The following papers were read and considered on the fiduciaries' petition for construction and two orders to show cause by co-fiduciary Carla Marin, one in which she requests an order staying the criminal proceedings currently pending in the Justice Court of the Town of Southeast in the County of Putnam and the other in which she seeks to disqualify the attorney representing the Town of Southeast in such proceeding:

Contextually, decedent died on November 5, 2007 survived by five distributees: three daughters, Carla (co-fiduciary and attorney), Debra a/k/a "Debbie" (an attorney), Andrea a/k/a "Pam" and two sons, Philip (co-fiduciary and attorney) and Carl.

Decedent's handwritten will, admitted to probate on October 16, 2009, provides in relevant part that respondents Debra and Andrea receive certain real property located on Route 22 in Brewster and Lake Carmel in Putnam County in New York, and she left her residuary estate to Carla, Philip and Carl to be divided equally among them. She further directed Carla and Philip to "take care of Carl and don't cheat him.". By way of what is commonly referred to as a "no contest" clause, respondents are cautioned in the ensuing paragraph: "If Debbie or Pam contest my will, they lose what I do leave them.".

Turning first to the construction proceeding, petitioners who are co-fiduciaries argue that, by the filing of objections, respondent Debbie has forfeited her share of her mother's estate.

The burden of proving the testatrix' intent is on petitioners who press for the construction of decedent's will to work a forfeiture of respondents' interest in their mother's estate (see, Matter of McCabe, 269 AD2d 727 [3rd Dept 2000]).

The paramount consideration in construing a will is the testatrix' intent (see, Matter of Singer, 13 NY3d 447 [2009], rearg denied 14 NY3d 795 [2010] citing the seminal case of Matter of Fabbri, 2 NY2d 236 [1957]). All rules of interpretation are subordinated to the requirement that the actual purpose of the testatrix is sought and effectuated as far as is consonant with principles of law and equity. A testatrix' intent is not to be gleaned by focusing on one [*3]particular word, sentence or provision; rather, it must be ascertained from a sympathetic reading of the entire instrument (see, Matter of Carmer, 71 NY2d 781 [1988]; Matter of Guide, 302 AD2d 387 [2nd Dept 2003]). Simply put, the best evidence of the testatrix' intent is found in the clear and unambiguous language of the will itself (see, Matter of Walker, 64 NY2d 354 [1985]; Matter of Cord, 58 NY2d 539 [1983], rearg. denied 60 NY2d 586 [1983]; Matter of Silberman, 23 NY2d 98 [1968], rearg. denied 23 NY2d 921 [1969]; Matter of Wickwire, 270 AD2d 659 [3d Dept 2000], lv dismissed and denied, 95 NY2d 824 [2000]).

Generally, EPTL 3-3.5[b] permits a testator to employ an in terrorem clause to forestall challenges to a will's provisions or its probate. Such clauses, however, are not favored by the courts and will be strictly construed (see, Matter of Singer, 13 NY3d 447 [2009], rearg denied 14 NY3d 795 [2010]; Matter of Fairbairn, 46 AD3d 973 [3rd Dept 2007], lv appeal denied 10 NY3d 708 [2008]; Matter of Ellis, 252 AD2d 118 [2nd Dept 1998], lv denied 93 NY2d 805 [1999]; Matter of Baugher, 29 Misc 3d 700 [Sur Ct, Nassau County 2010]; In re McGoldrick, 7 Misc 3d 1001[A] [Sur Ct, Nassau County 2005]; In re Grupp, 160 Misc 2d 407 [Sur Ct, Erie County 1994]; In re Robbins, 144 Misc 2d 510 [Sur Ct, New York County 1989]; In re Alexander, 90 Misc 2d 482 [Sur Ct, New York County 1977], affd 63 AD2d 612 [1st Dept 1978]).

Courts seek to achieve a balance between a testatrix' desire to avoid a will contest by spurned beneficiaries and the rights of those same beneficiaries to obtain sufficient information to make an intelligent decision as whether to risk triggering the in terrorem clause. Case law reveals that current judicial philosophy favors an expansive reading of SCPA 1404[4] as limited by EPTL 3-3.5[b] in order to reduce the number of will contests (see, Matter of Singer, 13 NY3d 447 [2009], rearg denied 14 NY3d 795 [2010]).

The meaning and import of the word "contest" as used by decedent in her holograph will is the gravamen of this construction proceeding. In construing words in common use, as opposed to technical terms of art with rigid definitive meanings, this Court must endeavor to place itself in the testatrix' position, and from her viewpoint, seek the meaning which was in her mind when she employed the word "contest" (see, Wiseman v Phipps, 288 NY 311 [1942], bearing in mind that a beneficiary is not to be disinherited or excluded by words of doubtful implication in a will (see, In re Parker's estate, 118 Misc 121 [Sur Ct, New York County 1922], affd 204 AD 876 [1st Dept 1922], affd 236 NY 583 [1923]). Similarly, it is not within the province of this Court to speculate on why decedent used certain language (see, Matter of Slack, 50 Misc 2d 81 [Sur Ct, Broome County 1966]; Matter of Turk, NYLJ, Oct. 15, 1999 at 34, col 6 [Sur Ct, Kings County]) nor will this Court create a new will to carry out some supposed but unexpressed purpose but instead will implement the testatrix' intent as she has manifested in the language of her will (see, Matter of Jones, 38 NY2d 189 [1975]).

In light of these guiding principles where, as here, the will was drafted by the testatrix, a lay person and in her own handwriting, the language of the instrument will be interpreted from a layman's point of view and the ordinary meaning of the words used by her will be adhered to and given effect (see, Baxter v Mairs, 223 AD 579 [2nd Dept 1928]; Estate of Gutman, NYLJ, Jun. 3, 1999 at 32, col 5 [Sur Ct, Kings County]). Moreover, where there is a clear indication that she was unaware of the precise legal meaning of the words employed, the technical connotation of words will not be applied (see, In re Goetz' Will, 177 Misc 906 [Sur Ct, Erie County 1942]; In re Gyllstrom's Will, 172 Misc 655 [Sur Ct, Kings County 1939]; In re Mahlstedt's will, 140 Misc 245 [Sur Ct, Westchester County 1931], affd as modified on other grounds, 234 AD 891 [2nd Dept 1931]). This is so because words employed by lay drafters are not used in any technical sense and have only such meaning as the words convey to the users thereof (see, In re Jacobson's Estate, 33 Misc 2d 21 [Sur Ct, New York County 1962]; In re Snell's Estate, 173 Misc 282 [Sur Ct, New York County 1939]; In re Van Hoesen's Estate, 151 Misc 617 [Sur Ct, Monroe County 1934]).

The meaning of the word contest has been defined, inter alia, as a "struggle or fight for, as in battle", "to argue against; dispute: to contest a controversial question; to contest a will, to call in question and to contend for in rivalry" necessarily denoting something more expansive than the term "trial" (see, Matter of Cronin's Will, 143 Misc 559, 564 [1932] affd 237 AD 866 [2nd Dept 1932]). It implies that issues have been raised by the parties and pleadings in the form of an answer or objections have been filed. In a broader sense, "contest" has been interpreted as "a trial, judgment and adjudication; in short, legal opposition pressed home to a decision" (see, Matter of Stiehler, 133 Misc 2d 253 [Sur Ct, Nassau County 1986]; Matter of Zuckerman, 13 Misc 2d 93 [Sur Ct, Nassau County 1957]; Matter of Cronin's Will, 143 Misc 559, 564 [[1932] affd 237 AD 866 [2nd Dept 1932]).

Since not all wills employ the same language in no contest-type provisions and mindful that such clauses are strictly construed (see, Matter of Singer, 13 NY3d 447 [2009], rearg denied 14 NY3d 795 [2010]; Matter of Fairbairn, 46 AD3d 973 [3rd Dept 2007], lv appeal denied 10 NY3d 708 [2008]; Matter of Ellis, 252 AD2d [*4]118 [2nd Dept 1998], lv denied 93 NY2d 805 [1999]), the Court must carefully parse the specific language employed by the testatrix and compare the respondents' violative acts alleged against the language of the in terrorem provision to see whether their specific conduct falls within such proscription.

It is observed that filing objections to a will does not necessarily result in a forfeiture in every case. Whether or not a testatrix' intention is to impose a forfeiture of a beneficiary's shares as expressed in a particular will must be determined on an individual basis. For example, the filing by a beneficiary of objections to probate has been found not to violate an in terrorem clause where such objections are withdrawn before trial (see, Matter of Stiehler, 133 Misc 2d 253 [Sur Ct, Nassau County 1985]) or where the objectant consents to the admission of the will to probate without extorting any favorable compromise as a condition of the withdrawal (see, Matter of Rimland, 2003 NY Slip Op. 50966[U][Sur Ct, Bronx County 2003]). Nor has an in terrorem provision been triggered where there has been an unsuccessful effort to file unsigned and unverified objections (see, In re Matchette's Estate, 183 Misc 228 [Sur Ct, New York County 1944]) or when a proceeding to revoke letters testamentary is instituted (see, Matter of Stralem, 181 Misc 2d 715 [Sur Ct, Nassau County 1999]). Courts have held that the filing of objections does not result in a forfeiture where such objections are later abandoned (see, Matter of Work, 76 Misc 403 [Sur Ct, New York County 1912], affd 151 AD 707 [1st Dept. 1912]; Matter of Bratt, 10 Misc 491 [Sur Ct, Erie County 1894]). Likewise even a broad in terrorem clause was not interpreted to forfeit the share of a testatrix' daughter where, among other things, she instituted numerous legal proceedings against the estate fiduciaries in the United States and attempted to file a petition to obtain letters of administration (see, Matter of Robbins, 144 Misc 2d 510 [Sur Ct, New York County, 1989]).

Presumably the testatrix in this instance carefully chose the word "contest" not to have the will fail. If she had anything in mind on the subject, it is apparent she wanted to preserve her will as executed. Notably, the tenor of decedent's will clearly displays a cautionary tone directed at petitioners where she warned them to "...take care of Carl and don't cheat him." and admonished Debbie and Pam not to contest her will, in what is ostensibly an effort by decedent to facilitate cooperation among her children in the administration of her estate.The language employed by her is simple and straightforward: "If Debbie or Pam contest my will, they lose what I do leave them.". The testatrix' use of the word "contest" in this instance is not modified in any sense, and absent qualifying language establishing a contrary meaning or ambiguity, a reasonable interpretation of the subject "no contest" clause requires a narrow reading. In light of the foregoing, this Court finds that to invoke the in terrorem clause, objections must have been filed and not withdrawn (Matter of Cronin's Will, 143 Misc 559, 564 [1932] affd 237 AD 866 [2nd Dept 1932]; In Sonderling's Will, 157 Misc 231 [Sur Ct, Westchester County 1935]). This conclusion comports with the previously articulated general rule that forfeiture clauses must be strictly construed (see, Matter of Singer, 13 NY3d 447 [2009], rearg denied 14 NY3d 795 [2010]). Here extensive discovery has been undertaken including numerous, lengthy depositions and exchanges of voluminous document discovery over the course of several years. Objections were filed by respondent Debbie but have not been withdrawn or abandoned even in the face of a summary judgment motion in the probate proceeding. It is therefore patently clear that her conduct has wrought a forfeiture of her share of decedent's estate (see, Matter of Ellis, 252 AD2d 118 [2nd Dept 1998], lv denied 93 NY2d 805 [1999]).

Petitioners next complain that although respondent Andrea did not file objections in the probate proceeding, she acted in concert and conspired with Debra in an attempt to prevent probate of the instrument. They assert that an agreement has been forged between the respondents so that if Debra should ultimately be excluded from sharing in decedent's estate, Andrea agreed to provide Debra with a share of her bequest. In essence the fiduciaries argue that Debra acted as a "stalking horse" for Andrea by agreement to engage in such conduct so as to trigger the "no-contest" clause and therefore, both respondents must be precluded from sharing in the proceeds of decedent's estate (see, Matter of Pasternack, 52 Misc 2d 413 [Sur Ct, New York County 1966]).

In arriving at this tortured reading of decedent's will, petitioners rely on the language quoted earlier: "If Debbie or Pam contest my will, they lose what I do leave them.". They urge this Court to interpret such provision to exclude both respondents from sharing in decedent's estate only upon their conjecture that such a conspiracy exists between the respondents.

Viewing the will as a whole and mindful that the testatrix was a layperson, it transcends belief that she intended to hold her two daughters, Debra and Andrea, responsible for each other's actions based upon what clearly and simply is, a grammatical error. Had the testatrix' intention been to impose such a burden on respondents, she could have employed such language as "If either Debbie or Pam contest my will, then both of them will lose what I do leave [*5]them" or "If either Debbie or Pam contest my will, then each of them will be held responsible for the other's conduct, and both of them will lose what I do leave them" or any number of variations that would have manifested the testatrix' intent to preclude respondents from sharing in her estate of either if they contested her will. That language however, is not present in this instance and where, as here, a testatrix' intent may be ascertained from within the four corners of the document, it would be reversible error to resort to extrinsic evidence as petitioners urge this Court to do (see, Matter of Ragone, 58 NY2d 864 [1983]; Matter of Jones, 38 NY2d 189 [1975]; Matter of Christian, 300 AD2d 8 [1st Dept 2002]; Estate of McCabe, 269 AD2d 727 [3d Dept 2000]; Matter of King, 198 AD2d 115 [1st Dept 1993]; Matter of Knapp, 119 AD2d 676 [2nd Dept 1986]; Matter of Cole, 18 Misc 3d 1105[A][Sur Ct, Nassau County 2007]). Moreover, this Court may not rewrite her will to effectuate petitioners' reading of decedent's will, which this Court notes, if employed, would substantially increase their shares.

Finally, it is observed that petitioners must proffer something more than baseless, conclusory allegations and conjectures. Here, despite engaging in extensive discovery over the course of several years and prevailing in a summary judgment motion at its conclusion in the probate proceeding, petitioners can offer no more than mere suspicion and speculation in support of their claims that respondents allegedly engaged in conspiratorial conduct (see, Matter of Baugher, 29 Misc 3d 700 [Sur Ct, Nassau County 2010]). Indeed, courts have held that a beneficiary's participation in a contested probate proceeding does not constitute a direct challenge even where it was alleged that such beneficiary was the source of the litigation (see, Matter of Cioffi, NYLJ, June 18, 1997 at 33, col 6 Sur Ct, Westchester County]).

In light of the foregoing, this Court finds that the fiduciaries' petition is granted with respect to respondent Debra a/k/a Debbie and she is precluded from inheriting under decedent's will but denied as to respondent Andrea a/k/a Pam.

We now turn to the order to show cause by co-fiduciary Carla, in which she seeks a stay of the criminal proceedings currently pending in the Justice Court in the Town of Southeast in the County of Putnam where the estate is a named defendant on the grounds that respondent Debra a/k/a Debbie has filed a petition for bankruptcy and for removal of such proceedings to Surrogate's Court in Putnam County. This Court notes that a copy of Debra's bankruptcy petition allegedly filed pursuant to Chapter 13 of the U.S. Bankruptcy Code has not been furnished to this Court.

As counsel concedes in this instance, the genesis of the pending proceeding in the Town of Southeast involves a criminal matter commenced by the Town for violations of its zoning codes and local ordinances.

The State Constitution imbues the Surrogate's Court with jurisdiction over all actions and proceedings relating to the affairs of decedents and administration of estates and actions and proceedings arising thereunder and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law." (NY Const., Art VI, 12 [d]), and therefore, is a court of limited subject matter jurisdiction (see, Matter of O'Connell, 98 AD3d 673 [2nd Dept 2012]; Matter of Deans, 68 AD3d 767 [2nd Dept 2009], lv appl denied 14 NY3d 704 [2010]; see also SCPA 201). While the jurisdiction of the Surrogate's Court is broad where the affairs of decedents or the proceedings pertain to the administration of an estate (see, Matter of Piccone, 57 NY2d 278 [1982], rearg denied 58 NY2d 824 [1983]; Wagenstein v Shwarts, 82 AD3d 628 [1st Dept 2011]), its limited subject matter jurisdiction does not extend to criminal matters over which Supreme Court has exclusive jurisdiction (see, Warren's Heaton on Surrogate's Court Practice, Section 2.02[3][b] 2013).

Assuming arguendo that this Court could somehow entertain jurisdiction, Carla's insistence that this matter is automatically stayed in light of Debra's application for voluntary bankruptcy under Chapter 13 of the U.S. Bankruptcy Code is misplaced. As pointed out by respondent's attorney, Debra has consented to a partial lifting of the automatic stay as it may apply in the pending criminal proceeding pending in the Justice Court of the Town of Southeast ^[FN1].

Finally we turn to co-fiduciary Carla's request for the disqualification of the Town of Southeast's attorney, Stephen R. Lewis, Esq. which notably, her brother and co-fiduciary has not joined.

In light of this Court's determination that it does not have jurisdiction over the criminal proceeding, this Court cannot make a finding with regard to whether the Town's counsel should be disqualified in such proceeding. [*6]

Based on the foregoing, it is

ORDERED that, the fiduciaries' petition seeking the construction of decedent's will is granted as to Debra a/k/a Debbie, and she is precluded from inheriting the real property devised to her under decedent's will but is denied as to Andrea a/k/a Pam; and it is further

ORDERED that, the orders to show cause for, inter alia, a stay of the criminal proceedings in the Justice Court, Town of Southeast, County of Putnam and State of New York and for the disqualification of Stephen R. Lewis, Esq.,

counsel for the Town of Southeast are denied.

This constitutes the decision and order of this Court.

ENTER

___________________________________

HONORABLE James D. Pagones

Judge of the Surrogate's Court

TO:

070313 decision & order