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Vol. 3 No. 165 Decisions Released August 31, 1995 STATE COURT CASES WILLS AND TRUSTS 38-2-6464 In the Matter of the Estate of Max Resnick; Paul Heller , as Executor v. Mark Resnick et al., App. Div. (17 pp.) Where written contract to make reciprocal, irrevocable wills placed no express restrictions on the surviving party’s freedom to use and dispose of the inherited assets during his lifetime, inter vivos transfer by that party (the testator) will not be set aside absent evidence that it was done in intentional derogation of the rights and interests of residuary legatees. [Approved for publication.] FEDERAL COURT CASES BANKRUPTCY 42-8-6465 Western United Insurance Company v. Debra Ann Hayden et al., Third Circuit (27 pp.) In adversary proceeding, Chapter 13 debtor’s assignment of right to receive future periodic payments under an annuity contract is enforceable since a protection-from creditors clause providing that the payments would “not be subject to the debts, contracts or engagement of any person entitled to such payments” under the contract refers only to involuntary attachments, while voluntary assignments of interest are expressly permitted. CIVIL PROCEDURE 07-7-6466 Daryl Abbent et al. v. Eastman Kodak Company et al., Dist . Ct. (29 pp.) Although dismissal under Fed. R. Civ . Proc. 37 for failure to comply with a discovery order was appropriate under four of the six factors set out in Poulis v. State Farm Fire & Casualty Co., 747 F. 2d 963 (3d Cir. 1984), the sanction will not be imposed as to parties whom the court cannot find were personally responsible (factor one) and hence cannot be found wilfully noncompliant (factor four). CRIMINAL LAW AND PROCEDURE 14-2-6467 United States v. Joseph Giamba et al., Dist. Ct. (298 pp.) Court granted defendants’ pretrial motions, (1) to join in all appropriate pretrial motions filed by co-defendants, (2) to file additional motions as to new materials obtained in discovery and (3) to require government to provide defendants with notice of general nature of prior-bad-acts evidence under FRE 404(b) two weeks prior to trial, but court denied all other pretrial and trial motions by defendants, who were convicted, and their post-trial motions as well. [Approved for publication.] END

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