Thall's Estate, In re

• Decision Date: 07 July 1966
• Citation: 219 N.E.2d 397,18 N.Y.2d 186,273 N.Y.S.2d 33
• Parties: , 219 N.E.2d 397 In the Matter of the ESTATE of Solomon THALL, Deceased. Albert A. SARAFAN, as Surviving Trustee of the Estate of Solomon Thall, Deceased, Respondent-Appellant; Mary LANDIS, Individually and as Executrix of Emanual Landis, Deceased, Appellant-Respondent; Barbara Landis et al., Respondents-Appellants, et al., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 33

273 N.Y.S.2d 33

18 N.Y.2d 186, 219 N.E.2d 397

In the Matter of the ESTATE of Solomon THALL, Deceased.

Albert A. SARAFAN, as Surviving Trustee of the Estate of

Solomon Thall, Deceased, Respondent-Appellant; Mary LANDIS,

Individually and as Executrix of Emanual Landis, Deceased,

Appellant-Respondent; Barbara Landis et al.,

Respondents-Appellants, et al., Respondent.

Court of Appeals of New York.

July 7, 1966.

Harold D. Klipstein, New York City, Bernard Fliegel, New York City, and Robert A. Klipstein, Scarsdale, for Mary Landis, appellant-respondent.

Norman I. Klein and William F. Beeler, New York City, for Alice Thall, respondent-appellant.

Donald Zimmerman, New York City, for Barbara Landis, respondent-appellant.

Roderick B. Travis, White Plains, special guardian for unknown heirs, respondent-appellant, pro se.

Bertram D. Sarafan, Brooklyn, and John M. Dailey, Scarsdale, for Albert A. Sarafan, respondent-appellant.

Harold Gellman, Brooklyn, for Elias Thall and others, respondents-appellants.

FULD, Judge.

Solomon Thall died in September, 1943, survived by his wife, a sister and issue of a deceased brother. By a will executed in 1941, he left his residuary estate in trust for the life of his wife with the income to be shared by her and by the testator's sister Sophie Levitsky and Sophie's two sons, Emanuel Landis and Ben Ami Landis. Upon the death of the widow, the corpus of the trust, after payment of certain legacies, was to go to Sophie, Emanuel and Ben Ami, 'share and share alike'. There then follow these clauses pertaining to the corpus:

'In the event that my sister Sophie Levitsky shall predecease me or surviving me shall predecease my said wife, I give and bequeath her share to her sons Emanuel Landis and Ben Ami Landis, share and share alike.

'Should either Emanuel Landis or Ben Ami Landis predecease me or predecease my said wife, I give and bequeath the share of the one so dying to his surviving child or children, and if more than one, share and share alike.

'If either of my said nephews Emanuel Landis or Ben Ami Landis should predecease me or surviving me shall predecease my said wife without leaving any child or children him surviving, I direct that his share shall be paid to his surviving brother.'

The testator's widow is still alive. Ben Ami Landis died in 1956 survived by his daughter Barbara Ann. Sophie Levitsky died in 1961, and Emanuel Landis died without issue in 1962.

The will makes no provision for disposition of the income provided for Sophie and her two sons in the event which actually occurred, the death of all of them before that of the testator's widow, and this hiatus renders a construction of the will necessary at this time. The will likewise fails to provide for disposition of the corpus under the circumstance which in fact came to pass, namely, the death of one of Sophia's sons without issue After the death of the other son who was survived by a child.

The Surrogate decided that both the net income (after deduction of the widow's interest) and the entire corpus (excluding certain specific bequests) should be equally divided, one half to Ben Ami's daughter, Barbara Ann, and one half to those persons who were the testator's distributees on the date of his death. On appeal, the Appellate Division modified the Surrogate's decree by providing (1) that all of the net Income was payable to the testator's distributees and (2) that, upon the death of the testator's widow, the entire corpus should be paid to Barbara Ann Landis. In our view, Barbara Ann is entitled to all of that portion of the net income not payable to the widow and, upon the latter's death, is to receive the whole of the corpus, except for the specific bequests.

The first rule of testamentary construction, of course, is that a will be interpreted to reflect the actual intention of the testator and the second that this intention be ascertained from a reading of the document as a whole. (See, e.g., Matter of Dammann, 12 N.Y.2d 500, 504--505, 240 N.Y.S.2d 968, 969, 970, 191 N.E.2d 452, 453; Matter of Larkin's Will, 9 N.Y.2d 88, 91, 211 N.Y.S.2d 175, 177, 172 N.E.2d 555, 557; Matter of Fabbri's Will, 2 N.Y.2d 236, 240, 159 N.Y.S.2d 184, 187, 140 N.E.2d 269, 271; Williams v. Jones, 166 N.Y. 522, 532--533, 60 N.E. 240, 242.) 'If a 'general scheme' be found, 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. (Williams v. Jones, 166 N.Y. 522, 533, 60 N.E. 240, 242, supra.)

Corollary to these broad principles is the doctrine that a court may 'give effect to an intention or purpose, indicated By implication, where the express language of the entire will manifests such an intention or purpose' and the testator has simply neglected to provide for the exact contingency which occurred. (Matter of Selner's Estate, 261 App.Div. 618, 620, 26 N.Y.S.2d 783, 785, affd. 287 N.Y. 664, 39 N.E.2d 287; see, also, Matter of Gulbenkian's Will, 9 N.Y.2d 363, 370, 214 N.Y.S.2d 379, 382, 174 N.E.2d 481, 483; Close v. Farmers' Loan & Trust Co., 195 N.Y. 92, 100, 87 N.E. 1005, 1007; Masterson v. Townshend, 123 N.Y. 458, 462, 25 N.E. 928, 929, 10 L.R.A. 816.) As the Appellate Division wrote in the Selner case (261 App.Div., at pp. 620--621, 26 N.Y.S. at p. 786, supra),

'If * * * the property or estate claimed to be bequeathed or devised by implication, in a contingency which has occurred, has been made the subject of an express bequest or devise in another contingency, which did not occur, then effect may be given to such bequest or devise by implication, in the contingency which did occur, if a reading of the entire will makes manifest that such was the intention of the testator'.

In the case before us, the testator's intent, as manifested in his will, is plain. Outside of assuring his wife a minimum income during her lifetime, his paramount concern was for his sister and her two sons. His widow and his collateral relatives were left no part of the bulk of his estate. Indeed, in his bequests to the latter, token $1,000 gifts, he repeated more than once his direction that their legacies were to lapse if they predeceased him--or his widow, in the case of gifts from the trust corpus. Quite different were the provisions of the testator's will for his sister and her sons. In addition to receiving that portion of the trust income not bequeathed to his wife, they were to have the entire trust corpus--except for small gifts to collaterals--upon the wife's death. The testator's interest in his sister and her sons also appears in other parts of his will, for instance, in his bequests of personal property to them.

In disposing of his residuary estate, it is evident that the testator inadvertently neglected to foresee every eventuality. As indicated, he provided that Sophie's share, if she predeceased his widow, was to be divided between Emanuel and Ben Ami; that, if either Emanuel or Ben Ami predeceased the widow, the share of the one so dying was to pass to his surviving children, unless he died without issue, in which event his share was to be paid to his surviving brother. Manifestly, the testator expected that Sophie would die before her sons and that each of the sons thereafter dying would be survived by either a child or a brother. However, he failed to anticipate--what actually came to pass--that the second of the sons would die without issue, survived not by his brother but by the latter's child. Quite obviously, what the testator most desired was that his estate should ultimately go to, and remain within, a particular branch of his family. He could not have intended the...