In re the Estate of Knapp

119 A.D.2d 676, 500 N.Y.S.2d 804, 1986 N.Y. App. Div. LEXIS 55594

Opinion

— In a proceeding to determine the validity, construction and effect of a testamentary disposition, the petitioner appeals from a decree of the Surrogate’s Court, Dutchess County (Benson, S.), dated September 21, 1984, which, inter alia, determined that the testamentary provisions contained in article "sixth” of the will of Amalie W. Knapp, deceased, granted the nominated executor the uncontrolled power to sell the personal residence of the testatrix, in his discretion.

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 NY2d 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.