In re the Estate of Walker

476 N.E.2d 298, 64 N.Y.2d 354, 486 N.Y.S.2d 899, 1985 N.Y. LEXIS 17289
New York Court of Appeals·Decided February 14, 1985·Published·Cited by 57 cases

Opinions

OPINION OF THE COURT

Simons, J.

Petitioners, Mary Ann Walker Narita and James J. Walker, II, are the adopted children of former Mayor James J. “Jimmy” Walker of New York City and beneficiaries of his estate. They instituted this will construction proceeding to obtain two adoption decrees in respondents’ possession which they claim were bequeathed to them by their father and which identify their natural mother or mothers.

The issue presented is whether the testator intended to bequeath the adoption decrees to petitioners by his will and, if he did, whether enforcement of such a bequest is consistent with the public policy of this State. The Surrogate denied the application and dismissed the petition. She held the decrees were not personalty transferrable by the will but that enforcement would be denied in any event because disclosure of their contents would violate the public policy of New York and Illinois (the State of the adoptions). The Appellate Division affirmed for the reasons stated by the Surrogate with one Justice dissenting (see, 99 AD2d 448). We now affirm.*

The testator, James J. Walker, and his wife, Violet Walker, adopted petitioner, Mary Ann Walker Narita, in Cook County, [357] Illinois, on or about March 28, 1936. In July of the following year, they adopted James J. Walker, II in the same jurisdiction. After the adoptions, Walker obtained copies of the decrees and, upon his return to New York, entrusted them to his lawyer, Sidney Harris. Walker died in New York City on November 18, 1946. He left a last will and testament dated October 8, 1945 which was admitted to probate in New York County on December 12, 1946. Walker’s will appointed Harris as executor of his estate and guardian of his children who were minors at the time of his death. Upon Harris’ death, Charles L. Sylvester, his partner, replaced him. Both Harris and Sylvester have since died and respondent law firm is the successor to the law firm of Sylvester and Harris. Respondent Richard H. Bernstein is its trusts and estates partner.

Petitioners contend that upon reaching their majority, they were entitled to possession of the adoption decrees. To support this contention, they rely on the following paragraphs of decedent’s will:

“third. I give, devise and bequeath to my beloved children, james j. walker and mary ann walker, any and all my personal property, including furnishings, articles of personal attire and memorabilia of every kind, nature and description.”

“sixth. All the rest, residue and remainder of my properties I hereby give, devise and bequeath to my children, james j. walker and mary ann walker, or the survivors of them, share and share alike.”

Respondents’ principal contention is that the testator did not bequeath the property to petitioners, and that even if he did the transfer with the resulting disclosure of the identity of petitioners’ natural mother or mothers would be contrary to public policy of New York as expressed in Domestic Relations Law §114.

Analysis starts with the general rule that the law permits a person possessing testamentary capacity to dispose of property to any person in any manner and for any object or purpose so long as such disposition is not illegal or against public policy (Matter of Watson, 262 NY 284, 299; Hollis v Drew Theol. Seminary, 95 NY 166, 172; Matter of Hughes, 225 App Div 29, 31, affd 251 NY 529; 94 CJS, Wills, § 93). The court’s job in overseeing the administration of a testator’s estate is to implement the testamentary plan the testator intended, determining intent from the words used in the will (Matter of Cord, 58 NY2d 539, 544; Matter of Jones, 38 NY2d 189,193; Matter of Buechner, [358] 226 NY 440, 444) and construing them according to their everyday and ordinary meaning (Matter of Wilhelm, 60 AD2d 32, 36, affd 46 NY2d 947; Matter of Pelton, 190 Misc 624, 626). Once the testator’s intent is determined, it must control the disposition of the property unless it is contrary to some public policy or established law.

Construing testator’s will according to these rules, we determine that he intended to bequeath the adoption decrees to petitioners. Testator did not say so explicitly, but the gift is encompassed within two paragraphs of the will, paragraph third which bequeaths to petitioners “any and all my personal property” and paragraph sixth, the residuary clause which names petitioners as the sole objects of his bounty and conveys all the remainder of testator’s property to them. We construe the phrase “all my personal property” in the third paragraph broadly as indicative of an intent to dispose of all tangible personalty, known or unknown (see, Matter of Baker, 164 Misc 622, 624-625). That construction is consistent with EPTL 3-5.1 which defines personal property as any property other than reed property, including tangible and intangible things and would include documents such as adoption decrees (see also, 4 Page, Law of Wills § 33.24, p 334). This result is not altered by the attorney’s affidavit contained in the record in which he alleges that Walker entrusted the decrees to Harris during his lifetime, an act which he contends permits an inference that they were intended to be confidential. The will provisions are unambiguous and the affidavit is therefore inadmissible (see, Matter of Cord, 58 NY2d 539, 544, supra; Matter of Wells, 113 NY 396, 401). Equally unavailing is respondents’ contention that the doctrine of ejusdem generis should be applied to paragraph third to limit the general bequest of “all my personal property” to property similar in kind to the specifically enumerated items which follow — furnishings, personal attire and memorabilia. The words of a general bequest followed by enumerated articles are not limited to things similar to the specific items listed (see, Matter of Reynolds, 124 NY 388, 397). Though paragraph third is sufficient to sustain petitioners’ claims, we also construe the broad language of the residuary clause as bequeathing the decrees to them in keeping with the presumption that a testator intends to dispose of his entire estate by will (see, Matter of Jones, 38 NY2d 189, supra; Matter ofDammann, 12 NY2d 500).

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In re the Estate of Walker, 476 N.E.2d 298, 64 N.Y.2d 354, 486 N.Y.S.2d 899, 1985 N.Y. LEXIS 17289 (N.Y. 1985).

476 N.E.2d 298 (In re the Estate of Walker) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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