Opinion
June 11, 1998
Appeal from the Surrogate's Court, New York County (Eve Preminger, S.).
There is nothing in the subject testamentary agreement between the decedent and her husband (who predeceased her), or in their 1974 wills, as modified by codicils executed in 1980, from which it can be fairly inferred that the decedent relinquished her right to dispose of assets not specifically referenced in either the agreement or the wills during her lifetime. Even an agreement that the survivor's entire estate will be left to certain beneficiaries will not necessarily prevent the survivor from making a lifetime gift, since such a gift does not necessarily defeat the purpose of the agreement (Rastetter v. Hoenninger, 214 N.Y. 66, 73), and, in the absence of express or otherwise substantial textual provisions from which the inference of a dispositional limitation such as that proposed by petitioner could have been unequivocally drawn, the Surrogate properly declined to expand the scope of the agreements here at issue beyond their specific, facially evident intendment (see, Blackmon v. Estate of Battcock, 78 N.Y.2d 735, 740).
We have considered petitioner's remaining arguments and find them to be without merit.
Concur — Milonas, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.