Salterini's Estate, In re
| Decision Date | 13 May 1957 |
| Parties | In re ESTATE of John B. SALTERINI. Surrogate's Court, New York County |
| Court | New York Surrogate Court |
Simpson, Thacher & Bartlett, New York City, for Nan B. Salterini, executrix.
Gullie B. Goldin, New York City, executor, pro se.
Tell, Cheser, Werner & Breitbart, New York City (Solomon M. Cheser, New York City, of counsel), for Marcia Wilner, respondent.
Friedman & Bareford, New York City (Philip L. Winter and Laurence B. Rossbach, Jr., New York City, of counsel), for Nan B. Salterini, individually, respondent.
DI FALCO, Surrogate.
In Paragraph First of the will which is the subject of this proceeding for its construction the testator directed the payment of his debts and funeral expenses omitting any reference to the discharge of obligations for payment of taxes and the cost of administering his estate. Paragraph Third contains a bequest to the widow of all of the testator's tangible personal property which has an estimated value, apparently conceded to be accurate, of $2,500. In Paragraph Fifth provision is made for the payment of a legacy of $10,000 to the first wife of the testator while Paragraphs Fourth and Sixth dispose of other property with which we have no present concern.
Paragraph Seventh contains the text which gives rise to the question at issue. There the testator directed that 'all the rest residue and remainder of (his) property of every kind and description * * * after * * * the payment of all administration expenses, taxes, debts and other charges against (his) estate (should) be divided into one hundred (100) equal parts.' Fifty of such parts were then left to the widow subject to the operation of the proviso that 'if this legacy plus all other legacies to my said wife * * * shall constitute less than one-half ( 1/2) of all my property and estate remaining after providing for the dispositions hereinbefore in clauses First and Fifth set forth, this legacy shall be increased by so much of all my remaining property as, together with this legacy shall constitute one-half ( 1/2) of all my said property and estate, and each of the remaining dispositions hereinafter set forth in this Clause Seventh shall be proportionately reduced.'
This is the set for the stage which sees the widow arguing that her bequest is to be measured by deducting from the gross estate the sum of the debts, funeral expenses (Paragraph First), and the legacy of $10,000 to the testator's first wife (Paragraph Fifth), dividing the difference in half and adding to that figure the value of the tangible personal property (Paragraph Third). It is the position of the remaining residuary legatees, on the other hand, that the subtrahend employed in this formula must be increased by the addition of the amount required for the payment of all legacies, estate taxes and administration expenses.
At this point it is appropriate for the court to consider the application of the widow's co-executor that oral proof be received for the purpose of resolving the ambiguities which are said to mark the will and to obscure the intention of the testator. By this time it should be clear that the rules of evidence applicable to the New York law of estates forbid the reception of such testimony, assuming it to be available. If the court were permitted to so far depart from the statutory and judicially fixed standards prescribed in such situations as to substitute the scrivener's recollection of what the deceased had told him for the language of the will itself it becomes plain at once that the instrument as the repository of the testator's testamentary program would cease to have any usefulness whatsoever. That is the reason why the courts have consistently declined to permit the introduction of extrinsic evidence except in those cases where the ambiguity exists outside the instrument or where the language of the will gives rise to an otherwise irreconcilable inconsistency, contains a manifest conflict in terms, or is marked by gross uncertainty (Dwight v. Fancher, 245 N.Y. 71, 156 N.E. 186; Matter of Tamargo, 220 N.Y. 225, 115 N.E. 462; Matter of Smith's Will, 254 N.Y. 283, 172 N.E. 499, 72 A.L.R. 867; Brown v. Quintard, 177 N.Y. 75, 69 N.E. 225). None of these conditions exist here and the application to permit the receipt of extrinsic evidence is accordingly denied.
Coming now to an analysis of the language employed by the testator to fix the gift to his wife there is to be found a blunt and explicit definition of its dimensions....
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