Opinion
June 19, 1967
Appeal from a decree of the Surrogate's Court of Franklin County which determined the validity, construction and effect of the disposition of property contained in paragraphs "Second" and "Third" of decedent's will, in pertinent part providing: "SECOND: All the rest, residue and remainder of my property * * * I give, devise and bequeath to my beloved husband, FRANK W. ELDRED, life use, and upon his death, I give and bequeath the sum of $5,000.00 to my neice, EVELYN FOUNTAIN ROSBROOK * * * and the balance of my said residuary estate I instruct my executor hereinafter named to invest the same in securities * * * for the purpose of using the income and principal therefrom to erect, build or remodel or otherwise obtain a library in the Village of Tupper Lake, New York * * * which library, according to this bequest and devise, I would preferably have on the present so-called `library lot'. "THIRD: In the event that at the time of my death such a library has been built, erected or building remodeled, or upon the death of my husband, if I predecease him, then, and in that event, I give, devise and bequeath my residuary estate to my niece, Evelyn Fountain Rosbrook, to be her own forever." A public building, which had been constructed as an elementary school but had not been used for school purposes for many years, was, at the time of the execution of the will and for somes years before, occupied, in part, by the only local public library. Testatrix had at one time served as its librarian. The will was executed on August 20, 1959. In October, 1961, the Board of Education caused plans to be prepared for what was termed the "renovation" of the building, or part of it, for the continued purposes of a library. A contract was let and work thereunder was commenced on November 17, 1961 and completed on January 22, 1962. Testatrix died meanwhile, on December 2, 1961. Frank W. Eldred, her husband and legatee, died January 17, 1966. The issues are simply (1) whether the construction work performed caused a building to be "remodeled" as a library, within the intent of the will; and (2) if so, whether such remodeling, when commenced before, and completed after testatrix' death, but fully completed prior to the death of Frank W. Eldred, vitiated the gift for library purposes and rendered operative the provision whereby the entire residuary estate would pass to Evelyn Fountain Rosbrook. We conclude that each question must be answered in the affirmative. In reaching the same result, the Surrogate's Court found the critical factor to be the time of the vesting of the gift of the residuary estate and although we consider that, under familiar principles, the gift vested, not at the time of the husband's death, but upon the death of the testatrix, subject to being divested upon the occurrence of the condition subsequently expressed in paragraph "THIRD" (see, e.g., Matter of Larkin, 9 N.Y.2d 88; Matter of Krooss, 302 N.Y. 424), in this case the difference was unimportant and the error harmless. As the opinion rendered in the Surrogate's Court indicates, the clause in question must be construed to provide that, "In the event that such a library has been built, erected or building remodeled, at the time of my death or upon [before] the death of my husband, if I predecease him, then, and in that event", I give my residuary estate to my niece. Absent the transposition thus suggested, certain provisions of the will are meaningless and others redundant and the reading of the will in its entirety "makes it clear and certain that the meaning and expressed intention of the testatrix necessitate the transposition." ( Matter of Tamargo, 220 N.Y. 225, 231; Matter of Gallien, 247 N.Y. 195; Matter of Graham, 44 Misc.2d 75.) The phrase "upon the death of my husband" seems meaningless unless it be read to follow the phrase "at the time of my death". It seems clear, from the use and position of the word "or" and from the context otherwise, that the word "event", in each of the two instances used, refers to the same "event", that is, the erection or remodeling, whether in testatrix' lifetime or at some other time, the latter being in the period between her death and that of her surviving husband. Under any other construction, the words "then and in that event" are completely redundant. Her wish being that there should in the future exist a new or remodeled library, whether through her gift or by some other means or provision, and it being clear that she wished to avoid a duplicative or otherwise unnecessary expenditure, certainly she did not wish to inhibit a duplication of that nature in her lifetime but to tolerate it after her death and in or after the lifetime of her husband, for whose benefit she had, in another clause, provided for invasion of the principal of the residuary estate, in case of necessity. The construction of the will urged by appellant, conditioning the gift to Mrs. Rosbrook upon the completion of a construction or remodeling prior to decedent's death, would contravene testatrix' intention in each of these respects. Turning now to the question whether the construction work performed upon the building caused it to be "remodeled" within the intent of the will, we find no difficulty in concluding that it did. To remodel is to model anew, to reconstruct. (Webster's Third New International Dictionary.) A standard reference work defines the term as "to model, shape, form, fashion, afresh, or to recast; to model anew; to reconstruct, to reform, reshape, reconstruct, to make over in a somewhat different way." (Black's Law Dictionary [4th ed.], p. 1459, citing Board of Commissioners of Guadalupe County v. State, 43 N.M. 409.) The basic test is the usual and ordinary meaning of the term and by that standard the voluminous evidence of the substantial and in certain respects massive and structural changes in the disused school building and the radical alterations and improvements in its arrangement, design, function aand facilities seem to us to demonstrate beyond reasonable dispute that the building was reconstructed or remodeled to constitute a library. Decree affirmed, with costs to respondent payable from the estate. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.