Objectants Jason Langford, Carolyn Langford and Andrew Langford move, inter alia, for partial summary judgment on their objections numbered 1 - 5 and 12 to the Petitioner's accounting as trustee of the Edward P. Langford Irrevocable Trust (hereinafter "Trust"). These objections pertain to the issue of whether the Decedent, by executing an instrument purporting to be his Last Will and Testament, effectively exercised a power of appointment reserved in the Trust. The Petitioner, in response, has filed an affidavit opposing the motion and requests summary judgment on this issue in her favor pursuant to CPLR § 3212 (b).

By a document executed on April 26, 2004, the Decedent created an irrevocable inter vivos trust wherein he appointed the Petitioner and her brother [*2]

Robert as co-trustees of the Trust. The Decedent had two other children Patricia Ann McGarvey and Edward R. Langford. The Trust provided for the distribution of its income to the Decedent during his lifetime. Upon the Grantor's death Article IV of the Trust provided as follows:

A.After making provision for the payments, if any, described in ARTICLE THREE, the Trustees shall distribute the remaining Trust Estate as follows:

(i)To or among any one or more members of a class consisting of the Grantor's children, and their descendants, in any degree, whether currently living or born hereinafter in such proportions and amounts, without regard to equally, outright or in further trust, as the Grantor may direct and appoint by his Last Will and Testament, by specific reference hereto...

B.In the event that the Grantor has not exercised the special power of appointment . . . then the trust principal together with any accumulated income, if any, shall be distributed to Grantor's issue, then living, per stirpes.

On September 5, 2005, co-trustee Robert Langford died survived by three children, who are the Objectants herein. Approximately two months after Robert's death, the Decedent executed a document purported to be his Last Will and Testament. Petitioner, who is also the nominated fiduciary thereunder, has commenced a proceeding seeking probate of the instrument. The third paragraph of the document, the only one which makes distribution of the Decedent's property, states:

All the rest, residue and remainder of my estate, whether real or personal . . . over which I shall have any power of testamentary disposition . . . I give, devise and bequeath to my children PATRICIA ANNE MCGARVEY, VIRGINIA MARIE DEMATTEIS MOSKOWITZ and EDWARD R. LANGFORD, in equal shares, share and share alike.

This paragraph also expressly provides that the Decedent has made no provision for the Objectants on the stated basis that "they have been sufficiently provided for by the estate of their late father". The Objectants have also filed objections to the probate of the will alleging, inter alia, lack of capacity and undue influence.

Insofar as this motion is concerned, Objectants, relying on EPTL §10-6.1(b), assert that the Decedent failed to exercise the power of appointment contained in the Trust since the Decedent did not make "specific reference" to the power of appointment in the Will.

EPTL §10-6.1 provides, insofar as is applicable, as follows:

(a) Subject to paragraph (b), an effective exercise of a power of appointment does not require an express reference to such power. A power is effectively exercised if the donee manifests his intention to exercise it...

(b) If the donor has expressly directed that no instrument shall be effective to exercise the power unless it contains a specific reference to the power, an instrument not containing such reference does not validly exercise the power.

The Objectants contend that since decedent, as grantor, expressly directed that the power of appointment be specifically referenced in the instrument purporting to exercise the power, EPTL § 10-6.1 (a) is inapplicable, and subsection (b) controls. Furthermore, they contend that since the purported Last Will and Testament contains no specific reference to the power, the power was not validly exercised.

Clearly the language of Article IV (A)(i) of the Trust, which provided that the power be exercised as "...the Grantor may direct and appoint by his Last Will and Testament, by specific reference hereto" is sufficient to trigger the application of EPTL §10-6.1(b) (See, Shenkman v. Dennigan, 290 AD2d 374). It is also obvious that the language of the Last Will and Testament, does not specifically mention the power, but refers generally to "any power of testamentary disposition" decedent may poses. Relying on the foregoing Objectants assert they are entitled to summary judgement.

In opposition, the Petitioner interprets the statute differently and claims that EPTL §10-6.1(b) is not triggered unless the donor of the power of appointment, in addition to requiring specific reference to the power, expressly states that "no instrument shall be effective to exercise the power" absent such specific reference.

The Petitioner's reading of the statute is contrary to its plain meaning and her reliance on maxims of statutory interpretation in this instance to support that view is incorrect. When applying statutes "[c]ourts should not . . . add restrictions or limitations where none exist, nor should they interpret what has no need of interpretation. When words have a definite and precise meaning, courts should not go elsewhere in search of conjecture so as to restrict or extend that meaning" (Erie County Agricultural Soc. v Cluchey, 40 NY2d 194, 200; see also, NY Statutes §76). There is nothing ambiguous, unclear or uncertain about EPTL

§10-6.1(b) and, thus, no necessity for a construction as the Petitioner contends.

The Petitioner's reliance on In re Estate of Berard, 89 Misc 2d 838 for authority in support of her argument in this regard is misplaced as the court in that matter found the trust in question did not require a "specific reference" to the power in order for it to be exercised. It does not stand for the proposition espoused by petitioner (See also Estate of Hamilton 190 AD2d 027).

Indeed, the one decision from a New York appellate level court squarely on point with this issue, Shenkman v Dennigan, supra, directly contradicts the Petitioner's interpretation of EPTL §10-6.1(b). Although Shenkman is a decision from the Appellate Division, First Department, in the absence of a contradictory holding from the Appellate Division, Second Department, this court shall apply the rationale in the above decision to the matter at bar (See, Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663).

The Petitioner's reliance on In re Estate of Granirer, 131 AD2d 477 for authority [*4]and her assertion that it is binding precedent in this case is also misplaced. Granirer is both factually and legally distinguishable from the instant case. Specifically in that case, unlike the matter at bar, the Decedent unquestionably made specific reference to a power of appointment in her will. Additionally, the court in Granirer did not apply EPTL §10-6.1, but rather its predecessor-former Real Property Law §147. That statute is not, as the Petitioner contends, identical to EPTL §10-6.1. Unlike the statute applied in the

instant matter, Real Property Law §147 contained "four disjunctive clauses" that were not subject to the limiting language that is contained in EPTL §10-6.1(b).

Finally, petitioner's argument that objectant's statutory interpretation would thwart decedent's intent in 2005 to specifically exclude objectant's from benefitting from his "estate" is unpersuasive. The decedent's purported last will and testament has not been admitted to probate and objections thereto have been filed. Consequently it is presumptuous to state with any certainty what decedent's testamentary intent was. However, it is undisputed the decedent intended, in 2004, that specific reference be made to the power of appointment for it to be exercised.

Accordingly, the branch of the Respondent's motion for partial summary judgment sustaining objections 1 - 5 and 12 to the Petitioner's accounting is granted, the Petitioner's request for summary judgment is denied, and the Petitioner is directed, upon the final settlement of her account to distribute 25% of the net assets in the Trust to the Objectants, equally.

The branch of the Respondent's motion seeking the imposition of costs, including reasonable attorney's fees, and financial sanctions against the trustee and her attorneys pursuant to 22 NYCRR §130-1.2 is denied.

A pretrial conference on the remaining objections shall be held on March 4, 2013 at 9:30 AM.

This is the decision and order of the Court.

Dated: February 1, 2013_________________________SURROGATE