Bieley, Matter of

• Decision Date: 12 May 1998
• Citation: 91 N.Y.2d 520,673 N.Y.S.2d 38,695 N.E.2d 1119
• Parties: , 695 N.E.2d 1119, 1998 N.Y. Slip Op. 4557 In the Matter of Sally L. BIELEY, Deceased. Maura Dausey, Respondent; Albert Orans, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 38

673 N.Y.S.2d 38

91 N.Y.2d 520, 695 N.E.2d 1119, 1998

N.Y. Slip Op. 4557

In the Matter of Sally L. BIELEY, Deceased Maura Dausey, Respondent Albert Orans, Appellant.

Court of Appeals of New York.

May 12, 1998.

Connors and Sullivan, P.C., Brooklyn (Michael N. Connors and Peter G. Gray, of counsel), for appellant.

Glazer & Gottlieb, New York City (May Glazer and Wilma P. Gottlieb, of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Judge.

In this proceeding to construe a will, we must decide whether a clause, directing that the testatrix' residuary estate was to be held in trust for the life of her mother, if her mother survived her, and upon her mother's death distributed to two named beneficiaries or their descendants, can be given effect where the life beneficiary predeceased the testatrix and the will contained no express direction for an alternative distribution of the residuary estate.

I.

By will executed on June 12, 1986, the testatrix, Sally L. Bieley, made certain detailed bequests, namely, an original portrait, an automobile, other personal property and a fixed sum of money, to one cousin, Gloria Evans, and several friends. Testatrix' residuary estate was to be placed in trust for the life of her mother and, upon her mother's death, the principal was to be divided equally between two named beneficiaries or to their descendants, in the event either of the named remainderpersons predeceased her. Specifically, the residuary clause provided:

"FOURTH: All the rest, residue and remainder of my estate, real personal or otherwise and wheresoever situate, including any lapsed legacies or bequests, hereinafter called my residuary estate, shall be disposed of as follows:

"(a) If my mother, FANNIE BIELEY, shall survive me, I give, devise and bequeath my entire residuary estate to my Executor and Trustee hereinafter named, in trust, to apply so much of the income therefrom to the support and maintenance of my said mother as my Executor and Trustee, in her absolute discretion, deems necessary or advisable, accumulating any balance of the income and adding the same to principal.

* * *

"(b) Upon the death of my said mother, the then principal shall then be paid over absolutely in equal shares to such of MARY M. SCHWENK and DOREEN GLORIA Mc INTOSH as shall survive me and to the descendants of such as them as may predecease me, per stirpes" (emphasis supplied).

Fannie Bieley died on July 12, 1989, predeceasing her daughter. Following the testatrix' death on April 3, 1995, petitioner Dausey, executor and the beneficiary of certain personal property and household effects, applied to Surrogate's Court for the will's probate. In a written report which interposed no opposition to petitioner's application, the Public Administrator of New York County noted, however, that "[n]o disposition of the residuary estate appears to have been provided for in the event that [the testatrix'] mother predeceases, which she in fact did," and recommended that the court "restrict distribution of the residuary estate until a construction of the will, on notice to all interested parties," had been completed. The Surrogate subsequently admitted the will by decree, but prohibited distribution of the residuary estate pending a determination as to the construction of article FOURTH.

Petitioner sought such a determination pursuant to SCPA 1420, contending that the testatrix' intent, under subpart (a), was to create a life estate for her mother, but only if her mother survived her, and that the principal of the testamentary trust was to be paid over to the named beneficiaries upon her own death in the event her mother predeceased her. Petitioner supported this construction by noting that the testatrix, having left behind no spouse, parent, grandparent, sibling or child, had close personal ties with both of the remainderpersons named in article FOURTH subpart (b): Ms. Schwenk had been Sally Bieley's secretary and confidante during her professional career, and a personal friend thereafter; Ms. McIntosh had cared for the testatrix' mother over a period of many years.

Respondent Orans, a first cousin and intestate distributee, filed an answer to the petition, alleging that article FOURTH subpart (a) created a trust if and only if the testatrix' mother survived the testatrix and, thus, any remainder interest in the principal of the trust was contingent upon the mother's survival--the failure of which destroyed that interest. Consequently, respondent asserted that because the residuary estate had not been properly disposed of in the will, it should be distributed according to the law governing intestate succession (see, EPTL 4-1.1) to the testatrix' next of kin, six first cousins--descendants of predeceased uncles or aunts--with whom the testatrix had virtually no contact. ¹

The Surrogate, relying, in part, on extrinsic evidence (i.e., notes and an affidavit submitted by the attorney-draftsperson), concluded that the attempted creation of a testamentary trust under article FOURTH subpart (a) did not serve to defeat distribution of the residuary estate to the two named beneficiaries under subpart (b), since the latter paragraph "clearly express[ed] the intention" that the residuary estate "be distributed * * * upon the death of [the testatrix'] mother * * * whenever that should occur." The Appellate Division affirmed (239 A.D.2d 280, 658 N.Y.S.2d 266), and granted respondent objector leave to appeal, certifying the following question for our review: "Was the order of Surrogate's Court, as affirmed by this Court, properly made?"

Because we conclude unhesitatingly that the will, read as a whole, indicates that the testatrix intended to make a bequest of the residuary estate under existing circumstances to the two beneficiaries named in article FOURTH subpart (b) and, thus, that the instrument contains a valid gift thereof by implication, we now affirm.

II.

This Court has long recognized that, in construing a will, the intention of the testator must be our "absolute guide" (Williams v. Jones, 166 N.Y. 522, 532, 60 N.E. 240; see also, Haug v. Schumacher, 166 N.Y. 506, 513, 60 N.E. 245 ["It is always the effort of the court to sustain, if possible, the will of the testator and to give force and effect to the scheme that he has devised for the benefit of those depending upon him"]; Matter of Selner, 261 App.Div. 618, 622, 26 N.Y.S.2d 783, affd. without opn. 287 N.Y. 664, 39 N.E.2d 287). That intent is to be ascertained "not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed" (Matter of Fabbri, 2 N.Y.2d 236, 240, 159 N.Y.S.2d 184, 140 N.E.2d 269 [emphasis supplied], rearg. denied 2 N.Y.2d 979, 162 N.Y.S.2d 618, 142 N.E.2d 652; see also, Matter of Larkin, 9 N.Y.2d 88, 91, 211 N.Y.S.2d 175, 172 N.E.2d 555; Williams v. Jones, 166 N.Y., at 532-533, 60 N.E. 240, supra ). Thus, where the entire will manifests a general testamentary scheme, it is "the duty of the courts to carry out the testator's purpose, notwithstanding that 'general rules of interpretation' might point to a different result" (Matter of Thall, 18 N.Y.2d 186, 192, 273 N.Y.S.2d 33, 219 N.E.2d 397).

Equally well established is the axiom of testamentary construction that the testator is presumed to have intended to dispose of the whole estate by will, and did not intend intestacy as to any part of it (see, Matter of Dammann, 12 N.Y.2d 500, 504-505, 240 N.Y.S.2d 968, 191 N.E.2d 452; Schult v. Moll, 132 N.Y. 122, 125, 30 N.E. 377; see also, Matter of Gibbons, 61 Misc.2d 790, 306 N.Y.S.2d 236). The presumption against intestacy is particularly weighty where the subject of the gift is the residuary estate (Matter of Hayes, 263 N.Y. 219, 224-225, 188 N.E. 716, rearg. denied 264 N.Y. 459, 191 N.E. 513; see also, Matter of Nurse, 35 N.Y.2d 381, 388, 362 N.Y.S.2d 441, 321 N.E.2d 537; Matter of Birdsell, 271 App.Div. 90, 95, 63 N.Y.S.2d 146, affd. without opn 296 N.Y. 840, 72 N.E.2d 26). As we made clear in Hayes:

" 'The idea of any one deliberately purposing to die testate as to a portion of his estate, and intestate as to another portion, is so unusual, in the history of testamentary dispositions, as to justify almost any construction to escape from it' " (Matter of Hayes, supra, 263 N.Y., at 225, 188 N.E. 716, quoting 2 Redfield, Wills, at 235 [3d ed] ).

(See also, Matter of Fabbri, 2 N.Y.2d, at 243, 159 N.Y.S.2d 184, 140 N.E.2d 269, supra; Haug v. Schumacher, 166 N.Y., at 514-515, 60 N.E. 245, supra; Matter of Haber, 281 App.Div. 383, 385-386, 119 N.Y.S.2d 843, affd. without opn. 306 N.Y. 706, 117 N.E.2d 804.)

Since our endeavor, therefore, is to discern and effectuate the intention or purpose of the testatrix, where the express language of the entire will, rather than disjointed parts thereof, reveals such an intention or purpose, the possibility follows that the testatrix may dispose of property by implication as well as through formal disposition. The implication, of course, must be a necessary one, not merely one that it is possible or probable (see, Central Union Trust Co. v. Trimble, 255 N.Y. 88, 93, 174 N.E. 72; Matter of Winburn, 265 N.Y. 366, 374-375, 193 N.E. 177), and it must be such as to "leave no hesitation in the mind of the court" as to what was the testatrix' dominant purpose (Masterson v. Townshend, 123 N.Y. 458, 463, 25 N.E. 928; see also, Bradhurst v. Field, 135 N.Y. 564, 568, 32 N.E. 113; Post v. Hover, 33 N.Y. 593, 599 [the implication must be so "strong * * * that the contrary cannot be supposed"] ).

Thus, where the entire will unquestionably reveals a conscientious effort to provide for a complete disposition of decedent's property, but the testator has inadvertently failed to foresee every eventuality, the presumption against intestacy may be applied and a gift by implication found. This principle still obtains...