In this proceeding for the construction and effect of Article Fifth (D)(2) and Article Sixth of the decedent's last will and testament, the petitioner, decedent's daughter Marina Fakiris (Marina), moves for summary judgment. The respondents co-executor Donna Fakiris f/k/a Donna Geraghty (Donna) and the decedent's son Kostas Fakiris (Kostas) oppose the motion and each cross-moves for summary judgment.

As stated in her petition, Marina seeks the Court's determination that: (a) Article Sixth be construed in such manner that "MARINA FAKIRIS is the sole remaining residuary beneficiary of the residuary estate, subject only to the bequest payable from [*2]the residuary in the amount of $250,000.00 to Donna Fakiris f/k/a DONNA GERAGHTY" and (b) Article Fifth (D)(2) "fails as a bequest, as it is an option to purchase 60% of SUMMIT stock for $500,000.00, which was not exercised by KOSTAS FAKIRIS pursuant to the terms of the option. As such, said property is deemed to become a part of the residuary estate".

The answers of Donna, her co-executor Donna Neubauer and Kostas contain general denials and each seeks the dismissal of this proceeding.^[FN1]

The Court's task in a will construction proceeding is to determine and give effect to the testator's intent as expressed in the will (Matter of Fabbri, 2 NY2d 236). The testator's intent is to be gleaned not from a single word or phrase, but from a sympathetic reading of the will as an entirety, giving to the words employed their everyday and ordinary meanings (Matter of Gustafson, 74 NY2d 448; Matter of Jones, 38 NY2d 189).

The Court will turn first to Article Fifth (D)(2) of the Will, which reads as follows:

(D) I hereby give, devise and bequeath to my son, Kostas

Fakiris, the following, absolutely, per stirpes:

2) My sixty (60%) percent stake and interest in Summit Waterproofing & Restoration Company ("SUMMIT") providing he gives the sum of FIVE HUNDRED THOUSAND ($500,000.00) DOLLARS for this entire stake and interest to my daughter, MARINA FAKIRIS. Said stock representing my sixty (60%) percent stake shall be held in Trust by my Co-Trustees until my son, Kostas Fakiris shall pay the entire five hundred thousand ($500,000.00) dollars within three (3) years of the date of my death. Said payments must be made by my son, KOSTAS FAKIRIS, personally, in annual installments of one hundred sixty six thousand six hundred and sixty six and 66/100 ($166,666.66) dollars prior to each of the first three anniversaries of my death; or if my son chooses he can prepay all or the balance owed to my daughter, MARINA FAKIRIS, at any time prior to the three (3) year anniversary, without penalty. Upon doing so, the stock representing my sixty (60%) percent interest shall be released to KOSTAS FAKIRIS, by my CO-TRUSTEES to be his absolutely, per stirpes.

Moreover, prior to MARINA FAKIRIS receiving full payment, my CO-TRUSTEES shall have full voting privileges and proxy to do so as if the CO-TRUSTEES owned my sixty (60%) percent interest outright. My son, KOSTAS FAKIRIS, shall not pledge, collateralize, sell or otherwise encumber my said sixty (60%) percent interest in SUMMIT. Furthermore, my son, KOSTAS FAKIRIS, and my CO-TRUSTEES will act in good faith and diligence to manage SUMMIT in the best manner possible, to exercise good business practices for the entire duration that my daughter, MARINA FAKIRIS, is owed money by my son, KOSTAS FAKIRIS.

Should my son, KOSTAS FAKIRIS, fail to pay my daughter, MARINA FAKIRIS, [*3]all or a part of the five hundred thousand ($500,000.00) dollars within the annual installments and/or the expiration of the third anniversary of my death, then my CO-TRUSTEES may use their absolute discretion via the implicit and explicit powers vested as corporate shareholders of SUMMIT and/or as CO-TRUSTEES vested by the terms of this Will and by the powers prescribed by law, to ensure that my daughter, MARINA FAKIRIS, shall receive the entire five hundred thousand ($500,000.00) legacy described herein.

It is undisputed that Kostas has failed to make any payments to Marina pursuant to Article Fifth (D)(2) since the date of the decedent's death on April 8, 2013.

Marina contends that the option to purchase stock contained in Article Fifth of the decedent's will has lapsed due to Kostas' non-payment, while Donna and Kostas contend that Kostas' right to make payment to Marina under Article Fifth has not lapsed.

The Court finds no ambiguity exists in the provisions of Article Fifth (D)(2). The decedent clearly states his intention that Kostas shall pay the entire $500,000.00 dollars within three years of the date of the decedent's death, and that the payments "must" be made in annual installments of $166,666.66 prior to each of the first three anniversaries of the decedent's death.

Donna and Kostas each contend that additional language in the Article reflects that the decedent only required Kostas to pay the full amount of $500,000.00 to Marina at any time within three years of the date of the decedent's death. The first clause relied on for this contention is found in the second sentence of the bequest, wherein the decedent directs that Kostas shall pay the full amount to Marina "within three (3) years of the date of my death". This language, however, is immediately followed by the direction that "[s]aid payment" must be made by Kostas in equal annual installments prior to each of the first three anniversaries of the decedent's death.

The second clause relied on by the cross-movants is found in the same sentence: "or if my son chooses he can prepay all or the balance owed to (Marina) at any time prior to the three (3) year anniversary, without any penalty". The last clause relied on is found in the third paragraph of this bequest, wherein the decedent addresses Kostas' failure to pay "all or a part of the five hundred thousand ($500,000.00) dollars within the annual installments and/or the expiration of the third anniversary of my death". However, this language does not contradict the decedent's clearly stated intention that Marina be paid, at a minimum, annually. The reliance or interpretation placed on these provisions by Donna and Kostas is misplaced as these clauses merely allow Kostas to "prepay" any or all of the three installments if he so chooses; it does not allow Kostas to defer payments for three years. Any other reading or interpretation would stretch logic and the English language to the breaking point.

Since the Court finds no ambiguity in the words used by the decedent in Article Fifth (D)(2), the use of extrinsic evidence in the form of the drafting attorney's affidavit is improper and accordingly it has not been considered in this determination (Matter of Bisconti, 306 NY 442; Matter of Bloomberg, 6 AD2d 132; In re Debout's Will, 35 AD2d 1067; see, Matter of Goldstein, 46 AD2d 449, affd 38 NY2d 876).

Regardless of the favorable construction, however, to obtain the ultimate relief [*4]requested Marina must establish, prima facie, that the bequest of stock to Kostas contained in Article Fifth (D)(2) of the decedent's will has lapsed. To the extent that Marina contends Kostas' failure to pay her results in the stock having to be distributed pursuant to the residuary clause of the will, she is mistaken. There can be no lapse in the manner asserted by Marina since the decedent has, in fact, provided his own solution to the eventuality that occurred, Kostas' non-payment, in the form of a substitutional gift found in the third paragraph of the article (see, Booth v Baptist Church of Christ, 126 NY 215; Sherman v Richmond Hose Co., 230 NY 462; In re Harrington, 243 AD 235).

This paragraph specifically provides that in the event of a non-payment to Marina, the trustees of the trust to be funded with the Summit stock are to take action for Marina's benefit in an effort to "ensure" that she receives this monetary bequest. Kostas' contention that no such trust has been established by the will since the nominated trustees are "only trustees for the real property bequeathed" to the decedent's infant grandson is wholly without merit. Article Fourth (C) of the will clearly appoints the co-executors as co-trustees "of any trust which may be created or arise" from the will. The second sentence of Article Fifth (D)(2) unequivocally directs that the decedent's interest in Summit be held by the trustees until full payment is made by Kostas to Marina. Since Kostas has not made any payments to Marina to date, the trustees are free, and in fact required, to provide such payments to her from their administration of this trust.

Accordingly, the branch of the motion for a determination that the bequest of Summit stock to Kostas has lapsed is denied and the branches of the cross-motions for a determination that the bequest has not lapsed are granted to the extent that the Court finds that the gift to Kostas has not lapsed for failure to pay Marina since the will provides for the contingency which occurred.

The Court turns now to the branches of the motion and cross-motion seeking to construe Article Sixth of the Will, which reads as follows:

All the rest, residue and remainder of my estate, both real and personal, of whatsoever kind and nature and wheresoever the same may be situated, of which I may die, seized or possessed, or to which I may be entitled at the time of my death, I give, devise and bequeath to my friend, DONNA GERAGHTY, the sum of TWO HUNDRED AND FIFTY THOUSAND ($250,000.00) DOLLARS should she survive me (sic). In the event that DONNA GERAGHTY shall predecease me, then I hereby give, devise and bequeath the aforementioned sum along with the rest, residue and remainder of my estate wherever situated to my daughter, MARINA FAKIRIS, absolutely, per stirpes.

Marina contends that after a distribution to Donna of $250,000.00 she is the residuary beneficiary. Donna and Kostas contend that Donna is the sole residuary beneficiary.

The Court finds that the language of this article does present an ambiguity. A reading of the plain words used might support an argument that the decedent intended Donna to receive $250,000.000 and the residuary, while the same went to Marina only in the event that Donna predeceased him, or that he intended Donna receive the first $250,000.00 of his residuary if she survived him, with the balance to Marina. Under [*5]either party's construction of Article Sixth, however, it is absolutely clear that Donna is to receive the first $250,000.00 of the residuary estate.

But it does not appear from the papers presented that the residuary estate consists of property which has a value remotely approaching $250,000.00. Since a present necessity for construction of Article Sixth has not been demonstrated, the issues presented herein are totally academic (see, In re Mount, 185 NY 162).

Accordingly, this branch of the petition is denied without prejudice, with leave to movant to seek a construction of Article Sixth of the will in a proceeding for the settlement of the executors' account, and the motion and cross-motions seeking summary judgment on the parties' construction of this article are therefore denied.

Settle decree.