Estate of Devine, Matter of

• Decision Date: 29 January 1987
• Citation: 126 A.D.2d 491,511 N.Y.S.2d 231
• Parties: In the Matter of the ESTATE OF Bonaventura E. DEVINE, Deceased. Lawrence W. Krieger, Esq., et al., Petitioners-Respondents; Susan Devine Camilli, Respondent-Appellant, and Mary C. Devine, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 231

511 N.Y.S.2d 231

126 A.D.2d 491

In the Matter of the ESTATE OF Bonaventura E. DEVINE, Deceased Lawrence W. Krieger, Esq., et al., Petitioners-Respondents Susan Devine Camilli, Respondent-Appellant and Mary C. Devine, et al., Respondents.

Supreme Court, Appellate Division First Department.

Jan. 29, 1987.

C.F. Gibbs, C.E. Fedden, New York City, for petitioners-respondents.

J.A. Smith, New York City, for respondent-appellant.

Before MURPHY, P.J., and LYNCH, ROSENBERGER, ELLERIN and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Surrogate's Court, New York County (Renee R. Roth, S.) entered February 18, 1986, denominated an "Order Construing Order For Preliminary Letters Testamentary", which granted petitioner-respondents' motion for an order amending the order, entered April 8, 1985, granting respondents preliminary letters testamentary, to the extent of construing said order as requiring interested parties seeking to have all papers of the decedent made available for examination and copying to comply with the provisions of CPLR Article 31 and denied respondent-appellant Susan Devine Camilli's cross motion for an order of contempt punishing respondents for disobedience of the initial order, affirmed, with costs to the appellant. Petitioners-respondents are directed to comply with the request of respondent-appellant, and the other respondents, to make all papers of the decedent available for inspection and copying pursuant to the order entered on April 8, 1985, which is in full force and effect as of the date of this order, unconditionally, and forthwith.

In March 1985, Bonaventura E. Devine died at the apparent age of eighty-two, leaving a Last Will and Testament dated April 21, 1982, and an estate worth approximately $20,000,000. Respondents Lawrence W. Krieger, the draftsman of the 1982 Will, and The Bank of New York, as the named co-executors, propounded said will for probate. Collectively, respondents constitute the board of directors of the charitable foundation which stands to receive ninety-five percent of the estate under the will. The 1970, 1974, 1977, and 1979 wills executed by the decedent, which were prepared by the law firm of Milbank, Tweed, Hadley & McCloy, made provisions for all of her children and none whatsoever for charitable gifts. Indeed, the three most recent of these wills expressly disclaimed any intent to make charitable gifts, invoking past and future generosity on this score.

Probate was delayed when one of the decedent's children learned that he had been disinherited and committed suicide. Respondents accordingly petitioned the court for the issuance of preliminary letters testamentary pursuant to Section 1412 of the Surrogate's Court Procedure Act (SCPA). They submitted the order in question in the very form they now contend should be changed. In pertinent part, the order essentially tracks the language of subdivision 4 of Section 1412, and directs respondents, as preliminary executors, to "retain custody of and carefully preserve all papers of the decedent and [to] make them available for examining and copying by any person or persons interested in the decedent's estate."

Respondent-appellant Susan Devine Camilli, a resident of Paris, France, one of the five favored children under the 1982 Will, and a major beneficiary and a named executor under each of the decedent's prior wills, requested to examine and copy all of the decedent's papers. The executrix of the deceased son and the three other disinherited children joined in her request. The preliminary executors took the position that they were required "to vigorously and effectively propound the probate of the [decedent's] will", and denied the request, on the ground that the order was subject to the disclosure requirements of CPLR article 31. They submitted the issue to the Surrogate's Court by moving to amend the previous order entered April 8, 1985. The Surrogate granted the motion to the extent of construing the prior order to require compliance with CPLR article 31, and, without comment, denied the cross motion of appellant to punish respondents for contempt for disobedience by order entered February 18, 1986 and opinion reported at 130 Misc.2d 933, 498 N.Y.S.2d 280, sub nom, Will of Devine.

We affirm the order on appeal insofar as the Surrogate's Court did not amend, but only construed, the complained of language in the prior order in accordance with its purported construction of Section 1412(4) of the Surrogate's Court Procedure Act. "It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature [citations omitted], and where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used [citations omitted]." Patrolmen's Benevolent Association v. City of New York, 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338 (1976). Since the language of Section 1412(4) which directs the preliminary executor to make "all papers of the decedent ... available for examination and copying" is clear and unambiguous, the Surrogate erred in resorting to the legislative history of CPLR article 31 to conjecture that Section 1412 does not mean what it says. Meltzer v. Koenigsberg, 302 N.Y. 523, 525, 99 N.E.2d 679 (1951). Reliance upon the legislative history of CPLR article 31 also disregarded CPLR 101 and SCPA 102, which unequivocally state that the CPLR is inapplicable to situations where "other procedure is provided by [the SCPA]" which is "inconsistent" with the CPLR. Section 1412 is inconsistent with CPLR 3120 insofar as under the latter papers must be specified with "reasonable particularity", and disclosure may only be available after appellant files objections. See, Matter of Lachman, 100 Misc.2d 21, 25, 26-27, 418 N.Y.S.2d 512 (Sur.Ct., NY County, 1979). Although this is an apparent issue of first impression, several commentators have interpreted the Section 1412(4) language respecting the making of decedent's papers available to interested parties as a disclosure procedure. 10B Cox-Arenson-Medina, New York Civil Practice--SCPA par. 1412.04(...