Opinion
April 14, 1986
Appeal from the Surrogate's Court, Dutchess County (Benson, S.).
Decree modified, on the facts, by deleting the word "uncontrolled" from the second decretal paragraph. As so modified, decree affirmed, with costs payable by the appellant.
The will clearly and unambiguously grants the executor or the trustee the power to sell the testatrix's real property if he should deem it absolutely necessary. Thus, the decision to sell or retain the subject real property is committed to the sound discretion of the executor or the trustee. Because the intent of the testatrix can be gleaned from the four corners of the will, the Surrogate's exclusion of extrinsic evidence at the will construction hearing was proper (see, Matter of Cord, 58 N.Y.2d 539, 544). However, we believe that the testatrix did not intend that the power to sell the real property was "uncontrolled", as the Surrogate held. Thompson, J.P., Bracken, Weinstein and Kunzeman, JJ., concur.