Opinion
April 20, 1998
Appeal from the Surrogate's Court, Nassau County (Radigan, S.)
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
An ambiguous devise of the property in a will or a trust may be interpreted or construed by a court, but a missing devise cannot be inserted ( see, Dreyer v. Reisman, 202 N.Y. 476; see also, Matter of Durkin, 165 Misc. 366). Since the grantor had no obligation to fund the trust, and the trust instrument failed to set forth the property intended to be included in the trust res, the Surrogate's Court correctly granted partial summary judgment to the petitioner.
Ritter, J.P., Sullivan, Krausman and Luciano, JJ., concur.