Opinion
11618 File 2746A/16
06-04-2020
IN RE Emlie ANDERSON, etc. Deceased. The Estate of Joan Anderson by its Executrix, Emlie Anderson, et al., Petitioners-Appellants, v. Sue Renee Bernstein, etc., et al., Respondents–Respondents.
Scarola Zubatov Schaffzin PLLC, New York (Richard J.J. Scarola of counsel), for appellants. Farrell Fritz, P.C., Uniondale (Robert M. Harper of counsel), for Natural Resources Defense Counsel, Inc., respondent. Holland & Knight LLP, New York (Sean C. Sheely of counsel), for Medecins Sans Frontieres USA, Inc. and Save the Children Federation, Inc., respondents. Letitia James, Attorney General, New York (Joshua M. Parker of counsel), for Office of the New York State Attorney General, respondent.
Scarola Zubatov Schaffzin PLLC, New York (Richard J.J. Scarola of counsel), for appellants.
Farrell Fritz, P.C., Uniondale (Robert M. Harper of counsel), for Natural Resources Defense Counsel, Inc., respondent.
Holland & Knight LLP, New York (Sean C. Sheely of counsel), for Medecins Sans Frontieres USA, Inc. and Save the Children Federation, Inc., respondents.
Letitia James, Attorney General, New York (Joshua M. Parker of counsel), for Office of the New York State Attorney General, respondent.
Renwick, J.P., Gische, Webber, Oing, Moulton, JJ.
Order, Surrogate's Court, New York County (Nora S. Anderson, S.), entered on or about February 28, 2019, which denied the petition brought pursuant to SCPA 1420 to construe a 30–day survivorship clause in the decedent Jill Morris's will as inapplicable to certain bequests to Joan Anderson, unanimously affirmed, without costs.
Article Eighth of the decedent Jill Morris's will states: "I make the following gifts of tangible personal property to the following entities ... and persons (provided that he or she survives me by thirty (30) days)." It then makes 11 gifts to 12 beneficiaries, including Joan Anderson, to whom the decedent bequeathed $100,000, two residences, and various tangible property. Anderson died 12 days after the decedent's death.
The Surrogate's Court correctly concluded that a fair reading of Article Eighth "together with the will as a whole" supports the conclusion that the decedent intended all assets of substantial value, including the residences, cash, and all other property in Article Eighth, to pass subject to a survivorship condition, and that the gifts to Anderson were not exempt from that requirement (see Matter of Fabbri, 2 N.Y.2d 236, 240, 159 N.Y.S.2d 184, 140 N.E.2d 269 [1957] ; Matter of Bieley, 91 N.Y.2d 520, 524, 673 N.Y.S.2d 38, 695 N.E.2d 1119 [1998] ; Matter of Carmer, 71 N.Y.2d 781, 785, 530 N.Y.S.2d 88, 525 N.E.2d 734 [1988] ). Surrogate's Court correctly reasoned that the reference to solely "tangible property" in the introductory clause in Article Eighth was the product of "inept drafting," rather than any desire to exclude the two residences or cash from the survivorship requirement. As a result, the bequests lapsed and will go to the respondent charitable institutions as part of the residuary estate.
The Surrogate's Court properly declined to grant discovery or receive extrinsic evidence because the decedent's intent could be gleaned from the four corners of the will ( Matter of King, 198 A.D.2d 115, 603 N.Y.S.2d 827 [1st Dept. 1993] ; Matter of Chernik, 150 A.D.3d 728, 730, 53 N.Y.S.3d 360 [2d Dept. 2017] ).
We have considered petitioner's remaining contentions and find them unavailing.