In re the Estate of Alexander

Appellate Division of the Supreme Court of New York

In re the Estate of Alexander

87 A.D.2d 994, 449 N.Y.S.2d 812, 1982 N.Y. App. Div. LEXIS 16539

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 12, 1982

StatusPublished

Cited by1 cases

This text of 87 A.D.2d 994 (In re the Estate of Alexander) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of Alexander, 87 A.D.2d 994, 449 N.Y.S.2d 812, 1982 N.Y. App. Div. LEXIS 16539 (N.Y. Ct. App. 1982).

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Decree reversed, with costs to all parties filing briefs, payable out of the estate, and matter remitted to Surrogate’s Court, Monroe County, for entry of a decree in accordance with the following memorandum: Jon H. Alexander executed a will on May 31, 1979 and died on January 11, 1981. He left surviving two daughters, Sheila Williams and Noel Benson, and a son, John H. Alexander. The executor brought this proceeding for construction of the residuary clause of the will and the son appeals the Surrogate’s decree that the residue passed to Sheila Williams and Noel Benson in equal shares. The residuary clause is contained in paragraph “seventh” which provides: “I direct that all the rest, residue, and remainder of my estate, of whatever nature and wherever situated, be divided into equal shares, making one share for each of my daughters, Sheila Williams and Noel Benson, who are living at my death, and each of my deceased daughters who shall have issue then surviving. I direct that the share for my daughter Sheila Williams, include any real property I may own along Harris Road in the Town of Leroy, Genesee County, New York, (being more specifically part of Town Lot 136) provided there are sufficient assets to equalize the share passing to my daughter, Noel Benson. It is my intention that in all events, the shares passing to my daughters are to be equal in value. In respect to the share of any deceased child who shall have issue, I give, devise and bequeath the same in equal shares to such issue. In respect to each of my children living at my death, I give, devise and bequeath one such share to each such child.” In determining the intent of the testator, the [995]*995Surrogate properly examined the entire will (Matter of Fabbri, 2 NY2d 236) and noted that in each of its paragraphs “the testator designated the legatee or legatees by name.” The court concluded that it was the “very clear intent” of the testator “to divide his residuary estate between his two daughters”. We disagree. Testamentary intent is best found in the clear and unambiguous language of the instrument itself (Matter ofBisconti, 306 NY 442,445). Unless it is demonstrated that a different meaning was intended, words are to be given their usual and ordinary meaning (Matter of Syracuse Univ. [Hendrick s], 1 Mise 2d 904, affd 3 AD2d 890, affd 4 NY2d 744). It is to be presumed that each provision of a testamentary instrument has a purpose, and courts will strive, wherever possible, to give effect to every part of a will (Matter of Goldstein, 46 AD2d 449, 452, affd 38 NY2d 876). “When a testator in one part of his will demonstrates his ability to make a certain variety of gift by apt terms, the use of a different mode of expression in another direction raises the inference that he had a diverse disposition in mind” (Matter ofParant, 39 Mise 2d 285, 287; see, also, 64 NY Jur, Wills, § 592). The will under review provides for gifts of real and personal property to named beneficiaries, and the residuary clause specifically describes the shares of testator’s two daughters. The words of gift of the residue, however, are found in the last two sentences of paragraph “seventh” wherein testator alludes to “each of my children” and grants shares “to each such child” or to the issue of “any deceased child”. The language employed in those sentences is clear and unambiguous, and may be read together with other language employed in the residuary clause and with the remainder of the will, without inconsistency, to the conclusion that testator’s son John should share equally in the residuary disposition. Such a construction gives meaning to every provision of the will (see Matter of Goldstein, supra), adheres closely to the rules of intestate distribution (see New York Life Ins. & Trust Co. v Winthrop, 237 NY 93) and is consistent with the favored goal of promoting equality of distribution among children (see Matter of Harden, 177 App Div 831). We thus find that the testator intended that his residuary estate be distributed in equal shares among his three children. All concur, except Denman and Boomer, JJ., who dissent and vote to affirm the decree, in the following memorandum.

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Decree reversed, with costs to all parties filing briefs, payable out of the estate, and matter remitted to Surrogate’s Court, Monroe County, for entry of a decree in accordance with the following memorandum: Jon H. Alexander executed a will on May 31, 1979 and died on January 11, 1981. He left surviving two daughters, Sheila Williams and Noel Benson, and a son, John H. Alexander. The executor brought this proceeding for construction of the residuary clause of the will and the son appeals the Surrogate’s decree that the residue passed to Sheila Williams and Noel Benson in equal shares. The residuary clause is contained in paragraph “seventh” which provides: “I direct that all the rest, residue, and remainder of my estate, of whatever nature and wherever situated, be divided into equal shares, making one share for each of my daughters, Sheila Williams and Noel Benson, who are living at my death, and each of my deceased daughters who shall have issue then surviving. I direct that the share for my daughter Sheila Williams, include any real property I may own along Harris Road in the Town of Leroy, Genesee County, New York, (being more specifically part of Town Lot 136) provided there are sufficient assets to equalize the share passing to my daughter, Noel Benson. It is my intention that in all events, the shares passing to my daughters are to be equal in value. In respect to the share of any deceased child who shall have issue, I give, devise and bequeath the same in equal shares to such issue. In respect to each of my children living at my death, I give, devise and bequeath one such share to each such child.” In determining the intent of the testator, the [995]*995Surrogate properly examined the entire will (Matter of Fabbri, 2 NY2d 236) and noted that in each of its paragraphs “the testator designated the legatee or legatees by name.” The court concluded that it was the “very clear intent” of the testator “to divide his residuary estate between his two daughters”. We disagree. Testamentary intent is best found in the clear and unambiguous language of the instrument itself (Matter ofBisconti, 306 NY 442,445). Unless it is demonstrated that a different meaning was intended, words are to be given their usual and ordinary meaning (Matter of Syracuse Univ. [Hendrick s], 1 Mise 2d 904, affd 3 AD2d 890, affd 4 NY2d 744). It is to be presumed that each provision of a testamentary instrument has a purpose, and courts will strive, wherever possible, to give effect to every part of a will (Matter of Goldstein, 46 AD2d 449, 452, affd 38 NY2d 876). “When a testator in one part of his will demonstrates his ability to make a certain variety of gift by apt terms, the use of a different mode of expression in another direction raises the inference that he had a diverse disposition in mind” (Matter ofParant, 39 Mise 2d 285, 287; see, also, 64 NY Jur, Wills, § 592). The will under review provides for gifts of real and personal property to named beneficiaries, and the residuary clause specifically describes the shares of testator’s two daughters. The words of gift of the residue, however, are found in the last two sentences of paragraph “seventh” wherein testator alludes to “each of my children” and grants shares “to each such child” or to the issue of “any deceased child”. The language employed in those sentences is clear and unambiguous, and may be read together with other language employed in the residuary clause and with the remainder of the will, without inconsistency, to the conclusion that testator’s son John should share equally in the residuary disposition. Such a construction gives meaning to every provision of the will (see Matter of Goldstein, supra), adheres closely to the rules of intestate distribution (see New York Life Ins. & Trust Co. v Winthrop, 237 NY 93) and is consistent with the favored goal of promoting equality of distribution among children (see Matter of Harden, 177 App Div 831). We thus find that the testator intended that his residuary estate be distributed in equal shares among his three children. All concur, except Denman and Boomer, JJ., who dissent and vote to affirm the decree, in the following memorandum.

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87 A.D.2d 994, 449 N.Y.S.2d 812, 1982 N.Y. App. Div. LEXIS 16539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-alexander-nyappdiv-1982.

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