Opinion
No. 2011–1039/C.
03-17-2015
In the Matter of the Construction Proceeding in the ESTATE OF Dorothy GRUTZNER, Deceased.
Edward M. Schaffer, Esq., Carmel, NY, Attorney for petitioner. Steven M. Manzella, Esq., White Plains, NY, Attorney for Paul Grutzner.
Edward M. Schaffer, Esq., Carmel, NY, Attorney for petitioner.
Steven M. Manzella, Esq., White Plains, NY, Attorney for Paul Grutzner.
Opinion
DAVID F. EVERETT, J.
In this contested miscellaneous proceeding, the petitioner Erik Grutzner (“Erik”), the administrator CTA in the estate of Dorothy Grutzner (the “decedent”), requests that the court issue a decree construing the decedent's last will and testament in order that the estate can be distributed. Erik has taken a position on the proposed construction, and that construction is opposed by his father, Paul Grutzner (“Paul”). The application is decided as set forth below.
The decedent was born on November 13, 1910. She married Victor Grutzner (“Victor”), and they had two children, Betty Ann Grutzner (“Betty Ann”) and Paul. Paul has two children, Erik and Tanja Malone (“Tanja”). In or about 1953, the decedent and Victor divorced.
On January 20, 1993, the decedent executed an instrument in which she gave a life estate to Betty Ann in her home in Ardsley, N.Y. (the “house”) , and on either of the death of Betty Ann or on her failure to keep up the house, the house would “pass to a Trust which is to be hereinafter created by [her] and shall pass to said Trust under the terms and conditions of that instrument” (the “Trust”). In accordance with Article THIRD (the residuary clause), the decedent gave her personalty and any other realty she might possess to Betty Ann, and if Betty Ann did not survive the decedent, these residuary assets would pass to the Trust. Article FOURTH read “I leave to my son, Paul, my love and affection but nothing more knowing that he is financially able to care for himself and his family”. The instrument also contained an in terrorem clause. Finally, the instrument nominated Stephen M. Morrison (“Stephen”) as executor and Betty Ann as successor.
Paul alleges that, in crafting her estate plan, the decedent was motivated by the fact that, at the time the instrument was executed, Betty Ann was not financially independent and maintained a ceramic business in the basement of the decedent's home.
While not perfectly clear, it appears from the record, that Stephen was the decedent's attorney and drafted the instrument.
Betty Ann deceased on May 1, 2002, without issue. Almost nine years later, on January 2, 2011, the decedent died.
At some point, searches of the decedent's home and safe deposit box were conducted. A trust was never located. Erik or his counsel questioned Stephen, and he stated that he did not draft a trust for the decedent.
On September 28, 2011, Stephen renounced his appointment as fiduciary, and on October 13, 2011, Erik file a petition for letters of administration CTA. Tanja waived and consented to the relief requested in the petition, and Paul was cited. In February 2013, Paul and Erik entered into a stipulation which provided that Paul would consent to the issuance of letters of administration CTA to Erik, and no assets of the decedent's estate would be distributed until the instrument was construed by the court. On April 10, 2013, letters of administration CTA issued to Erik.
Thereafter, Erik filed this construction proceeding which alleges that, in the event of Betty Ann's predecease, the instrument left all of the decedent's assets to a trust which has never been found and is believed to never have been created and which seeks a decree that the instrument is viable to the extent that Paul is disqualified from inheriting. Erik further verifies that on grant of this relief, the decedent's estate will pass to him and Tanja, as her sole distributees. It is Erik's position that this proceeding for construction actually is unncessary because there is no ambiguity in the instrument but that the quid pro quo to Paul not filing objections to his receipt of letters, was Erik's filing of this proceeding.
In Matter of Bump (234 N.Y. 60, 63, 136 N.E. 295, remittur denied, 234 N.Y. 625 [1922] ), the Court of Appeals wrote:
In the construction of a will we seek the intent of the testator as exhibited by words he has selected. Canons of construction may aid us. Based as they are upon general considerations; upon guesses as to what the average man would intend by this expression or by that, we rest upon them in the absence of more certain indications. Slight variations of phrase, however, or differences in arrangement may lead us to opposite results.
Applying the rule of law, we know that a testator's intent is gleaned not by focusing on any one word or provision but from a sympathetic reading of the entire instrument (see Matter of Cord, 58 N.Y.2d 539, 462 N.Y.S.2d 622, 449 N.E.2d 402, reconsid denied, 60 N.Y.2d 586 [1983] ; Matter of Fabbri, 2 N.Y.2d 236, 159 N.Y.S.2d 184, 140 N.E.2d 269, rehearing denied, 2 N.Y.2d 979 [1957), giving each word its ordinary meaning (see Matter of Gustafson, 74 N.Y.2d 448 [1989] ). If a will reveals a dominant purpose or plan, the individual parts must be interpreted in accordance with that plan, and the actual purpose of the testator be given effect as far as possible (see Matter of Hobart, 7 Misc.3d 447, 794 N.Y.S.2d 783 [Sur Ct Westchester Co 2004] ). The surmise of the drafter or any other interested person is not relevant (see Matter of Cord ).
To begin, the court reviews the will to ascertain whether an ambiguity exists (see Matter of Ragone, 58 N.Y.2d 864 [1983] ). If the court finds such an ambiguity, it may resort to evidence outside of the language of the instrument (see Matter of Ragone ). Here, the court has reviewed the language of the will and holds that it is unambiguous.
The issue here is not one of construction but one of effectiveness of the dispositions under the instrument. EPTL 3–3.7(a) provides that
A testatrix may by will dispose of ... all or any part of ... her estate to a trustee of a trust, the terms of which are evidenced by a written instrument executed by the ... testatrix ... provided that such trust instrument is executed in the manner provided for in 7–1.17, prior to or contemporaneously with the execution of the will, and such trust instrument is identified in such will.
(see also Matter of Dickstein, 146 Misc.2d 164, 549 N.Y.S.2d 595 [Sur Ct Westchester Co 1989] ).
EPTL 3–3.7 is the statutory exception to the general rule in New York that there shall be no incorporation by reference in a will (see Matter of D'Elia; Matter of Klosinski, NYLJ, July 15, 2002 [Sur Ct Kings Co] ).
Here, since there is no Trust, the bequest from the residuary to the Trust fails (see Matter of Freeman, NYLJ, Feb. 26, 1997, at p. 30, 549 N.Y.S.2d 595, col 6), and because there is no alternate distribution for these assets, they pass by intestacy (see Matter of D'Elia, 40 Misc.3d 355, 964 N.Y.S.2d 877 [Sur Ct Nassau Co 2013] ; Matter of Pozarny, 177 Misc.2d 752, 677 N.Y.S.2d 714 [Sur Ct Erie Co 1998] ) .
Furthermore, if the decedent's estate plan had unfolded in accordance with the plain language of the instrument stating that the trust was to be created in the future, the residuary similarly would have failed (see EPTL 3–3.7 ).
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As noted, (and there is no dispute), these assets pass by intestacy. Paul was the decedent's sole distributee at the time of her death and would take. However, as set forth above, Article FOURTH of the instrument disinherited Paul. EPTL 1–2.19 provides that a will can direct how property shall not be disposed of, and such negative disposition not only bars its subjects from inheriting under the will but also from sharing in any disposition that lapses into intestacy (Matter of Flink, NYLJ, Jan. 28, 2002 [Sur Ct N.Y. Co]; Matter of Lippner, 104 Misc.2d 819, 429 N.Y.S.2d 839 [Sur Ct Kings Co 1980] ; Matter of Beu, 70 Misc.2d 396, 333 N.Y.S.2d 858 [Sur Ct Rockland Co 1972], affd, 44 A.D.2d 774, 354 N.Y.S.2d 600 [2d Dept 1974] ).
Paul's arguments that the decedent's main objective was to benefit Betty Ann during Betty Ann's life is not dispositive, and his argument that the decedent “could not have intended to disinherit [him]” is belied by the plain language of the instrument. The Article FOURTH language is thoughtful and need not display animosity to be effective. A decedent's intentions are ascertained as of the date the will was executed, not a subsequent date, and a court cannot change the will to carry out what it assumes the testator would have wanted had she envisioned the state of events at her death (see Matter of Flink ). The cases cited by Paul are not relevant here (see Matter of Cairo, 35 A.D.2d 76, 312 N.Y.S.2d 925 [2d Dept 1970], affd, 29 N.Y.2d 527 [1971] [construing EPTL 5–3.3, repealed statutory provision concerning charitable bequests, to find that grandson, specifically disinherited, had no standing to contest instrument hereunder]; Matter of Norcross, 67 Misc.2d 932, 325 N.Y.S.2d 477 [Sur Ct N.Y. Co 1971], affd, 39 A.D.2d 874 [1st Dept 1972] [similarly construing EPTL 5–3.3, and in accordance therewith, permitting daughter to forge will contest; daughter not disinherited based on alternate provisions of the instrument] ).
In this instance, while it certainly appears that the decedent had not contemplated that Betty Ann would predecease her, she had considerable time between the dates of Betty Ann's death to make changes to her testamentary plan, if it had not, in fact, reflected her wishes. Furthermore, despite Paul's contention that a “diligent search was [not] conducted to determine the whereabouts of any Living Trust which the decedent may have entered into”, if Paul was not satisfied with the search that was made, he could have availed himself of various proceedings to attempt to locate it.
Accordingly, the petition for construction is denied. Based on the plain language of the instrument, upon the residuary's lapse into intestacy, it was as if Paul predeceased the decedent, and therefore, Erik and Tanja, as Paul's distributees take the property in equal shares (see Matter of Beu; cf Matter of Cady, 92 Misc.2d 298, 400 N.Y.S.2d 999 [Sur Ct Onondaga Co 1977] [negative disposition specifically included children of issue] ).
Settle decree.