In re the Estate of Gardella

208 A.D.2d 836, 618 N.Y.S.2d 561

Opinion

In a proceeding for the construction of the decedent’s will, the petitioner appeals from an order of the Surrogate’s Court, Putnam County (Braatz, S.), dated March 16, 1993, which construed the will as creating a life estate in the decedent’s home at 3 Cornnall Road, Patterson, New York for the benefit of the respondent Viola Petersons.

Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Surrogate’s Court, Putnam County, for a hearing in accordance herewith.

An examination of the contested paragraph of the decedent’s will raises questions of fact as to whether or not the decedent intended to create a right of occupancy or a life estate for the benefit of the respondent. Accordingly, an evidentiary proceeding is warranted (cf., Matter of Lezotte, 108 AD2d 1052; Matter of O’Neil, 8 AD2d 631). Pizzuto, J. P., Santucci, Hart and Goldstein, JJ., concur.