Proceedings for a determination as to the validity, construction and effect of certain provisions of the decedent's will (SCPA §1420[1]) due to, inter alia, omission of a residuary clause.

The decedent, a resident of the Town of Moriah, Essex County, died on June 26, 2003 survived by three nieces, Karen Drake, Sandy Mandy and Cindy Mandy, and one nephew, William Armstrong (collectively, the "heirs"), all of whom also resided in that town. Her will, executed on May 8, 2003 under the supervision of an attorney, Petitioner William J. Potskowski, her nominated executor, and containing twenty separate paragraphs, was duly admitted to probate on August 5, 2003. The petition for probate, to which no objections were filed, lists each of the heirs as "LEGATEE, RESIDUARY BENEFICIARY 3/4". The estate is valued at $669,047.64.

After directing payment of all debts and funeral expenses, and the sale of her home and [*2]contents with the proceeds being paid to her estate, in the first two paragraphs of the will, the next sixteen ^[FN1] paragraphs consist of separate general dispositions in varying monetary amounts to a number of persons, including the heirs ^[FN2], a church, the local ambulance squad and fire department, and an area society for the prevention of cruelty to animals. The cash dispositions total $88,500.00. The nineteenth paragraph of the will establishes a scholarship to be funded by 25% of the decedent's estate as follows:

"TWENTIETH:I direct that TWENTY-FIVE PERCENT (25%) of my estate is to be set up for a Nursing Scholarship thru Moriah Central School and the recipient is to be determined by my Executor."

Both the executor and the school district filed petitions for construction of the will pursuant to SCPA §1420. The executor seeks a determination construing paragraph Twentieth of the will regarding who is to nominate candidates and determine the scholarship amount, as well as to determine whether the portion of the estate for the scholarship is to be determined before or after the preceding monetary dispositions to the named individuals and organizations. The executor seeks a further determination as to how the balance of the estate is to be distributed due to the lack of a residuary clause, asserting that it should be distributed in intestacy to the heirs. The school district seeks a determination not only that the portion of the estate to fund the scholarship should be calculated prior to the cash dispositions but also that the entire residuary estate should fund the scholarship, and that all funds should be distributed directly to the school district. Moreover, the executor and the heirs challenge the standing of the school district and the Attorney General since the language in paragraph Twentieth of the will does not direct the disposition of any property to the school district.

It is clear that a party is a "person interested" and entitled to bring a proceeding for construction under SCPA §1420(1) as long as the party would benefit financially from a favorable construction of the will and even though it would take nothing under an unfavorable construction (see In re James' Estate 119 NYS2d 259). The Attorney General has a statutory duty to represent "the beneficiary of a disposition for a religious, charitable, educational or benevolent purpose" (EPTL §8-1.1[c][2][ii]; see also Matter of Birch's Estate 50 AD2d 475, 378 NYS2d 792, appeal dismissed 40 NY2d 803, 387 NYS2d 1030, 356 NE2d 482).

Here, construction of the will in favor of the school district that paragraph Twentieth of the will creates a disposition of a portion of the estate to the district for the establishment of a nursing scholarship for the benefit of its students would render the district a legatee, and therefore gives the school district and the Attorney General standing in this proceeding (see In re Rose's Estate 58 Misc 2d 576, 296 NYS2d 656).

On construction of a will, the function of the court is to find and implement the intention of the testatrix as that intention may be found to have been manifested in the language of the will [*3](Matter of Jones' Estate, 38 NY2d 189, 379 NYS2d 55, 341 NE2d 565; In re Watson's Will. 262 NY 284, 186 N.E. 787; In re Bump's Will, 234 NY 60, 136 N.E. 295), "gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed [citations omitted]" (In re Fabbri's Will, 2 NY2d 236, 240, 159 NYS2d 184, 187, 140 NE2d 269, 271). "The duty of the court is not to make a new will or codicil to carry out some supposed but undisclosed purpose, but to ascertain what the testator actually intended by the language employed by him when properly interpreted" (Herzog v. Title Guaranty & Trust Co., 177 NY 86, 92, 69 N.E. 283, 284).

An interpretation of a will which would result in intestacy is to be avoided, if possible (In re Hayes' Will, 263 NY 219, 188 N.E. 716; Meeks v. Meeks, 161 NY 66, 70, 55 N.E. 278). However, this rule of construction is not absolute; the testator's intention is the primary factor and intestacy may result (In re Englis' Will, 2 NY2d 395, 161 NYS2d 39, 141 NE2d 556). Where the language in a will is clear, a court may not evade its meaning "by an endeavor to spell out a different intent on the part of the testator by resorting to the rule . . . that the testator did not intend to die intestate" (Matter of Disney, 190 NY 128, 131-132, 82 N.E. 1093).

The testatrix's omission of a residuary clause, and a sympathetic reading of the will, are not sufficient to permit a finding of a gift by implication (compare, Matter of Bieley, 91 NY2d 520, 526, 673 NYS2d 38, 42, 695 NE2d 1119, 1123; Matter of Kronen, 67 NY2d 587, 505 NYS2d 589, 496 NE2d 678; Matter of Thall's Estate, 18 NY2d 186, 273 NYS2d 33, 219 NE2d 397). There is simply no support at all for the construction sought by the school district and the attorney general that the court adopt a construction awarding the entire residuary estate to the school district for the nursing scholarship. The language of paragraph TWENTIETH of the will, directing that the scholarship is to be funded by twenty-five percent of the net estate, is clear, definite and unambiguous. Adoption of the requested construction would require the court to engage in an impermissible rewriting of the will (In re Gautier's Will, 3 NY2d 502, 510, 169 NYS2d 4, 8, 146 NE2d 771, 774; In re Englis' Will, Supra.; In re Bisconti's Will, 306 NY 442, 119 NE2d 34; Matter of Disney, supra .) and ignore the testatrix's clear intention to devote only twenty-five percent of her estate for the scholarship. The will contains no language indicating any intent on the part of the testatrix to disinherit the heirs or limit their share of her estate, and any claim to the contrary is further belied by the specific monetary dispositions to her nieces and nephew.

The only possible construction of the will is intestacy for the residuary estate (see Matter of Kronen, supra ; In re Imperato's Estate, 44 Misc 2d 639, 254 NYS2d 581, reversed 24 AD2d 598, 262 NYS2d 343, reversed for reasons stated by Surrogate's Court 18 NY2d 825, 275 NYS2d 530, 222 NE2d 394; In re D'Allesandro's Will, 55 Misc 2d 909, 286 NYS2d 914).

The sequence in which dispositions are set out in a will is evidence of the maker's intent that the dispositions be funded and paid in that order (see, Matter of Berger's Estate, 57 AD2d 591, 393 NYS2d 600; In re Skidell's Estate, 49 Misc 2d 147, 266 NYS2d 868; Matter of Rosen, Sur., 156 NYS2d 432; Matter of Haslett's Estate, 190 Misc 496, 74 NYS2d 294). Here, the sixteen monetary dispositions precede the disposition for the scholarship, and follow immediately after the direction for payment of debts and funeral expenses, and the sale of the real estate and its contents. It is thus apparent that the testatrix intended to have her debts, funeral expenses, and the sixteen monetary dispositions funded and paid prior to computing and making the disposition for the scholarship; and therefore the twenty-five percent disposition for the nursing scholarship in paragraph TWENTIETH [*4]of the will is to be so calculated.

The disposition for the scholarship is ambiguous, however, relative to whether the funds are to be distributed to and held by the school district or retained by the executor in trust, whether the disposition is a one-shot or perpetual scholarship, and as to the manner of selection of potential candidates. Construction of the phrase "thru Moriah Central School" is necessary, and a hearing must be held to consider extrinsic evidence "in discerning the testator's true intent" (In re Estate of McCabe, 269 AD2d 727, 703 NYS2d 559.

Decision signed this 5th day of March, 2007 at Elizabethtown, New York.

ENTER

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Richard B. Meyer

Surrogate Judge