In the context of captioned proceeding for authorization to sell real property, petitioner has moved for summary judgment pursuant to CPLR 3212. Respondents oppose the instant application on several grounds. For the reasons discussed below, the court finds that respondents are entitled to judgment pursuant to CPLR 3212(b).

Decedent died on August 10, 2005. He was survived by three children. His will dated February 22, 2005 was admitted to probate on November 16, 2005. The underlying proceeding was commenced by petitioner, Claudia Ortmann, a beneficiary of a life estate in real property located at 882 Springs Fireplace Road, East Hampton, New York. The remainder interest in the property is vested in respondents, decedent's three daughters.

Pursuant to Article Third of decedent's will, petitioner is entitled to the use and benefit of the real property, free of rent, for as long as she continues to live or until she remarries, whichever occurs first, conditioned upon her paying all taxes, charges, assessments and [*2]insurance, and maintaining the property in good order and condition.

Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law (see Andre v. Pomeroy, 35 NY2d 361). The court's burden is not to resolve issues of fact, but merely to determine if such issues exist (see Dyckman v. Barrett, 187 AD2d 533). It is a drastic remedy that will only be awarded where there is no triable issue of fact (see Barclay v. Denckla, 182 AD2d 658). The court, therefore, must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of her/his day in court (see Russell v. A. Barton Hepburn Hospital, 154 AD2d 796). Upon searching the record, the court may grant summary judgment in favor of the nonmoving party on an issue presently before it (see Dunham, v. Hilco Construction Co., 89 NY2d 425; CPLR 3212[b]).

The record before the court consists of the pleadings; to wit, the petition and answer and supporting documents, the instant motion and supporting papers, and the transcripts of several individuals.

The instant dispute concerns the disposition of the subject real property devised pursuant to decedent's will. Petitioner seeks, among other things, authorization to market and sell the real property to a third party purchaser and distribute the proceeds to herself and respondents pursuant to their proportionate interests as determined pursuant to RPAPL §403. Respondents seek to prevent same and argue, for the first time in their opposition papers, that the underlying proceeding commenced by petitioner violates the in terrorem clause of decedent's will.

The essential facts are not in dispute and can be reduced to one simple issue: whether this life tenant can force the sale of real property over the objection of those with a remainder interest. There is no question that petitioner can transfer her possessory interest in the real property and that such transfer would be subject to the conditions and restrictions imposed by decedent's will. There is, however, a distinction between alienability and marketability.

Petitioner asserts that she is entitled to the requested relief pursuant to SCPA 1901, 1902(7), 1904(1) and 1918, as well as RPAPL §§1602 and 1604.

SCPA 1904(1) and RPAPL §1602 address the issue of standing to commence the underlying proceeding, which is not disputed by the parties.

Pursuant to SCPA 1901 the court may authorize the disposition of decedent's real [*3]property for the purposes enumerated in SCPA 1902, including any purpose the court deems necessary (SCPA 1902[7]). Pursuant to SCPA 1918, the court may allocate the proceeds from such disposition proportionately among the interested parties (SCPA 1918[2]).

Alternatively, RPAPL §1602 provides, in pertinent part that the owner of a possessory or future interest may apply for an order directing that real property be sold. Pursuant to RPAPL §1604, the court in its discretion may grant the requested relief, if same is expedient, even in contravention of the creating instrument. In Matter of Sauer, 194 Misc 2d 634, 638, "expediency" is defined as a suitable, practicable and efficient means to an end under the circumstances presented.

In determining this issue, the court must not limit its analysis to the strict legal relationship between the parties, namely possessory interest and future interest. Rather, it must view the relationship within the context of the intent of the testator; otherwise, the court's subject matter jurisdiction to entertain this proceeding would be in question, since it would involve a dispute solely among living parties without connection to this estate.

Generally, testamentary intent is to be gleaned from within the four corners of the instrument, without resort to extrinsic evidence (see Matter of Cord, 58 NY2d 539). In this instance, there is no express power of sale afforded the life tenant in the governing instrument, so the court must determine if the words employed by decedent contemplate such a construction.

Petitioner admits that she is unable to maintain the carrying charges associated with her life estate. Although the record is unclear as to what, if any, efforts have been made to rent the property to defray costs, petitioner believes that it is in her best interest to sell it.

In support of her position, she asserts that decedent intended to provide her with a place to live during her lifetime, without saddling her with "a lifetime of financial liability." She suggests that this conclusion is supported by decedent's express direction in his will that her interest be "free of rent." She further asserts that the yearly carrying charges are in excess of $47,000 annually, which exceeds her yearly income.

As for expediency, petitioner asserts that the sale of the realty, which may have a value in excess of $2.5 million dollars, and distribution of the proceeds in proportion to each parties' respective interest would be beneficial to all concerned. The improved real property is currently unoccupied; thus, none of the parties would be forced to relocate. Respondents, she continues, would be able to invest their respective portions of the proceeds thereby yielding a stream of income which could supplement their earnings almost immediately, instead of having to wait until their interest becomes possessory, which, based upon the age of petitioner could be more than thirty years, as petitioner is in her middle fifties.

In opposition, respondents assert that they have maintained the property, including paying the carrying charges and interest on the mortgage note, which petitioner is obligated to pay under [*4]the terms of decedent's will. They assert further that this property, although a separate parcel, is part of a compound consisting of a common driveway and several adjacent/adjoining lots, which has been occupied by members of the Talmage family for more than a hundred years. Additionally, decedent went to great lengths to retain this property for the benefit of his family. In fact, the mortgage currently encumbering the property was necessary to avoid a sale during his divorce from respondents' mother.

Unfortunately for petitioner, freedom from the payment of rent does not mean freedom from all financial burdens associate with her life estate. As this court determined in a previous proceeding concerning this property, petitioner is responsible for all carrying charges associated with this realty, including interest accruing on the mortgage note, a burden that decedent could have alleviated in his will (see Matter of Talmage, NYLJ, Oct. 16, 2006, 47, [col. 1]). These costs are an expense incurred by petitioner regardless of her choice to reside elsewhere and were clearly contemplated by decedent.

It appears that decedent planned to rent this property to generate a stream of income and not to sell it. For several years prior to the time of his death, decedent was residing with petitioner in her home. Certainly, decedent could have sold this property and invested the proceeds. He did not. Without addressing issues relating to CPLR 4519, the so-called "Deadman's Statute", petitioner claims that she assisted decedent in readying the premises for sale by painting, gardening and landscaping, and purchasing linens and cookware. On the contrary, decedent's intent to use the property to generate supplemental income is certainly consistent with then language of his will, particularly in light of the fact that petitioner's life estate terminates upon her remarriage.

Where, as here, the words used in a will are clear and definite, this court is powerless to change them (see Matter of Watson, 262 NY 284). The intention of the testator must be given effect, unless same would be in violation of law or against public policy (see Matter of Fabbri, 2 NY2d 236). It would be wholly inconsistent upon a sympathetic reading of decedent's will to construe the clear and unambiguous language employed by him to permit petitioner to force the sale of this property and divest respondents of their interest in same. This is especially true considering the limitations imposed upon the life tenant.

Although petitioner claims that she was decedent's principal beneficiary, this position is not reflected by the record, unless perhaps it is based purely upon actuarial tables and an unconditional life estate. This is not the typical life estate where the possessory interest is not subject to divestment, however. Here, with decedent imposing certain restrictions on the tenancy, the life estate may be terminated prior to the death of the measuring life, for example her [*5]remarriage. Thus, any valuation of petitioner's life estate must necessarily consider its limited marketability. Taking the foregoing into account, when combined with the fact that respondents are the sole beneficiaries of the remainder of decedent's estate, whether passing under his will or by operation of law, it appears that respondents are the principal beneficiaries.

Upon this record, the motion is granted in favor of respondents' and the underlying petition is dismissed (CPLR 3212[b]). Petitioner has failed to establish that the sale of the subject property is expedient or that same comports with the intent of the testator. The court takes no position with respect to the respondents' claim that petitioner has violated the in terrorem clause of decedent's will, as the manner in which the issue was raised is procedurally defective.

This decision constitutes the order of the court.

John M. Czygier, Jr., Surrogate