Opinion
2003-0751.
Decided August 18, 2004.
John R. Normile, Jr., Esq., Levene, Gouldin Thompson, LLP, Attorney for Estate, Vestal, NY.
Wilbur D. Dahlgren, Esq., Hinman, Howard Kattell, LLP, Guardian ad Litem for Arnold Jean Silvernail, Binghamton, NY.
Herbert A. Kline, Esq., Pearis, Kline, Barber Schaewe, LLP, Guardian ad Litem for Keith Silvernail and Michael Green, Jr., Binghamton, NY.
Margaret Barber, as Executrix of the Will of Anna Lee Barrett, petitions for construction of Paragraph Second of the decedent's will. Paragraph Second provides as follows:
"All the rest, residue, and remainder of me (sic) property, real, personal and mixed, of whatever name, nature or description and wheresoever situate, I give, devise and bequeath as follows:
"A. One-fifth (1/5) thereof, to my brother, ALVA D. SILVERNAIL.
B. One-fifth (1/5) thereof, to my brother, BASIL A. SILVERNAIL.
C. One-fifth (1/5) thereof, to my brother, GLENN A. SILVERNAIL.
D. One-fifth (1/5) thereof, to my sister-in-law, FLORENCE SILVERNAIL
E. One-tenth (1/10) thereof, to SUSAN A. KOLENDA, child of my deceased sister, BERNICE E. SWARTZ.
F. One-tenth (1/10) thereof, to my grandniece, LISA SPRAGUE.
"In the event that any of my brothers noted hereinabove shall predecease me, leaving a wife surviving, then the share of my brother is to go to his wife; in the event that any of my brothers shall predecease me without a wife surviving, then the share of such brother shall go to his children, if any, share and share alike, but in the event that there are no such children, then the share of such brother shall lapse and such lapsed share shall be added to the other shares hereinbefore provided in the ratio that such other shares bear to each other.
"In the event that FLORENCE SILVERNAIL or SUSAN A. KOLENDA shall predecease me, then her share shall be paid to her children surviving me, in equal shares, and if no children of hers survive me, then her share shall lapse and such share shall be added to the other share hereinbefore provided in the ratio that such other shares bear to each other."
The problem is created by the fact that the three brothers and sister-in-law all predeceased the testatrix. Basil Silvernail died without issue. Thus his share lapses and is "added to the other shares hereinbefore provided in the ratio that such other shares bear to each other" so that in effect these became three one-fourth shares and two one-eighth shares.
The disposition of Florence Silvernail's share is equally clear. It passes to "her children surviving me" of whom there are three: Alva Silvernail, Barbara Ann Lane and Arnold Jean Silvernail.
The more significant problem is the disposition of the shares of decedent's other two brothers: Alva and Glenn, both of whom together with their wives also predeceased testatrix. Thus these two shares of the residue pass "to his children." It should be noted that the language of the gift over in the event of the death of one of testatrix's brothers is different than the language for the gift over in the event of the death of her sister-in-law Florence: "children" and not "children surviving me."
Alva Silvernail had six children, of whom three survived the testatrix and three predeceased. Glenn Silvernail had five children, four of whom survived and one did not. The first question presented is therefore whether or not the issue of Alva and Glenn's predeceased children share in the residue. The answer is provided by Matter of Gustafson, 74 NY2d 448 (1989) which held that the word children means just that and does not include more remote issue such as grandchildren of the testator (or in the present case grandnephews and grandnieces). Matter of Gustafson, supra. The result is that only the children of Alva and Glenn share in the residue.
But what happens to the shares of Alva and Glenn's children who predeceased the testator? As noted above the will does not limit the bequest to their "surviving children." At first glance it would seem that all of their children would share and for those children who predeceased it would pass to their issue. The answer is provided by EPTL § 3-3.4, the so called "residue of the residue" provision, which says:
"Whenever a testamentary disposition of property to two or more residuary beneficiaries is ineffective in part, as of the date of the testator's death, and the provisions of 3-3.3 do not apply to such ineffective part of the residuary disposition nor has an alternative disposition thereof been made in the will, such ineffective part shall pass to ands vest in the remaining residuary beneficiary or, if there are two or more remaining residuary beneficiaries, in such beneficiaries, ratably, in the proportions that their respective interests in the residuary estate bear to the aggregate of the interests of all remaining beneficiaries in such residuary estate."
The result of the statute is that the "ineffective part" of the residue passes ratably to the remaining residuary beneficiaries; in other words, the ineffective shares of Alva and Glenn's predeceased children pass proportionately to the remaining residuary beneficiaries.
The question is: who is included when the remaining residuary beneficiaries are determined? All the remaining residuary beneficiaries? Just those remaining within each share of the residue, i.e. Glenn's living children divide his one-fourth share and Alva's living children divide his one-fourth share. The cases are split on this issue. See Turano, Practice Commentary, McKinney's Cons. Laws of NY, EPTL § 3-3.4. Matter of Montano, 137 Misc.2d 518 (Surr.Ct. Ulster Co. 1987) and Matter of Wright NYLJ 1/8/90 p. 28, col. 3 (Surr.Ct. Bronx Co.) hold that the division stays within the respective shares while Matter of Tomson 75 Misc.2d 687 (Surr.Ct. Erie Co. 1973) and Matter of Baker 143 Misc.2d 588 (Surr.Ct. Nassau Co. 1989) hold for division among all the residuary beneficiaries.
It is well settled that the function of the Court in a will construction is to determine and apply the intent of the testator. Matter of Cord 58 NY2d 539 (1983); Matter of Fabbri 2 NY2d 236 (1957). In the present case, the Court finds that the testator intended for each of her named residuary beneficiaries to receive the proportionate share set forth for him or her e.g. one-fifth or one-tenth (now one fourth or one-eighth) as the case may be. Then if the named beneficiary died it was to go first to his wife and then to his children thus keeping the share within each brother's family group. In Montano there were two groups of residuary beneficiaries (a) and (b). The Surrogate stated in a holding that seems equally applicable to the case before the Court:
"The clear intent of the testatrix was to leave one half of her estate to group A and one half to group B. The diminution of either group does not alter the amount of the estate each group was intended to receive. EPTL 3-3.4 was enacted to provide a method of distribution of lapsed bequests within the testamentary scheme and thus avoid assets passing through intestacy. Applying EPTL 3-3.4 to the assets passing through subdivision (a) satisfies the statutory requirement as well as the testamentary scheme.
The intent of the testatrix that each family group should retain its respective share is demonstrated by the fact that she provided for the wives of Glenn and Alva to receive his share if he predeceased. In the case of Florence Silvernail, she was the wife of testatrix's brother, Arnold, who died before the will was executed, further indicating the intent for each brother's family group to receive the respective share designated by testatrix for him and if predeceased then his wife, and if she also died then his children. Matter of Wright, supra.
The result in the instant matter is that the residue of the Anna Lee Barrett estate should be divided as follows:
To Glenn Silvernail's three living children: Carl, Floyd and George: 8.33% (Total 25%).
To Alva Silvernail's four living children: Donald, Kenneth, John and Richard: 6.25%. (Total 25%).
To Florence Silvernail's three living children: Alva, Barbara Ann and Arnold Jean: 8.33%. (Total 25%).
To Susan A. Kolenda Bell: 12.5%
To Lisa Sprague: 12.5%
This decision constitutes the order of the Court.