(10) Except to the extent prohibited
by law, to delegate in whole or in
part, to any agent or agents (who
may be one or more of my fiduciaries),
any of the powers granted to my fiduciaries,
including but not limited to the authority
and power to (a) sign checks, drafts
or orders for the payment or withdrawal
of funds from any account in which
funds of my estate shall be deposited,
(b) endorse for sale, transfer or
delivery, or sell, transfer or deliver,
or purchase or otherwise acquire,
any and all stocks, bonds or other
securities or any other property whatsoever
and (c) gain access to any safe deposit
box or boxes in which assets of my
estate may be located or which may
be in the names of my fiduciaries
and remove part or all of the contents
of any such safe deposit box or boxes
and release and surrender the same;
(11) Except to the extent prohibited
by law, to cause any securities to
be registered in the names of their
nominees, or to hold any securities
in such condition that they will pass
by delivery;
(12) To employ such attorneys, accountants,
custodians, investment counsel, real
estate consultants and other persons
as they may deem advisable in the
administration of my estate, and to
pay them reasonable compensation,
without any diminution of or offset
against the commissions to which my
fiduciaries may be entitled by law
and this Will, notwithstanding that
one or more of my fiduciaries may
be members of, or otherwise connected
with, any of such firms;
(13) To use any securities or brokerage
firm or bank or trust company in the
purchase (but only as authorized herein)
or sale of securities or property
for the account of my estate and to
pay such organization such brokerage
commissions or other compensation
in connection therewith as they may
deem proper, without any diminution
of or offset against the commissions
to which my fiduciaries may be entitled
by law and this Will, notwithstanding
that one or more of my fiduciaries
may be members of, or otherwise connected
with, such organization;
(14) To distribute any part of my
estate in cash or in kind, or partly
in cash and partly in kind, and in
making any such distribution to take
into account such considerations as
they shall deem appropriate, including
without limitation the effect of any
relevant tax laws, it being my intention
that my fiduciaries not be under any
obligation to make pro rata distributions
of the assets of my estate. Any assets
distributed in kind shall be valued
in good faith by my fiduciaries for
the purposes of such distribution
as of the date or dates of any such
distribution (or as near thereto as
may be practicable), and the appreciation
or depreciation in the value of assets
selected for distribution in kind
from my estate to any beneficiary
shall be fairly representative of
the appreciation or depreciation in
the value of all assets in my estate
between the date of my death and the
date or dates of any such distribution
or distributions;
(15) In general, to exercise all
powers in the management of my estate
which any individual could exercise
in the management of similar property
owned in his own right, upon such
terms as to them may seem best, and
to execute and deliver all instruments
and to do all acts which they may
deem necessary or advisable to carry
out the purposes of my Will, and my
fiduciaries shall have no liability
by reason of any action, inaction,
determination or exercise of discretion
taken or made in good faith nor by
reason of any loss sustained as a
result of the purchase, retention,
sale, exchange or other disposition
of any property made in good faith.
(B) No power or discretion granted
to my Executors by this Will or by
law, including, without limitation,
any investment power, shall apply
to any disposition of property hereunder
to my wife or to any charitable organization
(including THE HARRY AND LEONA HELMSLEY
CHARITABLE TRUST) if the authority
to exercise such power or discretion
would affect the availability to my
estate of a Federal estate tax marital
or charitable deduction for such dispositions.
All powers or discretion conferred
on my Executors may be exercised only
in such manner as is consistent with
the allowance of such deductions.
This Section (B) shall be construed
as a precedent (and not as a subsequent)
limitation or condition.
(C) To the extent not prohibited
by law, my Executors shall have the
right to maintain physical possession
of any tangible and intangible property
in my estate in any jurisdiction,
notwithstanding that my Will may have
been probated in another jurisdiction
or that my Executors may have qualified
pursuant to the laws of such other
jurisdiction.
(D) As to each and any corporation,
partnership or other business entity,
public or private, in which my Executors
hold any equity interest exceeding
one percent (1%) of the net value
of such corporation, partnership or
other business entity (each such corporation,
partnership or other business entity
being hereafter referred to as the
"Entity"), my Executors are hereby
authorized to retain the shares thereof
or interest therein for as long as
they deem to be in the best interests
of my estate, regardless of any duty
to diversify investments, and notwithstanding
any other fiduciary obligation which
might require them to dispose of such
shares or interest, other than the
obligation to act with reasonable
care.
In addition, I authorize and empower
my Executors, to the extent permitted
by law, to exercise their rights and
powers as holders of such shares or
interest, to effect the continued
operation of the Entity, or the sale
or other disposition of its assets
or business or, in their sole discretion,
to sell, exchange, offer for redemption
or otherwise dispose of the shares
of or interest in the Entity owned
by my estate, or to effect the liquidation
or dissolution of the Entity, at such
time or times and upon such terms
and conditions as shall, in the opinion
of my Executors, be in the best interests
of my estate.
So long as my Executors continue
to hold any interest in the Entity,
I authorize and empower them to participate
in the management of the Entity to
the extent that their interest therein
enables them to do so, without liability
or responsibility for any loss resulting
from the exercise of the powers hereby
granted, or to delegate their managerial
authority to others, whether by means
of employment agreements or other
arrangements, and they may enter into
voting trusts and grant irrevocable
proxies, as they deem advisable.
Subject to the overriding provisions
of the last paragraph of this Section
(D), I expressly authorize my Executors
to select, vote for and remove directors
of the Entity (if the Entity is a
corporation), to take part in the
management of the Entity and, to the
extent permitted by law, in their
managerial capacity to fix, determine
or change the policy thereof; to name
or change officers, the managing personnel
and/or the operating personnel; to
employ new management; to reduce,
expand, limit or otherwise change
the business or type of merchandise
dealt in or property invested in and
investments held by or product manufactured
by or service rendered by the Entity;
to require the employees and/or the
officers of the Entity to file bonds
for the faithful performance of their
duties; to determine the amount of
the bond or bonds to be secured; to
select the bonding company; to employ
expert outside and disinterested accountants
or engineers to make a full and complete
survey or appraisal of the Entity's
business and its prospects in the
trade; to employ investment or legal
counsel (including any firm with which
an Executor hereunder may be associated)
whenever my Executors shall deem it
advisable; to charge the cost of all
such services against the interest
in the Entity held by my Executors
or to vote or take other action to
require the Entity owning said business
to pay such expense; to contribute
additional working capital or to subscribe
to additional stock as they may see
fit; and to take all steps and perform
all acts which they shall deem necessary
or advisable in connection therewith.
Any one or more of my Executors
may act as officer, partner, director,
manager or employee of the Entity,
and the Executors are specifically
authorized to exercise their rights
inhering in their ownership as Executors
for the election or appointment of
any person or persons, including themselves,
as directors, officers, managers or
the like. Any Executor who serves
as officer, partner, director, manager
or employee of the Entity shall be
entitled to receive compensation for
such services notwithstanding that
my Executors may themselves (whether
individually and/or as Executors hereunder)
be in a position to determine, or
control the determination of, the
amount of such compensation, and I
direct that no such person shall be
required to furnish any bond in connection
with any such employment.
I am aware that conflicts of interest
may arise by reason of service on
the part of my Executors as such and
as officer, partner, director, manager
or employee of the Entity and by reason
of my Executors owning an interest
in the Entity in their own right.
I intend that my Executors shall,
in all respects, be free to exercise
the powers and discretion herein conferred
as fully and unrestrictedly as if
there were no such conflicting interests.
With this thought in mind, I expressly
exempt my Executors from the adverse
operation of any rule of law which
might otherwise apply to them in the
performance of their fiduciary duties
by reason of conflict of interest.
Without limiting the generality of
the foregoing, I specifically direct
that my Executors shall not have any
greater burden of justification in
respect of their acts as Executors
by reason of conflict of interest
than they would have in the absence
of any such conflict.
(E) Notwithstanding anything in
this Article NINTH to the contrary,
my fiduciaries shall be limited, in
the investment of funds held in my
estate, to prerefunded municipal bonds,
if and to the extent they are readily
available, and, to the extent that
they are not readily available, to
United States Treasury obligations,
including Bills, Notes and Bonds,
with any maturity date. These investments
shall be held by a financial institution,
preferably one which does not charge
for such service. This restriction
shall not affect the power of my fiduciaries
to retain and deal with any assets
which I may own at my death or which
my fiduciaries may receive by reason
of my death.
ARTICLE TENTH: FIDUCIARIES
(A) I appoint my wife, LEONA M.
HELMSLEY, as the Executor of this
Will. If my wife fails to qualify
or ceases to act as Executor for any
reason, the Executor shall be any
one or more individuals or corporate
fiduciaries, acting together or in
succession, as my wife shall have
appointed, whether before or after
my death. Any such appointment shall
be made by a written instrument signed
by my wife in accordance with Section
(C) of this Article or by my wife's
Last Will and Testament. If my wife
fails to qualify or ceases to act
as Executor for any reason and no
Executor shall have been effectively
appointed in accordance with this
Section (A), then RAY ACQUADRO, HAROLD
M. HOFFMAN ("HAROLD"), HOWARD W. MUCHNICK
("HOWARD") and SILVANA NANDIN, or
such of them who qualify, shall be
the Executors; provided, however,
that as a condition to HAROLD or HOWARD
serving as Executor, each of them
must agree, in writing, that he will
not retain his legal firm to act as
counsel to my Executors.
(B) I authorize my wife to revoke
or amend, by instrument in writing,
any designation as to any designee
who has not commenced serving. I further
authorize my wife to direct the immediate
resignation of any Executor who shall
have commenced serving and to appoint
successor Executors as provided in
Sections (A) and (C) of this Article.
Any such resignation directed by my
wife shall be effective on the date
stated in the instrument signed by
my wife which shall direct such resignation,
and shall have the effect of a resignation
under Section (F) of this Article,
whether or not such resignation is
acknowledged in writing by such Executor.
Subject to the foregoing paragraph,
I authorize any Executor serving hereunder
from time to time to designate successors
to serve in such office, in the manner
provided in Section (C) of this Article
and to revoke or amend, by instrument
in writing, any designation as to
any designee who has not commenced
serving. Any designation made by my
wife shall take precedence over a
designation made by an Executor other
than my wife.
(C) Any designation authorized by
this Article shall: (1) be in writing,
(2) state the time at which or the
event upon which it is to be effective,
and (3) if more than one successor
is designated, state the order of
succession. If there are inconsistent
instruments of designation, the instrument
that bears the most recent date and
that makes an unrevoked designation
shall govern.
(D) Each Executor shall be entitled
to commissions for receiving and paying
out all sums constituting principal
and income of my estate at the rates
provided under the laws of the State
of New York in effect at the time
of payment; provided that the amount
payable to each Executor other than
my wife for administering my estate
shall not exceed the sum of $250,000,
and he or she shall not be entitled
to any other commissions or additional
compensation.
(E) Each instrument that designates
a fiduciary, that revokes or amends
a designation or that signifies a
fiduciary's acceptance of office shall
be filed with the records maintained
by the fiduciaries of my estate and
a copy of it shall be mailed or personally
delivered to the next successor fiduciary,
if any.
(F) Any fiduciary at any time in
office may resign as such by mailing
or delivering a written notice of
resignation to the next successor
fiduciary. The resignation shall take
effect upon the date stated in the
notice or, if court approval is required
for such resignation, upon the granting
of such approval, whereupon all duties
of the resigning fiduciary shall cease,
other than the duty to account.
Any resigning fiduciary shall take
all steps necessary to effect and
perfect the delivery and transfer
of all property then held by such
fiduciary to each successor to the
resigning fiduciary. No successor
fiduciary shall be obliged to examine
the accounts, records, and acts of
any previous fiduciary or any allocations
of receipts or disbursements as between
principal and income made by any previous
fiduciary.
(G) All powers, authority and discretion
herein conferred upon my fiduciaries
shall pass to and be exercisable by
each successor fiduciary.
(H) I direct that no fiduciary serving
under this Will at any time shall
be required to file or furnish any
bond or other security, any provision
of law to the contrary notwithstanding.
(I) If any beneficiary of my estate
is or becomes incapacitated (whether
by reason of illness or other cause)
in the sole judgment of my Executor,
then payment to or for the benefit
of such beneficiary may be effected
ti) by making payment to a legally
appointed guardian, committee or conservator
of such beneficiary; (ii) by making
payment, on behalf of such beneficiary,
to such beneficiary's attorney-in-fact
under a durable power of attorney,
or to any person with whom such beneficiary
resides or who has charge of his custody
or care; or (iii) by application thereof
directly for the use or benefit of
such beneficiary. Any such payment
or application may be made without
requiring any bond, and the receipt
of any person receiving such payment
or application shall be a full discharge
to my fiduciaries who shall not be
bound to see to the further application
of any such payment.
ARTICLE ELEVENTH: IN TERROREM
If any beneficiary under this Will
or any Codicil hereto shall, directly
or indirectly, institute or become
an acting party to any proceeding
to set aside, interfere with, or make
null any provision of such Will or
Codicil, or to offer any objections
to the probate thereof, or shall in
any manner, directly or indirectly,
contest the probate thereof, I direct
that any property or interest that
such beneficiary might otherwise have
had or received under this Will or
any Codicil hereto, outright or in
trust, shall thereupon terminate,
any provision of law, whether in the
form of any anti-lapse statute or
otherwise, to the contrary notwithstanding,
and such property or interest shall
be added to my residuary estate.
ARTICLE TWELFTH: TITLES
The title to each Article in this
Will is used to aid in identification
of each Article. However, the titles
shall not be deemed to be part of
this Will for purposes of ascertaining
the meaning of any provision contained
in this Will or for any other reason.
ARTICLE THIRTEENTH: CONSTRUCTION
Whenever the masculine or feminine
gender is used in this Will, it shall
be deemed, when appropriate to the
context, to include the opposite gender
as well. Whenever appropriate, the
singular shall include the plural
and the plural shall include the singular,
as the context may require.
IN WITNESS WHEREOF, I have signed
my name to this Will on this 25th
day of January 1994.
/s/ Harry B. Helmsley
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