Opinion
94043/2005.
Decided November 16, 2006.
ANDREW S. MULGREW, ESQ., MULGREW SASSONE, P.C., Attorneys for Petitioner, THOMAS CASTAGNOZZI, New City, New York.
JOSEPH L. GENZANO, ESQ., ELHILOW MAIOCCHI, LLP, Attorneys for Respondents, ROBERT MENDOZA and BETH, MENDOZA as Guardians of EMANUEL MENDOZA and ROBERT MENDOZA, infants and JOHN PATRICK PLANK and LISA PLANK, as Guardians of DANIELLE PLANK, MATTHEW PLANK and SEAN PLANK, infants, Hawthorne, New York.
The decedent died testate on September 18, 2004. Her will, dated April 8, 2004, was admitted to probate on January 28, 2005.
The will leaves the entire estate to the trustee of the Donna L. DeMelia Living Trust Agreement ("Trust") to be managed, administered and distributed under its terms. The trust was created by the decedent on the same day she executed her will.
Thomas Castagnozzi is the successor trustee under the trust and substitute executor under the will. He has petitioned this court pursuant to SCPA § 1420(1) for a decree construing Article V, Section A of the trust. It provides as follows:
"A. Distribution to Named Beneficiaries
1.Upon the death of the Trustor, the Trustee is directed to distribute the entire Trust Estate to ANGELO E. CASTAGNOZZI. Such distribution shall be outright, and free of trust.
2.In the event that the foregoing named beneficiary shall fail to survive distribution, then the share that would have been distributed to such beneficiary shall be distributed as follows:
a. Trustor's residence located at 28 Pine Ridge Road, Poughkeepsie, New York shall be sold and the proceeds distributed in equal shares to ROBERT MENDOZA, EMANUEL MENDOZA, SEAN PLANK, MATTHEW PLANK and DANIELLE PLANK.
b. All the rest, residue and remainder of The Trust estate shall be distributed one sixth (1/6) share each to THOMAS CASTAGNOZZI, ROBERT MENDOZA, EMANUEL MENDOZA, SEAN PLANK, MATTHEW PLANK and DANIELLE PLANK."
The original trustee was the decedent. Angelo E. Castagnozzi was appointed to serve as successor trustee following her death, as well as primary executor under her will. Angelo E. Castagnozzi died a few weeks after the death of Donna L. DeMelia, on or about October 13, 2004. Petitioner alleges that Angelo E. Castagnozzi died prior to the filing of a petition to probate the will. The record indicates that no distribution of the trust estate to Angelo E. Castagnozzi or his estate has occurred.
The respondents have filed a verified answer to the petition. They urge that no construction is required, as the language in the trust instrument is unambiguous. The court concurs.
The dominant rule of construction of a will is to carry out the intent of the testator. ( Matter of Guide, 302 AD2d 387 [2nd Dept. 2003].) The intent is to be culled from "a sympathetic reading of the will as an entirety and in view of all of the facts and circumstances under which the provisions of the will were framed." ( Matter of Larkin, 9 NY2d 88, 91.) In the event the will illustrates a dominate plan of distribution, the various provisions must be interpreted in light of that purpose. ( Matter of Carmer, 71 NY2d 781, at 785-786.) Where, as here, the testator's intent can be ascertained from a reading of the four corners of the document, resort to extrinsic evidence is inappropriate. ( Matter of Cord, 58 NY2d 539, 544.)
Here, the operative instrument is the trust, which is part of the testamentary estate. The language in Article V, Section A(2) is unambiguous. Two contingencies are set forth. Angelo E. Castagnozzi was not only required to survive Donna L. DeMelia, he was also required to survive distribution. He did not. Therefore, distribution of the trust assets follow the protocol outlined in Article V, Section A(2) to those individuals listed in subsections "a" and "b".
The court declines to grant that portion of the respondents' answer at point 5, which seeks an award of counsel fees.
Counsel for petitioner is directed to submit a decree consistent with the foregoing with notice of settlement within ten (10) days of service of a copy of this decision.
On this application, the Court considered the verified petition with two (2) exhibits and verified answer with supporting affirmation.
The foregoing constitutes the decision of the Court.