Opinion
No. 2010–362527/C.
09-30-2014
Matter of Discovery Proceeding, WILL OF FRANK DELISA, a/k/a Francesko Delisa, Deceased.
Annmarie P. Venuti, Esq., New Fairfield, CT, for Thomas DeLisa. Randolph Z. Volkell, Esq., Merrick, for John DeLisa.
Annmarie P. Venuti, Esq., New Fairfield, CT, for Thomas DeLisa.
Randolph Z. Volkell, Esq., Merrick, for John DeLisa.
Opinion
EDWARD W. McCARTY III, J.
Before the court is a verified petition, filed on March 12, 2014, by John DeLisa, as executor of the estate of Frank DeLisa, for an order pursuant to SCPA 2103 and 2104 directing the continuation of the examination of Thomas DeLisa commenced on January 30, 2014, and for delivery to the executor of estate property in the custody or control of Thomas DeLisa.
BACKGROUND
Frank DeLisa (the “decedent”) died on November 14, 2008, a resident of Oyster Bay. He was survived by his three children, Thomas DeLisa, John DeLisa and Anna Rosa Diana (“Thomas,” “John,” and “Anna Rosa”). Decedent left a last will and testament, dated July 6, 2006, which was admitted to probate by this court on June 13, 2013. The dispositive portion of the will, in its entirety, provides the following:
“THIRD: I give and devise to my son, THOMAS DeLISA, my two-family house and lot located at 15 4th Street, Glen Cove, N.Y. 11542. My said son THOMAS shall be responsible for payment of any mortgage encumbering said property at the time of my death. I have devised this property solely to my son, THOMAS, and not included my two other children, JOHN F. DeLISA and ANNA ROSA DIANA, not for lack of love, but because JOHN and ANNA each received substantial monies from me towards their weddings and towards the purchases of their homes, while THOMAS, has not received any such monies.
“FOURTH: I give and devise my interest in the house and lot located at 279 Hillcrest Lane, Oyster Bay, N.Y. 11771, together with all of the furniture, furnishings and household contents therein, to my son, THOMAS DeLISA. I have devised my interest in this property solely to my son, THOMAS, and not to my two other children, JOHN F. DeLISA and ANNA ROSA DIANA, not for lack of love, but because of the reasons set forth in Article “THIRD” ' of this, my Last Will and Testament, and also because my said son THOMAS, has cared for me and paid the majority of the mortgage payments of the mortgage encumbering said property. My said son THOMAS shall be responsible for payment of the balance of any mortgage encumbering said property at the time of my death.
“FIFTH: I give, devise and bequeath all the rest, residue and remainder of my estate, of every kind, nature and sort whatsoever, real, personal, mixed, legal or equitable and wheresoever situated, which I may own, possess, be seized of or entitled to at the time of my death, together with the income, rents, profits, interest and increment thereof, and which may arise and accrue therefrom, to my children, JOHN F. DeLISA, THOMAS DeLISA and ANNA ROSA DIANA, in equal shares, and thereafter to their issue, per stirpes.
In the event that any of my aforesaid children shall predecease me, without issue surviving, then my deceased child's share shall be divided equally between my surviving children, or should two of my said children have predeceased me without issue surviving, then to my surviving child.”
John advises that Thomas has had exclusive possession of decedent's residence and its contents since decedent's death, and possibly earlier. Although John has demanded delivery of the personal property located in decedent's residence, Thomas has refused and claims that he has rightful ownership of decedent's personal property.
At Thomas's deposition held at the courthouse on January 30, 2014, Thomas's attorney sought to stay the examination. A ruling by a Court Attorney denied the stay but, based on the provisions of Article FOURTH regarding the personal property at the premises, precluded John from making any inquiry regarding the contents of the premises, it appearing that the contents had been bequeathed to Thomas under that Article.
Movant's counsel now argues that based upon the rule of ejusdem generis, his examination of the respondent should be permitted to proceed. The court agrees and the motion is therefore granted. Although this is not a construction proceeding, the parties have raised an issue of construction and it is therefore appropriate for the court to construe the will in this proceeding (SCPA 201[3], 202 ; Matter of Froehlich, 129 Misc.2d 706, 707 [Sur Ct, Nassau County 1985] ). The court notes that Anna Rosa Diana, sister of John and Thomas and the only other person with an interest in the estate has filed an affidavit in support of the position taken by John.
“The rule [of ejusdem generis ] is that where certain things are enumerated, and such enumeration is followed or coupled with a more general description, such general description is commonly understood to cover only things ejusdem generis [i.e., of the same kind or class] with the particular things mentioned. In such case it is presumed that the testator had only things of that class in mind” (Matter of Robinson, 203 N.Y. 380, 386 [1911], citing Given v. Hilton, 95 U.S. 591 [1877] ). Thus, a seemingly broadly inclusive bequest of “all of my clothing, jewelry, and personal effects, all of my household furniture and furnishings, automobiles, and all other tangible personal property of whatever kind and wheresoever located” was held not to include $1.7 million worth of gold bars held by the decedent in a bank vault as it was not of the same kind or class as the other items mentioned in the bequest (Matter of Serio, 24 Misc.3d 1239[A] [Sur Ct, Chemung County 2009] ).
Also, “[t]he cases generally recognize that the term personal property in disposing of assets in a decedent's estate found within a building or house do not include securities, or stock, or money represented by a passbook, or an instrument purporting to constitute a forgiveness of debt” (Matter of Falvey, 15 A.D.2d 415, 421 [4th Dept 1962] [internal citations omitted], affd 12 N.Y.2d 759 [1962] ). Finally, the application of the rule of ejusdem generis is particularly apt where the will contains a residuary clause and to do otherwise would completely or substantially deplete the residuary estate (Matter of Reynolds, 124 N.Y. 388, 398–399 [1891] ; Matter of Thompson, 217 N.Y. 111, 116 [1916] ).
Here, the general term “household contents” follows the somewhat more specific terms “furniture” and “furnishings” limiting the expanse of “household contents” to things like furniture and furnishings and things of that kind or class.
The motion is therefore granted. The continued examination of the respondent will take place at the courthouse on December 2, 2014 at 9:30 a.m.
This constitutes the decision and order of the court.