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Producers of the most popular podcast in history announced two new seasons Wednesday, beginning this fall. Continue reading
What songs get you moving? For cognitive scientists, researchers and now music streaming apps, the answer is in your brain. Continue reading
A Swedish non-profit hopes a new set of emojis they released will help children and teenagers signal instances of abuse or communicate their stressful situations to adults when words aren't enough. Continue reading
In early 2014, Medicare changed some of its rules and effectively took away the ability of many people with ALS to communicate. Despite upcoming changes, the current limitations are still being felt by patients and their families. Continue reading
A male astronomer's offhand comment during an interview prompted a social media outcry over the weekend when female scientists around the world took to Twitter using the hashtag #GirlsWithToys. Continue reading
If you own a smartphone, there's a chance you're being tracked by your boss, as more companies reportedly use GPS technology to monitor the whereabouts of their employees — even when they're off the clock. That was the case for one worker who turned off the GPS in her phone and got fired. Now, she's taking her ex-employers to court. Brian Fung, a reporter for The Washington Post, joins Hari Sreenivasan from Washington, D.C., to discuss. Continue reading
Verizon announced Tuesday that it's buying AOL Inc. for $50 a share, valued at approximately $4.4 billion, to bolster the company's plans for mobile and web video. Continue reading
Entrepreneurs are using technology to game the employment system without understanding the goal of hiring: matching the right worker to a job so that work can be done profitably for an employer. Continue reading
A new report from Pew Research Center shows that a majority of Americans don't trust the government, but plenty use its open data — often without knowing they're doing so.
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Ransomware, a type of software that computer hackers use to hold individuals' data hostage by blocking access to files unless they agree to pay a ransom, is on the rise. And because anyone with an internet connection is vulnerable, the problem highlights a growing threat that consumers face on both their personal computers and mobile devices. Continue reading


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Very disappointed that menu on line was not available. Planned on a dinner listed that they did not have. Chose another steak option that was average at best. Love the venue but very expensive for a meal that was not outstanding.
Is this restaurant good for lunch?
Is this restaurant good for local cuisine?
Is this restaurant wheelchair accessible?
Is this restaurant good for dinner?
Is this restaurant good for dining on a budget?
Is this restaurant family-friendly?
Is this restaurant good for brunch?
Is this restaurant good for breakfast?
Does this restaurant offer takeout or food to go?
Does this restaurant offer free wifi?
Thanks for helping!Share another experience before you go.
Very disappointed that menu on line was not available. Planned on a dinner listed that they did not have. Chose another steak option that was average at best. Love the venue but very expensive for a meal that was not outstanding.
Perfect setting for my cousin's 80th Birthday. We ate upstairs in a private dining room. Service was impeccable, and the staff helped us pull off this surprise party. Horderves were excellent led by the delicious Ahi Tuna. The salad was tasty and the entrees were good as well. I highly recommend their specialty Martinis as well.
The food was great. The four of us were upstairs in a corner which was great. The food we had was as follows:1- Mushroom Soup , Cusk ( fish ) and Chocolate Oreo for dessert. 2-Blt caesar salad, Strip steak. 3- Kale salad, Pork tenderloin, cheese assortment. 4- Tuna bites, Lamb Chops. We enjoyed all our food and will be... More
Beautiful place with great food! I am glad we had the opportunity to try during restaurant week. We look forward to returning...
Serendipity! Friends daughter is the pastry chef. Wonderful food. Amazing new item on the menu. Cusk, a fish that tastes like cod! Delicious creme brûlée with pumpkin bar.
My husband and I made online reservations at Mombo's for a Saturday evening to celebrate our anniversary. The hostess and our waitress, Emily, were friendly and attentive. I ordered lobster bisque to start, and my husband had the BLT Caesar salad. I was amazed at the large chunks of lobster in the bisque, and the salad was fresh and large.... More
Based on a recommendation of a friend, my wife and I went to Mombo right before the Labor Day weekend. Our first impression was good, since we liked the fact that it had valet parking and the décor was very nice. We split an order of the "pork 4 ways" appetizer then I order the "Rib Eye streak" and my... More
I live about 2 hours away and never get to the area much, happened to look them up on here and since the menu looked so good I went for it. So glad I did! I sat at the bar right when you walk in and I wish I remembered the blonde bartenders name, but she was awesome! I started... More
Friday evening dinner for four. Lots of good things here -- valet parking next to the restaurant (essential in this part of Portsmouth), attractive room, very promising menu, reservation honored promptly, prompt and attentive service. But it could have been better. Caesar salad BLT - attractive initial presentation, but the majority of it was chopped iceberg lettuce with no dressing... More
3 couples went to Mombo for dinner on a Saturday night. Be sure to make reservations. Mombo is in an ideal location and has it's own parking lot. This is unheard of in Portsmouth and one of the main reasons why we chose this restaurant on a busy summer Saturday night. We often find parking in Portsmouth difficult especially in... More
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|This is the Revell 1/144 kit.
1024x768 46KB, 833 hits.
|The decal is by GWD. That's me - George Webb Decals! Home made and printed on a LaserJet. Hope to start producing my own line one day!
1024x768 46KB, 596 hits.
|The main wing trailing edge has been lowered.
1024x768 47KB, 663 hits.
1024x768 52KB, 616 hits.
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|The nose shape has been corrected. I'm not sure how accurate it is, but I think it looks better.
1024x768 46KB, 935 hits.


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May 12, 2015 at 9:24 pm
Post count: 10
Been thanked: 0 times
#17462 |
Thanks Roman. I see that the headlines on the page are now displaying properly, however the headlines on the post slider (same page) are still getting cut off. I even brought down the font size to 20 and it didn't make a difference.


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This five bedroom, four full bath, and two half bath Mediterranean-style floor plan allows for the perfect combination of entertainment, lifestyle, and functional elegance. The breathtaking two-story foyer and living room can be viewed from the second-story loft which hosts three bedrooms, and two baths. The master enclave creates one wing of the home while the gourmet kitchen, overlooking the family room, compliments the other half of the home.
Learn what it takes to make your dream home a reality – with absolutely no obligation. Complete our online Pre-Application Worksheet or contact a TBI Mortgage Company representative to answer all your financing questions. Visit TBIMortgage.com to learn more about the wide variety of financing programs we can offer you, or click here to view our Mortgage Calculator. We respect your privacy.


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YU's Center for Israel Studies Convenes Conference to Mark 50th Anniversary of S.Y. Agnon's Nobel Prize The Yeshiva University Center for Israel Studies will host a conference on the works and influence of Nobel Prize-winning Israeli author S.Y. Agnon in commemoration of the 50th anniversary of his award. Titled "Agnon's Stories of the Land of Israel:…
Hanukkah at the Arch of Titus
Professor Steven Fine Reflects on Jewish View of Menorah Depicted on the Arch of Titus Through the Ages It is hard for me to look up at the menorah of the Arch of Titus in Rome without feeling deep emotions. This is especially true at Hanukkah—and especially this Hanukkah, when stabbings in Jerusalem, the murder…
Rome and the Menorah
New Online Course Led by Yeshiva University Faculty Brings Arch of Titus to the Global Classroom
The Life and Legacy of Yitzhak Rabin
Twenty Years After His Assassination, YU Academic Conference Reflects on Rabin's Lasting Impact
Remembering Yitzhak Rabin
YU Conference to Explore Life and Legacy of Israel's Fifth Prime Minister
Three Faculty Members Recognized
Fine and Holz Appointed Endowed Chairs; Shatz Named University Professor
Fine Delivers Khan Academy Lesson
Dr. Steven Fine Presents Online Lesson on Relief From The Arch of Titus
Menorah Myth Busters
Students in Yeshiva College Summer Course Discredit Claim That Vatican is Hiding Temple Relics
Chasing 5th-Century Clues From a Woman's Tombstone
The New York Times Features Students in Dr. Steven Fine's Ancient Jewish History Class Who Are Deciphering a Unique Artifact
Contextualizing a Culture Change
YU Center for Israel Studies Partners with MET on Middle East Exhibition On May 6, a group of students, alumni and members of the Yeshiva University community huddled around an ancient book. On its pages, in blue, red and yellow, were the letters of the Hebrew alphabet, carefully traced and shaded in by a child's…
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MD Anderson Events
Center for Cancer Immunology Research (CCIR) Grand Rounds
Date: 10/31/12, 10am to 11am
Time: 10/31/12, 10am to 11am
Location: Griffin Conference and Education Center, South Campus Research Building 2, Floor 1, Conference Rooms 1-6
Directions: As you enter the SCRB, turn left in front of the receptionist's desk then right down the hallway. The seminar will be held in rooms 4 and 5.
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Couscous With Roasted Vegetables and Tahini Sauce
Total Time
Prep 15 mins
Cook 45 mins
This is a fabulous vegetarian salad served at room temperature. I am constantly asked to either make it or to supply the recipe. I have posted a Tahini Sauce that goes with the salad separately.
Ingredients Nutrition
- 500 g sweet potatoes or 500 g kumara
- 2 red Spanish onions, peeled cut into wedges
- 1 red capsicum, cut into pieces
- 1 green capsicum, cut into pieces
- 2 zucchini, chopped
- olive oil
- 400 g drained chickpeas
- 2 cups couscous, cooked
- Paul Newman's Vinegar and Oil Dressing
- Place vegetables in roasting dish.
- Drizzle with olive oil.
- Roast 200°C for about 45 minutes.
- Cool.
- Combine chickpeas and couscous, stir in dressing to taste. Place on large serving platter.
- Add remaining dressing to cooled vegetables, mix and spoon over couscous.
- Serve at room temperature with tahini.


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Discussion in 'iPod touch' started by BobAndrews, Oct 24, 2007.
how can i create a summerboard-theme by myself?
thanks for help!
Please Register or Log in to view images push
any hints?
Please Register or Log in to view images
im sure you may find it if u search for it. here or google it.
Yes, the answer has been posted in this forum. If you search, you'll find all the details that you need. Basically it's like this:
1) In your theme's folder, create a new folder and name it whatever you want your theme to be.
2) Put in the images in png format for the wallpaper, dock, minidock, and statusbars that you want to use. Name those files correctly, or tehy won't work.
3) Create within that folder a new folder called Icons.
4) In your new icons folder, put in all the new icons that you want to use; name them correctly, or they won't work.
5) Reboot, or restart Springboard.
I left many details out on purpose, but this should steer you in the right direction. And please, please, please use a search next time.
ok, thanks a lot. the english board is not so my terrain, so i cant see everything ad hoc. sorry for this.
and thanks for your help!
Separate names with a comma.


text:
- Service & Staff
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Welcome on the separate newsletter website of RE/MAX Paradise Homes.
We will inform all our subscribers on a regular base with information about the real estate market on Bonaire, Rental possibilities, changes and important information about regulations, taxes and many many information more!
If you are not subscribed to our newsletters please do this as soon as possibel on the sunscribe button on the right and the next information bulletin will be in your mailbox.
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Mini pirate hat in purple on headband.
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17 May 2011
Well Game 1 went just about as well as we could have hoped for, right? That game was an absolute joy to watch. After a jittery start the team settled down and played a great game. We landed a couple of nice jabs in the second and third quarters before delivering the knockout blow in the 4th quarter.
Not to toot my own horn too much, but they really executed on my keys to the series. I said that we had to limit the turnovers to avoid fast break buckets for Miami. Well, after a free early turnovers from Derrick he really settled in nicely and took care of the ball. Secondly, I thought we had to win the rebounding battles consistently. Well, as simple glance at the Stat of the Day (yes we have one this time) tells us that we dominated on the offensive glass. I was a little nervous about this one in the first half when we gave up a few second chance buckets, but we sure dominated the glass in the second half. Third, I said we our bench had to show up. I think it's safe to say they did. Taj Gibson was trending on twitter for a reason. Lastly, I said we had to put the pressure on Miami by winning Game 1. Well, not only did they win but they won by 21 points. Now the Heat have to think about that for two days. How will they respond?
If Lebron and Wade have any kind of heart at all they're going to come after us with everything they have in Game 2 after getting embarrassed on Sunday night. I mentioned in an earlier post how I thought Luol Deng was our MVP Sunday night. Not only did he play well offensively, but he did a wonderful job defensively on Lebron. It wasn't just Lebron, though. We did a great job with our team defense. Our bigs were unbelievable. We kept switching on pick and rolls and Noah and Gibson did an amazing job of keeping those guys out of the paint. I even saw Asik do it once, forcing Lebron into a 3-point attempt. Granted, he made the shot, but that's the shot that we want Lebron taking. We'll see what, if any, adjustments Miami makes offensively to try and improve in this area.
Stat of the Day:
The Bulls outscored the Heat 31-8 on second-chance points in Game 1
Probable Miami Starters:
G – Mike Bibby, 3.5 PPG
G – D'Wayne Wade, 25.5 PPG
F – Lebron James, 25.1 PPG
F – Chris Bosh, 17.5 PPG
C – Joel Anthony, 3.8 PPG
Probable Chicago Starters:
G – Derrick Rose, 28.8 PPG
G – Keith Bogans, 5.2 PPG
F – Luol Deng, 17.1 PPG
F – Carlos Boozer, 12.0 PPG
C – Joakim Noah, 9.8 PPG
Current Line: Chicago (-2), Over/Under 181
I hate Steve Stone's guts but one thing he says that I absolutely agree with is "you're never as good as look when you're winning, and you're never as bad as you look when you're losing." We need to keep that in mind when looking at Game 1. It was just about the perfect game for us, but don't go crazy Bulls fans. Miami is going to play better than they did on Sunday night. I can't imagine we will shut down Lebron and Wade the way that we did in Game One. I still like us to win the series Bulls fans, but it's not going to be easy. This is going to be a series. Hope I'm wrong about tomorrow night.
Heat 88 Bulls 86
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PC gamer, WorthPlaying EIC, globe-trotting couch potato, patriot, '80s headbanger, movie watcher, music lover, foodie and man in black -- squirrel!
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Braewell Gallery
Scottish, art exhibition, landscape art
We are an award winning gallery based in Edinburgh, on Dundas Street along with 11 other contemporary art galleries.We exhibit paintings from leading Scottish artists such as Peter Howson, Joe O'Brien, Alexandra Gardner, Ally Thompson, Elaine Speirs, Liz Knox, Paul Kennedy, Frank To, Fraser Crawford, Valentin Petrov, Jock MacInnes and many others. Our exhibition changes every month keeping the art gallery in Edinburgh fresh and vital.
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Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
December 4, 2012
INTERNATIONAL FIDELITY INSURANCE COMPANY AND UNITED STATES FIRE INSURANCE COMPANY, PLAINTIFFS,v.THE AULSON COMPANY, INC., AULSON ROOFING, INC., AULSON INDUSTRIAL SERVICES, INC., THE AULSON BUSINESS TRUST, GATOR ROCK, LLC, GREAT ROCK REALTY TRUST, SHELL ROCK REALTY TRUST, SMALL ROCK TRUST, RIVER ROCK REALTY TRUST, ALAN P. AULSON AND MAUREEN A. AULSON, DEFENDANTS.
The plaintiffs, International Fidelity Insurance Company
("IFIC") and United States Fire Insurance Company ("US Fire"), are surety companies. The defendants are a specialty construction company located in New York, the President of that construction company, and other companies in which the President holds an ownership interest. The plaintiffs have moved for summary judgment on their claims for breach of promissory notes and of a Forbearance Agreement. For the following reasons, the motion is granted.
The following facts are undisputed or as shown by the defendants unless otherwise noted. In 2002, the Aulson Company was awarded contracts for projects involving the repair and refurbishment of a number of bridges, including the Manhattan Bridge in New York City. In connection with these projects, the defendants negotiated with IFIC and US Fire to obtain surety bonds guaranteeing the performance and payment obligations of the Aulson Company, Aulson Roofing and Aulson Industrial under the construction contracts. Before issuing the surety bonds, both of the plaintiffs independently required the defendants to execute indemnity agreements. An indemnity agreement was executed between defendants Aulson Company, Aulson Roofing, Aulson Industrial, Great Rock Realty, Shell Rock Realty, Small Rock, River Rock Realty, Alan Aulson and Maureen Aulson ("US Fire Indemnitors"), and US Fire on January 2, 2002. In this agreement, the US Fire Indemnitors agreed to indemnify . . . and hold [US Fire] harmless from and against all demands, claims, loss, costs, damages, expenses and attorneys' fees of whatever kind or nature, sounding in contract, tort or otherwise, and any and all liability therefore, sustained or incurred by [US Fire] by reason of executing or procuring the execution of any said Bond or Bonds . . . .
In consideration of the agreement, US Fire executed two surety bonds; together the bonds carried a maximum obligation or penal sum of $32,338,022.
All of the defendants executed a second indemnity agreement with IFIC on December 22, 2005. This agreement similarly provided that the defendants shall exonerate, indemnify and keep indemnified [IFIC] from and against any and all liability for losses and/or expenses of whatsoever kind or nature (including, but not limited to, interest, court costs and counsel fees) and from and against any and all such losses and/or expenses which the Surety may sustain or incur: (1) By reason of having executed or procured the execution of the Bonds, (2) By reason of the failure of the Contractor [the Aulson Company] or Indemnitors to perform or comply with covenants and conditions of this Agreement or (3) In enforcing any of the covenants and conditions of this Agreement.
In consideration of this agreement, IFIC executed three surety bonds, carrying in total a penal sum of $12,700,000.
In March of 2007, the Aulson Company advised the defendants that it was financially unable to perform its obligations under the construction contracts, including paying its laborers and material suppliers. As a result, Koch Skanska Inc. ("Skanska") the general contractor and obligee on three of the bonded projects, sought to have the plaintiffs fulfill the Aulson Company's obligations. In connection with satisfying their obligations under the surety bonds, IFIC and US Fire calculated their losses, costs and expenses at $6,400,000 and $5,500,000, respectively. IFIC demanded payment from defendants of $6,400,000 and US Fire demanded $4,200,000 to hold as security against the losses and expenses it expected to incur. The defendants refused to make such payments due to financial inability and instead requested a restructuring of the indemnity agreements.
On August 1, 2007, IFIC and US Fire entered into a Forbearance, Restructuring, Intercreditor and Security Agreement (the "Forbearance Agreement") with the defendants. IFIC and US Fire agreed to liquidate and reduce the principal amounts of indebtedness owed to both to $4,500,000 and $1,500,000, respectively. The sureties also agreed to forebear on collection of the indebtedness for two years, that is, until July 31, 2009. In the Forbearance Agreement, the defendants largely waived their right to assert defenses against the plaintiffs. The Forbearance Agreement provided: that none of the Indemnitors has any claim or counterclaim against the Surety with respect to the Indemnity Agreements, or any other matter, any such claims or counterclaims being hereby knowingly and intentionally forever waived and released by the Indemnitors; and . . . that none of the Indemnitors has any defense to the enforcement of any of the Indemnitors' obligations pursuant to the Indemnity Agreements, any such defense being hereby knowingly and intentionally forever waived and released by the Indemnitors. (Emphasis Supplied.) In consideration of this agreement, the defendants concurrently executed separate promissory notes to IFIC and US Fire that reflected the defendants' promise to repay in full the IFIC and US Fire debts by August 1, 2009. The Forbearance Agreement granted the plaintiffs liens on certain real property (the "Real Estate Collateral") and security interests in a variety of other collateral. The promissory notes and Forbearance Agreement further provided that in the event of default by the defendants the debt would become immediately due and payable and that "interest thereafter shall accrue at the lesser of nine (9%) percent per annum or the maximum rate of interest permitted under the applicable legal requirements."
With respect to the Manhattan Bridge project, US Fire entered into a takeover agreement with Skanska, obligating US Fire to complete work on the bridge that the Aulson Company had been hired to do. US Fire then hired the Aulson Company to perform this work. The Aulson Company's work on the Manhattan Bridge was repeatedly impeded by circumstances outside of its control. The Aulson Company has estimated that its delay claim against Skanska has a value of between $4,000,000 and $5,188,349.57.
In August of 2007, at the same time that the parties entered into the Forbearance Agreement, US Fire entered into a collateral security agreement with the US Fire Indemnitors to memorialize the parties' rights and obligations in regard to the bonded contracts. This agreement assigned the defendants' rights to bring its delay claims to US Fire. It provided:
In consideration for the Surety agreeing to fund the completion of the Bonded Contracts, and as more fully set forth in the certain agreement between the Indemnitors, the Surety and International Fidelity and Insurance Company (the "interparty Collateral Agreement"), the Indemnitors assign to the Surety all right, title and interest in and to all funds due or to become due on the Bonded Contracts and any and all affirmative claims . . . the Indemnitors now have, or may have, on the Bonded Contracts. The Indemnitors recognize, acknowledge and agree that the Surety already possesses the interest set forth herein pursuant to the Indemnity Agreement. (Emphasis supplied.)
Following the execution of the Forbearance Agreement and the promissory notes, the defendants made payments of $85,000 and $227,902.83 to the plaintiffs on September 28, 2007 and January 30, 2008, respectively. These payments were distributed pro rata between the plaintiffs; IFIC received $235,346.62 and US Fire received $77,556.71. The defendants made no further payments to either IFIC or US Fire on or before August 1, 2009, the maturity date for repayment of the debt set by the Forbearance Agreement and promissory notes.
On March 24, 2011, IFIC, as lead surety, notified the defendants that an event of default had occurred, and demanded payment of $6,891,000 -- the aggregate unpaid principal and accrued interest on the debt as of the date, exclusive of costs. On August 4, IFIC requested repayment under the promissory notes of $7,101,377.58, the figure representing unpaid principal and the accrued interest on the debt as of that date plus costs and expenses. The parties agree that the unpaid principal due to IFIC under the Forbearance Agreement and IFIC note is 4,264,653.38 and that the unpaid principal due to US Fire under the Forbearance Agreement and US Fire note is $1,422,443.79.
On December 16, 2011, the plaintiffs filed suit against the defendants. IFIC asserts claims for breach of the Forbearance Agreement and the IFIC promissory note against all of the defendants. US Fire asserts claims for breach of the Forbearance Agreement and the US Fire promissory note against its indemnitors.
On August 24, 2012, following discovery, the plaintiffs' filed a motion for summary judgment. This motion was fully submitted on October 9. For the following reasons, the plaintiffs' motion for summary judgment is granted. DISCUSSION
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986).
Where a plaintiff uses a summary judgment motion to challenge the legal sufficiency of an affirmative defense -- on which the defendant bears the burden of proof at trial -- a plaintiff may satisfy its Rule 56 burden by showing that there is an absence of evidence to support an essential element or the non-moving party's case.
Fed. Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994)(citation omitted). When a motion for summary judgment is properly supported, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see also Borthwick v. First Georgetown Sec., Inc., 892 F.2d 178, 181 (2d Cir. 1989). If no rational fact finder could find in the non-movant's favor, there is no genuine issue of material fact, and summary judgment is appropriate.
See Anderson, 477 U.S. at 251--52.
The first dispute that must be resolved concerns the law that will be applied here. The parties dispute whether Massachusetts or New York law governs.
A federal court sitting in diversity applies the choice of law rules of the state in which it sits. In re Coudert Bros. LLP, 673 F.3d 180, 186 (2d Cir. 2012). New York Courts defer to "the choice of law made by the parties to a contract" unless "the most significant contacts with the matter in dispute are in another state." Cap Gemini Ernst & Young, U.S., L.L.C. v. Nackel, 346 F.3d 360, 365 (2d Cir. 2003) (citation omitted); cf. Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir. 1996).
The parties have agreed that Massachusetts law will govern the claims brought by the plaintiffs.*fn1 The plaintiffs claim that the defendants breached the Forbearance Agreement, the IFIC promissory note, and the US Fire promissory note. The Forbearance Agreement selected Massachusetts law as the governing law. It reads as follows:
Governing Law; No Third Party Rights. This Agreement, the Notes, the other Debt Documents and the rights and obligations of the parties hereunder and thereunder shall be governed by and construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts without regard to principals of conflicts of law. . .
The promissory notes were executed concurrently with the Forbearance Agreement. A dispute arising from the Forbearance Agreement and promissory notes involves the "rights and obligations" of the parties to those documents. The plain meaning of the Forbearance Agreement indicates therefore that Massachusetts law is to govern the plaintiffs' claims that the defendants breached the Forbearance Agreement and the promissory notes.
The defendants argue that the relevant governing law is the law of New York. They point to the collateral security agreement -- executed by US Fire and the US Fire Indemnitors concurrently with the Forbearance Agreement -- which provides that the collateral agreement "and all its terms and conditions shall be governed by and interpreted in accordance with the laws of the State of New York." The defendants have not explained, however, why claims for breach of the Forbearance Agreement and enforcement of promissory notes executed under that agreement should be governed by the choice of law provision contained in a separate agreement. The defendants' argument that New York law applies to the plaintiffs' claims appears to stem from their contention, which is rejected below, that the collateral security agreement obligated the plaintiffs to pursue the Aulson Company's affirmative delay claim against Skanska.*fn2 The defendants' attempt to graft the collateral security agreement's choice of law provision onto the plaintiffs' claims fails. The plaintiffs' claims do not arise out of the collateral security agreement. Thus, the law that applies to the question of whether the plaintiffs are entitled to recover for the defendants' breach of the Forbearance Agreement and the promissory notes is a question governed by the law of Massachusetts.
1. Enforcement of Promissory Notes and Breach of Forbearance Agreement
The plaintiffs have shown that they are entitled to enforce the Forbearance Agreement and promissory notes. To establish a claim for breach of contract under Massachusetts law the plaintiffs must demonstrate that (1) the parties reached a valid and binding agreement; (2) the defendants' breached the terms of the agreement; and (3) the plaintiffs suffered damages from the breach. Michelson v. Digital Fin. Servs., 167 F.3d 715 (1st Cir. 1999); see also Singarella v. City of Boston, 342 Mass. 385, 387 (1961).
The plaintiffs have shown that there is no material issue of fact concerning any element of their claims. The plaintiffs have submitted the IFIC and US Fire promissory notes with their motion as well as notarized acknowledgment forms for each of the signatories. The defendants do not dispute the authenticity of the notes or the signatures. The parties also agree that the Forbearance Agreement is a valid and binding agreement. The defendants concede that after January 30, 2008 they made no further payments to IFIC or US Fire before or on the maturity date set for repayment in the Forbearance Agreement. Under the terms of the Forbearance Agreement, this constituted an event of default. The plaintiffs have shown damages in the form of the liquidated damages as expressly provided for in the Forbearance Agreement and the notes.
2. Duty to Pursue Delay Claim
The defendants present two related arguments against granting summary judgment to the plaintiffs. First, the defendants argue that the plaintiffs breached their duty of good faith and fair dealing when they failed to investigate and pursue the Aulson Company's affirmative delay claim against Skanska. Second, the defendants contend that the plaintiffs breached their obligation to mitigate damages by failing to take reasonable steps to generate income from the assets that the Aulson Company had assigned to them, i.e., the Aulson Company's affirmative delay claim against Skanska. Neither of these contentions raises a question of material fact that prevents an award of summary judgment to the plaintiffs.
Under Massachusetts law, every contract contains an implied covenant of good faith and fair dealing. Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991). This covenant provides that neither party to the contract shall do anything that has the effect of destroying or harming the right of the other party to receive the fruits of the agreement. Id. The implied covenant cannot, however, be invoked to "create rights and duties not otherwise provided for in the existing contractual relationship." Uno Rests., Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004).
No provision in the promissory notes or the Forbearance Agreement obligates either IFIC or US Fire to investigate or to pursue the affirmative claims of the Aulson Company that were assigned to the sureties in the indemnity agreements. Moreover, the implied covenant of good faith and fair dealing prohibits one party from doing anything that destroys the right of the other party to enjoy the fruits of the contract. The defendants have not shown that the plaintiffs have acted to deprive the defendants of the benefits they acquired under either the Forbearance Agreement or the notes. Indeed, the defendants have already enjoyed the fruits of the Forbearance Agreement. In consideration for the defendants' promise to repay their indebtedness upon maturity of the promissory notes, the plaintiffs agreed to and for two years did forbear on collecting the debt the defendants owed to the plaintiffs. The plaintiffs also reduced the total amount of the defendants' indebtedness. Thus, the defendants have already enjoyed the fruits of their bargain and now seek to be relieved from performing their obligations. The implied covenant of good faith and fair dealing is not meant to serve such ends.
The defendants cite a host of cases to argue that the plaintiffs have breached a duty of good faith by failing to investigate and pursue the Aulson Company's affirmative delay claim against Skanska. These cases are unpersuasive for a number of reasons. Nearly all of the cases involve claims by sureties against the principals for indemnification. The principals in these cases argued that the surety had failed to act in good faith in investigating and paying the claim for which it sought indemnification. This line of cases is inapposite. Here, the defendants are not contesting the plaintiffs' decision to pay out on claims asserted against the Aulson Company by third-parties for the Aulson Company's breach of the bonded contracts.*fn3 Instead, the defendants complain that the plaintiffs chose not to investigate and pursue an affirmative claim that the Aulson Company may have against a third-party in order to off-set the defendants' indebtedness to the plaintiffs.
Three of the cases cited by the defendants relate to affirmative claims of a principal that are assigned to a surety through an indemnity agreement. See Compania De Remorque y Salvamento, S.A. v. Esperance, Inc., 187 F.2d 114, 117 (2d Cir. 1951); General Insur. Co. of Am. v. Mezzacappa Bros., Inc., 2003 WL 22244964, at *1 (E.D.N.Y. 2003); Bell BCI Co. v. Old Dominion Demolition Corp., 294 F.Supp.2d 807, 809 (E.D. Va. 2003). Although more on point, these cases also do not support the defendants' contention that the plaintiffs have an obligation to investigate and pursue the defendants' affirmative claims. In these cases, the surety chose to settle its principal's affirmative claims. To varying degrees these three cases support the principle that if a surety chooses to settle a principal's affirmative claim, the settlement must be entered in good faith. None of these cases involves a situation in which the surety is suing to enforce a forbearance agreement and promissory notes rather than suing to enforce an indemnity agreement. Nor do these cases address a situation in which the indemnitor has waived all claims against the indemnitee arising out of the indemnity agreement. Furthermore, none of these cases holds that a surety has an obligation to pursue a principal's affirmative claims.
The defendants next suggest that certain language found in the collateral security agreement and the Forbearance Agreement obligated both sureties to investigate and pursue the defendants' affirmative claim against Skanska. The collateral security agreement between US Fire and the US Fire Indemnitors provides that "the Indemnitors assign to the Surety all right, title and interest in ... all affirmative claims," and that "the Surety has the sole discretion to settle any affirmative claims. . . ." The Forbearance Agreement appoints IFIC as lead surety and gives IFIC the power and right . . . upon the occurrence and continuance of any Event of Default . . . to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any part thereof and to enforce any other right in respect of any Collateral. Nothing in this contractual language, however, suggests that either IFIC or US Fire was obligated to investigate and pursue Aulson's affirmative claims; the "power and right" to sue on a principal's affirmative claim does not impose an obligation and responsibility to do so.*fn4
The defendants' second affirmative defense is largely repetitive of their first. The defendants argue that summary judgment should be denied because, by failing to investigate and pursue the Aulson Company's affirmative claim for delay against Skanska, the plaintiffs failed to mitigate their damages.
Massachusetts law recognizes a duty to mitigate damages. The Massachusetts Supreme Court has explained:
It is not infrequently said that it is the 'duty' of the injured party to mitigate his damages so far as that can be done by reasonable effort on his part. Since there is no judicial penalty, however, for his failure to make this effort, it is not desirable to say that he is under a 'duty.' His recovery against the defendant will be exactly the same whether he makes the effort and mitigates his loss, or not; but if he fails to make the reasonable effort, with the result that his injury is greater than it would otherwise have been, he cannot recover judgment for the amount of this avoidable and unnecessary increase. The law does not penalize his inaction; it merely does nothing to compensate him for the loss that he helped to cause by not avoiding it.
McKenna v. Commissioner of Mental Health, 347 Mass. 674, 676 (1964)(citation omitted). Thus, "a party cannot recover damages for loss that he could have avoided by such reasonable efforts as are appropriate in the circumstances to avoid loss." Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.App.Ct. 582, 612 (2007) (quoting Restatement (Second) of Contracts § 305(1) comment b (1981)).
But, the duty to mitigate has little relevance in the context of a liquidated damages provision. Under Massachusetts law a liquidated damages clause is enforceable "so long as it is not so disproportionate to anticipated damages as to constitute a penalty." Cummings Prop., LLC v. National Communications Corp., 449 Mass. 490, 494 (2007). If a liquidated damages clause is enforceable, "mitigation is irrelevant and should not be considered in assessing damages." NPS, LLC v. Minihane, 451 Mass. 417, 423 (2008). An acceleration clause that provides that a party's default under the contract will cause certain amounts to become immediately due may constitute an enforceable liquidated damages provision as long as it meets the standard described above. Cummings Prop., LLC, 449 Mass. at 494. Thus, so long as an acceleration clause does not impose a penalty on the breaching party, mitigation is irrelevant and should not be considered. Panagakos v. Collins, 80 Mass. App.Ct. 697, 702-03 (2011).
The defendants have not shown that the plaintiffs had any obligation to mitigate damages. The Forbearance Agreement contains an acceleration clause that provides that upon the occurrence of an event of default "all amounts outstanding (with accrued interest thereon, if any) and all other Obligations owing to the Surety under the Debt and Debt Documents" shall be declared due. The parties agree that the unpaid principal due to IFIC under the Forbearance Agreement and IFIC note is 4,264,653.38 and that the unpaid principal due to US Fire under the Forbearance Agreement and US Fire note is $1,422,443.79. The parties also agree that pursuant to the Forbearance Agreement and notes, upon an event of default the defendants are obligated to pay accrued interest on the unpaid indebtedness due to the sureties at the default rate of 9% from the date of default to the entry of judgment. The acceleration clause and the other provisions in the Forbearance Agreement setting the amount due to the sureties are enforceable liquidated damages clauses. These provisions reasonably anticipate the plaintiffs' damages caused by the defendants' refusal to pay off their indebtedness. Cf. Leshefsky v. American Employers' Ins. Co., 293 Mass. 164, 173 (1936). Because the plaintiffs seek to recover under an enforceable liquidated damages provision, they had no duty to mitigate damages.
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filed: March 25, 1983.
No. 233 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Orphans' Court Division, of Schuylkill County at No. 18 at P. 655.
David Pittinsky, Philadelphia, for appellants.
J. Brooke Aker, Norristown, for participating parties.
Cavanaugh, McEwen and Hoffman, JJ.
[ 313 Pa. Super. Page 299]
This is an appeal from a final decree of the Orphans' Court Division of the Court of Common Pleas of Schuylkill County dismissing exceptions to the court's adjudication which confirmed the trustees' accounts. The court also dismissed the exceptants' petitions for allowance of counsel fee filed by various family members but these exceptions are not part of this appeal.
On August 19, 1932, Joseph Henry Zerbey (hereinafter referred to as testator) who was then seventy-four years of age and possessed of a substantial estate, executed his will. At that time his heirs consisted of three daughters, Frances Zerbey Braun, Elizabeth Zerbey Martz and Mildred Zerbey Lazarus, one son, Joseph Henry Zerbey, Jr., and one grandchild, Joseph Henry Zerbey, III, the son of Joseph Henry Zerbey, Jr. On January 1, 1933, another grandchild of testator was born, Johanna Zerbey Martz, the daughter of Elizabeth Zerbey Martz. The family tree as to issue was thus constituted when testator died on February 2, 1933. After testator's death two more grandchildren were born, Uzal Martz, Jr. (the son of Elizabeth Zerbey Martz) born on October 20, 1934, and Margareta Lazarus (now Margareta Lazarus Paduch) who was the daughter of Mildred Zerbey Lazarus, born on August 12, 1935.
The testator's will under paragraph NINTH(c) and (d) established two trusts referred to in his will as the "Newspaper Trust" and the "Union Hall Trust".*fn1 The income
[ 313 Pa. Super. Page 300]
from the two trusts was to be divided into five shares, one share for each of his four children whom he identified by name and one share for his grandchildren "said share to be subdivided among all of my grandchildren in equal shares, including any grandchildren born after my death". Testator also provided that upon the death of any of his children the income from the two trusts was to be divided into equal shares with one share for each of his then living children and one share for his grandchildren.*fn2 The trusts are to terminate at the death of his last surviving child and the principal is then to be distributed to his living grandchildren in equal shares.*fn3 The will also provided that if at the death
[ 313 Pa. Super. Page 301]
of his last surviving child there were no grandchildren then surviving that the trust should be distributed in accordance with the intestate laws of Pennsylvania.
At testator's death he was survived by his four children and two grandchildren. Joseph Henry Zerbey, Jr., testator's only son died on February 16, 1945 and his son (testator's grandchild) Joseph Henry Zerbey, III died on July 3, 1958. The children of Joseph Henry Zerbey, III, namely testator's great-grandchildren, Joseph Henry Zerbey, IV, and Henry Zerbey are the appellants herein. Testator's daughter, Frances Zerbey Braun, died on October 27, 1975, leaving no issue surviving. Testator's other two children, Elizabeth Zerbey Martz and Mildred Zerbey Lazarus, still survive.
Upon the death of Joseph Henry Zerbey, III, in 1958 at the age of 41 the trustees did not distribute any income among the testator's great-grandchildren but rather continued income distribution with one equal share for each living
[ 313 Pa. Super. Page 302]
child and one equal share for grandchildren. In July, 1980, the appellants presented their claim to the Orphan's Court Division for the first time that they are entitled to their deceased father's share of income.*fn4
In this appeal we are involved with the narrow question of whether testator intended to use the term "grandchildren" when referring to income to include issue of a deceased grandchild. Our Supreme Court stated in Blough Estate, 474 Pa. 177, 185, 378 A.2d 276, 280 (1977):
The primary consideration in the construction and interpretation of wills is that the intent of the testator be followed . . . Absent ambiguity, that intent is to be determined from "the four corners of his will," . . . The duty of the court is not to determine what the testator might or should have said in light of subsequent events but, rather, the actual meaning of the words used . . . Only if the language employed by the testator is ambiguous should the court resort to canons of construction.
See also Toland Estate, 495 Pa. 482, 434 A.2d 1192 (1981).
In the instant case there is no difficulty with respect to the term "children". The parties agree that testator intended the term "children" to include only his children and not the issue of his children. The dispute revolves around the term "grandchildren" and whether testator intended to include the issue of deceased grandchildren in the term "grandchildren." In Ball v. Weightman, 273 Pa. 120, 123, 116 A. 653, 654 (1922) the Supreme Court stated:
The term "grandchildren" may or may not embrace great-grandchildren according to the meaning of the testator to be ascertained from an examination of the entire will. Standing alone it is restricted to children's children, but it may be enlarged by the context so as to embrace great-grandchildren or even more remote descendants. Where there is something to extend the natural signification of the term "grandchildren" it may include great-grandchildren: Horn v. Van Schaick, 3 Barbour's Chancery Reports 488, 508;
[ 313 Pa. Super. Page 303]
see also the opinion of the late Judge HAWKINS, In re Estate of Andrew Morton, 32 Pitts. L.J. (N.S.) 406. In the language of YEATES, J., in the leading case of Pemberton v. Parke et al., 5 Binney 601, 609, " Grandchildren are words of equivocal import, and may or may not include greatgrandchildren, according to the sense in which they may have been used by a testator, collected from the whole of his will." (Emphasis added).
See also Joyce Estate, 273 Pa. 404, 408, 117 A. 90, 91 (1922), wherein it is stated:
It has often been held that a gift to children will include grandchildren, if from other words in the will it appears there was an intention to use the term in a more extensive sense (Steinmetz's Est., 194 Pa. 611 [45 A. 663]; Puterbaugh's Est., 261 Pa. 235 [104 A. 601]); a fortiori, a gift to grandchildren, under such circumstances, will include great-grandchildren, since the former is a word of equivocal import: Pemberton v. Parke, 5 Binn. 601, 610. (Emphasis added).
In Disston Estate, 349 Pa. 129, 131, 36 A.2d 458 (1944) the court awarded a portion of principal to a great-grandchild under a will which provided for distribution to "grandchildren then living, per stirpes and not per capita." The Supreme Court affirmed the Orphans' Court which determined that this provision, considered with all the residuary provisions, indicated the testator's intent that great-grandchildren who were children of a deceased grandchild should share per stirpes with grandchildren.
The court has authority to give a broader meaning to the word grandchildren than ordinarily given if the testator's intent is not clear. Grimm Estate, 442 Pa. 127, 275 A.2d 349 (1971). If a testator's intent cannot be ascertained with reasonable certainty rules of construction are applicable to attribute a reasonable intention to the testator in the circumstances. See Chambers Estate, 438 Pa. 22, 263 A.2d 746 (1970); Houston Estate, 491 Pa. 339, 421 A.2d 166 (1980); Farmers Trust Company v. Bashore, 498 Pa. 146,
[ 313 Pa. Super. Page 304445]
A.2d 492 (1982). In the ascertainment of a testator's intent, a clause in a will must not be read in isolation but rather in the context in which it appears. See Clark Estate, 359 Pa. 411, 59 A.2d 109 (1948); Hill Estate, 432 Pa. 269, 247 A.2d 606 (1968).
In the will under consideration it is clear that the testator intended to primarily benefit his children with respect to distribution of income from the two trusts. When he drew his will, and at his death, he had four children living, a son and three daughters. His will provided that at his death the income from both trusts was to be divided into five equal shares, one for each child whom he designated by name in his will, and one share for all his grandchildren. He further provided that upon the death of each child the income was to be divided into equal shares, one for each living child, and one share "for my grandchildren." This scheme of distribution obviously favored his surviving children who receive a larger share of income as each of testator's children dies, than would a per stirpital distribution of income, whereby the share of income of the deceased child would go to his surviving issue, as each child of testator dies. When testator's son, Joseph Henry Zerbey, Jr. died in 1945 his three remaining daughters then received one fourth of the income each, with one-fourth share going to the class designated as "grandchildren". When Frances Zerbey Braun died in 1975, his two surviving daughters each received one-third of the income, with a third for "grandchildren". When testator drafted his will he knew that his class of children would not increase, and he designated each child by name in his will. He, of course, did not know how large the class designated as "grandchildren" would be. He knew he had one grandchild when he made his will and he provided for a share of income "to be subdivided among all of my grandchildren in equal shares, including any grandchildren born after my death." While each child would never receive less than one-fifth of the income, and as each child died the remaining children would receive larger shares of income, the share for "grandchildren"
[ 313 Pa. Super. Page 305]
would be divided among an unknown number, of persons in that class.
The testator's focus was clearly on his children when he wrote his will in 1932, as far as income from the two trusts was concerned. He was an elderly man and we know that he did not live long after he put his estate in order. All of us tend to believe that in the usual order of events parents die, then children and then grandchildren. We are predisposed to think in terms of the usual order of deaths, and testator as far as income was concerned was primarily thinking of providing for his children who were to receive eighty per cent of the income while all of his children lived. He then looked to the day when all of his children would be deceased and provided that his "grandchildren" would then receive the principal in equal shares, under Paragraph NINTH(g). When testator's son, Joseph Henry Zerbey, Jr. died in 1945 his grandson, Joseph Henry Zerbey, III, then entered the class of grandchildren and participated in the distribution of income to be awarded to the class of "grandchildren." When Mr. Zerbey, III, died in 1958, at the relatively young age of 41, at a time when testator's three daughters were still living, the usual order of deaths did not occur. It would hardly have been testator's intent that Mr. Zerbey, III's, share of income would not continue to his children who were also grandchildren of testator, albeit great-grandchildren. It must be kept in mind that to allow the appellants to take their father's share of income would in no way decrease the share of income for testator's children.
The expressed intention in testator's will is to secondarily benefit the class known as "grandchildren" and we are of the opinion that in the context of testator's will that the term grandchildren also included the children of deceased grandchildren who would take their deceased parent's share as far as income distribution is involved. Appellants' herein are grandchildren of the testator notwithstanding that they are great-grandchildren and testator's will does not manifest an intention to exclude them from the class of grandchildren.
[ 313 Pa. Super. Page 306]
We will not rewrite the testator's will, but as pointed out in Clark Estate, 359 Pa. 411, 420, 59 A.2d 109, 113 (1948):
It is a well recognized canon that where language is equivocal a construction enuring to the benefit of remote lineal descendants is preferred to one which favors immediate issue exclusively.
While no two wills are alike, the courts through the years have been confronted with the term "grandchildren" and the problems have been difficult to resolve. In Carnegie Estate, 397 Pa. 308, 155 A.2d 349, 350 (1959) which affirmed on the opinion of the court below, the testatrix's will in Item Two directed the trustees:
to pay the surplus of said income, if any, yearly during the life of the trust as to said Island property to my said children then living, and to the children of such of my named children as are then dead, the children of every deceased child taking their parent's share.
One of the children of a deceased child, being a grandchild of testatrix, died without issue, leaving to survive him children of a deceased brother who were great-grandchildren of testatrix. The issue was whether the testatrix intended that the great-grandchildren should participate in income distribution to the exclusion of the estate of the grandchild dying without issue. The Supreme Court affirming on the opinion of the court below held that in the context of the will and codicils when testatrix used the word "children" she intended "issue". The court based its decision on Clark Estate, supra, and stated at 155 A.2d 352:
The only substantial difference between Clark Estate and the matter before us, is in the Clark Estate the Court was concerned with a distribution of corpus and in our case we are concerned with the distribution of income. We believe that this difference is of no significance. It is this writer's opinion that the analysis of the Lucy C. Carnegie will and codicils will indicate the case before us is much stronger than the Clark Estate.
The court further stated at 155 A.2d 352:
[ 313 Pa. Super. Page 307]
The words that testatrix used in Item Two are exactly what the expression "per stirpes" mean. They denote a class of distributees taking the share of their deceased ancestor by right of representation. These words are: "the children of every deceased child taking their parent's share." The Clark Estate will uses a similar expression after per stirpes, to-wit: "they shall take by representation of their parents". [359 Pa. 411, 59 A.2d 110]
In the instant case the testator did not expressly state that if a "grandchild" died while his own children, or one of them still lived that the deceased child's share of income should then be distributed to his living children. However, as noted in Greenfield Estate, 457 Pa. 114, 121, 321 A.2d 922, 926 (1974):
It is, of course, a truism that "[w]ills are not to be interpreted in a vacuum. A testator's intent must be taken from the meaning of his words, but his will and a dictionary cannot always solve problems of interpretation." Gibson v. McBurney, 399 Pa. 195, 200, 159 A.2d 912, 915 (1960). In ascertaining the meaning of the words used by the testator, courts may, if necessary, look beyond the language of the will itself to the circumstances surrounding him up to the time of its execution. (Emphasis added)
A letter written by testator on December 9, 1932, indicates that he was thinking in terms of his descendants rather than the limiting concept of first and second generations in dealing with income distribution. Testator wrote as follows:
And, at all times, I want it distinctly understood as my desire that my married children keep their affairs in their own names, and the same applies to their children so that our Estate bequests and compensation stay within the family and not pass over to outsiders through marriage.
I want the persons who are married into our family to be taken well care of in the best judgment of the executors-trustees, but I don't want them to have the right and the privilege to pass on to their relatives and their friends
[ 313 Pa. Super. Page 308]
outside of our family any specially valuable consideration. It is the Zerbey Estate and I want it to remain as such for the benefit of my Zerbey descendants. (Emphasis added).
Testator also wrote in the same letter:
I have endeavored to make plain my desires, but I give the Executors-Trustees full power to act for themselves and as near as possible as they can in conformity with my desires as expressed in the body of the Will.
In interpreting wills the law will impute to the testator's words such meaning "as under all the circumstances will conform to his probable intention and be most agreeable to reason and justice." Umberger Estate, 369 Pa. 587, 592-3, 87 A.2d 290, 293 (1959). Further, construction of a will which leads to an unnatural or absurd result should be avoided. Gangwisch Estate, 454 Pa. 476, 311 A.2d 925 (1973). Appellants have a contingent interest in principal in this estate and it appears to us unreasonable to exclude them from participating in their deceased father's share of income, which is a relatively small share and does not in any way diminish the share of income for testator's children, the income beneficiaries in whom he was primarily interested. With respect to the appellants receiving distribution of their deceased father's share of income see Wood Estate, 321 Pa. 497, 500, 501, 184 A. 13, 15, 16 (1936) which states:
[ 313 Pa. Super. Page 309]
In a gift of income, distributees are to be ascertained at each periodic distribution by the formula provided by testator: Rowland's Est., supra; Rowland's Est., 151 Pa. 25 [24 A. 1091]. This is necessarily true even though testator does not specifically direct a periodic payment; for, from the nature of a gift of income, there must be periodic distribution, whether annually, semiannually, or otherwise, and the distributees must be determined anew at each such period. It follows that, where income is given to a class, the distributees entitled to take at any period of distribution are the members of the class who are alive at that time, or, where representation by issue Page 309} is provided, the living issue of deceased members. (Emphasis added).
We believe that it was testator's intention that if any grandchild died leaving children surviving while the trusts continued that the share of income of such deceased grandchild should be distributed to his children living at the time of income distribution. Testator's intent is best carried out by giving a per stirpital share to the living children of his deceased grandson, Joseph Henry Zerbey III, rather than a per capita share with testator's other grandchildren.
We are faced with the final problem as to when, in the matter before us, the appellants should commence receiving a distributive share of income. After appellants' father died in 1958 the trustees distributed income to the testator's remaining children, and there is no dispute concerning this, and to testator's grandchildren. This has continued until the present. The trustees acted in good faith, and on what was a reasonable, although mistaken, interpretation of testator's will. It would be manifestly unjust to allow the appellants to participate in the "grandchildren's" share of income from 1958 to the present. Several accounts have been filed during this time and confirmed by the Orphan's Court. It is only with respect to the present account that appellants have filed exceptions and an appeal is now before this court.*fn5 We therefore direct that appellants shall receive
[ 313 Pa. Super. Page 310]
that share of income received on or after the date of adjudication of the court below of October 1, 1980, which their father would have received if he were still living. Appellants shall not receive any part of the income received by the trustees from July 3rd, 1958 until October 1, 1980. See Dulles Estate, 494 Pa. 180, 431 A.2d 208 (1981).
Order reversed and case remanded for further proceedings consistent with this opinion.
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text:
Amorgos Boutique Hotel, Larnaca
- Free buffet breakfast, free WiFi, and free parking
Main amenities
- 46 guestrooms
- Near the beach
- Restaurant and bar/lounge
- Business center
- Airport shuttle
- 24-hour front desk
- Air conditioning
- Daily housekeeping
- Car rentals on site
- Computer station
- Front desk safe
- ATM/banking services
For families
- Free cribs/infant beds
- Rollaway/extra beds (surcharge)
- Sofa bed
- Connecting/adjoining rooms available
- Private bathroom
- Free toiletries
What's around
- Europe Square (0.2 mi / 0.4 km)
- Finikoudes Beach (0.3 mi / 0.4 km)
- Pierides Archaeological Museum (0 mi / 0.1 km)
- Dimarchiou Square (0.3 mi / 0.4 km)
- Larnaca Marina (0.3 mi / 0.4 km)
Amorgos Boutique Hotel, Larnaca
Hotel Info: 866-539-8117from $47
- Standard Room
- Superior Room (Grand)
- Superior Single Room (Grand)
- Superior Room
- Superior Single Room
- Standard Single Room
More great choices
At a glance
Key facts
Hotel size
- This hotel has 46 rooms
- This hotel is arranged over 5 floors
- 24-hour check-in
- Check-out time is noon
- Express check-in/out
Required at check in
- Credit card or cash deposit required
- Government-issued photo ID required
Travelling with others
- Pets not allowed (service animals welcome)
- Free WiFi and wired Internet access in public areas
- Free WiFi and wired Internet access in rooms
- Airport shuttle (available 24 hours) *
- Free self parking
Nearby Two Star Larnaca hotels
In the hotel
- Free buffet breakfast daily
- Restaurant
- Bar/lounge
- Coffee shop/café
- 24-hour room service
- Bicycle rentals nearby
- Parasailing nearby
- Scooter/moped rentals nearby
- Windsurfing nearby
- Business center
- Conference space size (feet) - 70
- Conference space size (meters) - 6
- One meeting room
- Computer station
- 24-hour front desk
- Tours/ticket assistance
- Dry cleaning/laundry service
- Laundry facilities
- Luggage storage
- Number of buildings/towers - 1
- Elevator/lift
- ATM/banking
- Safe-deposit box at front desk
- Television in common areas
- In-room accessibility
In the room
- In-room climate control (air conditioning)
- Air conditioning
- Minibar
- Coffee/tea maker
- Bathrobes
- Slippers
- Iron/ironing board (on request)
- Soundproofed rooms
- Sofa bed
- Premium bedding
- Balcony
- Private bathroom
- Shower only
- Free toiletries
- Hair dryer
- Satellite TV channels
- Desk
- Free WiFi
- Free bottled water
- Daily housekeeping
- In-room safe
- Connecting/adjoining rooms available
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Also popular with travelers from the USA
Special features
DiningOnsite venue - This restaurant specializes in international cuisine and serves breakfast, lunch, and dinner.
Amorgos Boutique Hotel, Larnaca's small print
Also known as
- Amorgos Boutique
- Amorgos Boutique Hotel
- Amorgos Boutique Hotel Larnaca
- Amorgos Boutique Larnaca
The property has connecting/adjoining rooms, which are subject to availability and can be requested by contacting the property using the number on the booking confirmation.
Optional extras
Rollaway beds are available for an additional charge
Airport shuttle service is offered for an extra charge of EUR 15.00 per vehicle (roundtrip)
We have included all charges provided to us by this hotel. However, charges can vary, for example, based on length of stay or the room you book.
Recent reviews
Excellent 4.2 /5 from 50 reviews
every thing was ok the location excellent for visits restaurants and shopping I want to thank specially Jennifer from the breakfast who gave us some useful information
Difficult to find it.. difficult parking.. this is the only problem..
The hotel is bright and airy and very clean. there are areas that need touching up but every hotel has them. Some just hide them better than others. The staff are very friendly and helpful. Room was cleaned every day and towels were changed. Beds were comfortable and the weather was great. Food was reasonable and the shops had sales on - heaven
I was pleased with the quality of the services from top to bottom, and surprised to say that it is better than I expected.
Nice hotel, some little touches of luxury for the price (free mini bottles of wine and fruit in the room). Good breakfasts and staff who speak impeccable English.
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