Ricks' Will, In re

• Citation: 258 N.Y.S.2d 171,45 Misc.2d 919
• Parties: In re RICKS' WILL. Application of Jane Ricks KING, John T. Ricks and Manufacturers Hanover Trust Company as Executors of the Last Will and Testament of Sybil Hayward Ricks, deceased, for a construction of Article Fourteenth (c) of said Will. Surrogate's Court, Nassau County
• Decision Date: 14 April 1965
• Court: New York Surrogate Court

Page 171

258 N.Y.S.2d 171

45 Misc.2d 919

In re RICKS' WILL Application of Jane Ricks KING, John T. Ricks and Manufacturers Hanover Trust Company as Executors of the Last Will and Testament of Sybil Hayward Ricks, deceased, for a construction of Article Fourteenth (c) of said Will.

Surrogate's Court, Nassau County.

April 14, 1965.

Jackson, Nash, Brophy, Barringer & Brooks, New York City, for petitioners, by Williamson Pell, Jr. and Henry A. Lowet, New York City, of counsel.

Breed, Abbott & Morgan, New York City, for respondents, by Walter R. Shepard and H. William Van Wagenen, Jr., New York City, of counsel.

JOHN D. BENNETT, Surrogate.

In this construction proceeding the executors request a determination as to whether two adopted children of the testatrix' deceased son, James B. Ricks, share in a bequest of one-fifth of the residuary estate to the children of the deceased son.

The critical portion of the will, revealing a number of words stricken out prior to execution, reads: 'Fourteenth: (c) I give, devise and bequeath one of such equal shares as follows: per capita, to such of the children of my late son, JAMES B. RICKS, deceased, as shall be living at the date of my death.'

The surviving children of James B. Ricks include three natural children of his marriage to Ethel Gertrude Ricks, his first wife, and two adopted children, the natural children of his surviving spouse, Doris, by a prior marriage, whom he adopted in 1953. Doris, now known as Doris Lewis, remarried in 1962 following the death of her husband in 1959.

In a prior will dated in June of 1956, the testatrix gave detailed instructions as to the treatment of children adopted by any of her children, specifically including them within the definition of 'lawful issue' for the purpose of sharing in the remainder of one-fifth of the residuary for the benefit of her son James, but excluding them from sharing in a portion of the income from such share given to the 'lawful issue' of James.

Following the death of her son James a codicil, dated August 27, 1959, continued the one-fifth share in trust for the benefit of James' surviving spouse Doris 'during her lifetime so long as she remains unmarried' to the extent of two-thirds of the income. The treatment and distinction between adopted and natural children of James was continued undisturbed.

The testimony given by Mr. McGorry, one of the subscribing witnesses and an officer of the corporate fiduciary, relating to the circumstances surrounding the execution of the last will was objected to by the respondents. The proffered testimony was received subject to a motion to strike in order that a complete record would be available on any possible appeal. Mr. McGorry testified to several discussions with the testatrix in regard to drafting her last will. At some of the discussions held at the testatrix' home, the will draftsman who is now deceased was present. At one or more of the meetings Mr. McGorry stated that the testatrix instructed the draftsman to eliminate James' family entirely from the will, and that this instruction was given in connection with a reference to the remarriage of Doris. When pressed as to whether the testatrix disliked the remarriage of her former daughter-in-law, Mr. McGorry answered: 'No, she reacted to it and it seems to me that her reactions were mixed somewhat. It was apparent to me that she liked her former daughter-in-law, but for some reason which I didn't get quite clear she seemed to be put out by the marriage or the timing of it or the fact that she hadn't learned about it in good time or something of the kind.' (s.m. p. 21)

Apparently, as the result of subsequent discussions in which Mr. McGorry was not a party, the final draft as originally prepared provided for James' children, together with the adopted children of Ethel Gertrude Ricks (an obvious misstatement, since the adopted children were the natural children of Doris).

On January 11, 1963, the final proposed draft was presented to the testatrix for her signature. The testimony of Mr. McGorry concerning that occasion is as follows: 'Shortly after we arrived Mr. Sculley produced the original of the will that it was intended that Mrs. Ricks execute and he handed it to her as I recall. She looked at portions and he called her attention to different portions or read them off to her, and when she arrived at this section you refer to she objected to the inclusion of the adopted children, so Mr. Sculley asked her if it was her intention that the adopted children be eliminated from the will and she said that was so. Thereupon Mr. Sculley made the strikeout that we see here and asked Mrs. Ricks and myself to initial it after he himself initialed it.' (s. m. pp. 13, 14)

The executors contend that nothing could be more obviously evident of the testatrix' intention to exclude the adopted children than her act of striking out the phrase 'and adopted children of Ethel Gertrude Ricks and' and inserting the word 'of' before the words 'my late son' prior to execution.

In answer to this seemingly persuasive contention, the respondents argue that changes or strikeouts in a will made prior to execution form no part of the will, and may not be considered as an aid in its construction. While there appears to be no New York case directly in point, the case of Ruth v. Jester, 198 Va. 887, 96 S.E.2d 741, cited by the respondents supports this argument.

The respondents likewise point to the oft-repeated admonition that the testatrix' direct statements of intention may no be resorted to with but few exceptions. They further maintain that the use of the word 'children' by the testatrix in and of itself...