Decedent died on March 16, 1999, at age 72. She was unmarried and had no children, and, of her seven siblings, only three survived her: Francis (born in 1908), Dorothy (born in 1922), and Robert (born in 1928). Decedent's siblings had a total of 19 children — decedent's nieces and nephews — 2 of whom predeceased decedent. And, when decedent died, she was also survived by over 40 grandnieces and grandnephews.

Decedent's Last Will and Testament dated March 12, 1999, was admitted to probate on October 11, 2000. Letters Testamentary were issued to decedent's sister, Dorothy, and, because the residuary estate was devised to a testamentary trust, Letters of Trusteeship were issued to Anne Marie Roach [now Anne Marie Downey Roach] and Michael Procknal [collectively, the Trustees].

Article Seventh of the Will — the first of two Article Sevenths, the second of which (set out on the fourth page of the Will) is a general survivorship clause which was obviously misnumbered — deals with decedent's residuary trust estate. It directs in paragraph A that the net trust income be paid "in convenient installments to my sister, Dorothy A. Downey, during her lifetime". Upon Dorothy's death, the Trustees are directed in paragraph B (1) and (2) to pay "out of the said net income", the sum of $20,000.00 per year in quarterly installments to each of decedent's two brothers, Francis and Robert, "until [their] death". Article Seventh also provides, again upon Dorothy's death, that, after the payment(s) to Francis and Robert have been made, "the balance of the net income" shall be used "for the following purposes":

"3. a. Tuition, high school and/or college, plus room and board, away from home, of any of my nephews, nieces, grandnephews and grandnieces.

b. Tutoring for any of my nephews, nieces, grandnephew, and grandnieces.

b.[sic] College shall be limited to 4 years for an undergraduate degree, and 4 years for a graduate degree, and said beneficiaries must be enrolled full time.

c. In the event the applied net income from the trust is not sufficient for the tuition and room and board in "a." above, then my Trustees may invade the principal and use and apply so much of the principal of the Trust as they deem necessary to pay the tuition and room and board in "a" above, even to the point of exhausting same.

d. Said Trust monies are to be applied after the use of any scholarships or grants, but without regard to other income of my nephews, nieces, grandnephews and grandnieces.

4. If any calendar year the said income from the trust is in excess of the amounts necessary for the purposes of 3a above, my Trustees shall accumulate the said income and add it to the principal of the said Trust.

C. The Trust shall be presumed to end when the youngest grandnephew or grandniece shall have not attended college for six consecutive months.

D. Upon the graduation of the last of my nephews, nieces, grandnephews and grandnieces, my Trustees shall pay over and distribute the principal of the said Trust to my nephews and nieces, grandnephews and grandnieces, in equal shares. If any of my nephews, nieces, grandnephews or grandnieces shall predecease me or die before the Trust is ended, then his or her share shall be given to his or her issue, per stirpes.

E. For purposes of this Will, the issue of Mary Procknal Downey shall be included in the terms "nephews, nieces, grandnephew and grandniece" and be entitled to all the benefits thereof."

In October, 2000, Dorothy filed a construction petition in which two specific issues in the trust provisions of the Will were identified. First, Dorothy noted that, "[i]n order to end the trust someday, it is necessary to 'close' the class of 'nephews, nieces, grandnephews and grandnieces'. Potential grandnephews and grandnieces could be born as long as a niece or nephew is alive" (emphasis added). Second, Dorothy pointed out that "[a]nother construction problem arises in subparagraph E because the 'issue of Mary Procknal Downey' are included in the above class, but could potentially go on forever" (emphasis added). Although settlement discussions took place about the issues, no decree resolving that proceeding was ever signed, and the estate was informally closed in 2001.

Dorothy died at age 95 on January 3, 2018 [see, Erie County Surrogate's Court file #2018-644]. Her probate file indicates that she had never been married, and that all her siblings had predeceased her [Francis in 2008 and Robert in 2003].

In September, 2020, the Trustees of decedent's testamentary trust filed a new petition for advice and direction and for construction of decedent's Will. The relief sought in the petition is extensive and broad-ranging, but a significant aspect of the relief sought was a determination by this Court that, with respect to the trust, the classes of decedent's "nephews, nieces, grandnephews and grandnieces" should be construed to encompass only those class members who were alive at, or who had been conceived as of, March 16, 1999, the date of decedent's death. Jurisdiction was obtained over all necessary parties, guardians ad litem [GAL] were appointed where necessary, and some objections were filed.

Pending now before me is a motion by the Trustees for partial summary judgment. That motion is limited to seeking a declaration from this Court "that the class of [trust] beneficiaries described in said Will shall be made up of only those nephews, nieces, grandnephews and grandnieces who were living or had been conceived at the date of death of said Testatrix on March 16, 1999".

The Trustees, in support of their position that the class of nephews, nieces, grandnephews and grandnieces entitled to benefits under the trust be limited to those living or conceived as of decedent's date of death, argue that, without such limiting of the class, the trust would violate the Rule Against Perpetuities (EPTL 9-1.1) [hereafter, the Rule] and jeopardize the entire trust. The Trustees urge that the canon of construction which presumes that a creator intends her estate to be valid ( EPTL 9-1.3[b]) compels their proposed construction.

GAL Wick sets forth various potential constructions of the class: 1) include all beneficiaries living at any time during the administration of the Trust; 2) include those beneficiaries living at the time of decedent's death; 3) include those beneficiaries living at the time of Dorothy's death; and 4) include those beneficiaries alive during the longest period of time permitted under the Rule. GAL Wick argues that the only valid interpretation of the class under the Rule is the one advanced by the Trustees, namely, determining the class as of decedent's death.

GAL McKenna argues generally in favor of the last of the options set forth by GAL Wick. Her preferred construction would add a clause to include in the class of those who actually could receive benefits under the trust any of decedent's nephews, nieces, grandnephews, and grandnieces alive at, or born after, decedent's death, but would provide also that the trust would terminate no later than twenty-one years after the death of the last to die of all measuring [*2]lives (construed to be those trust beneficiaries in being on the date of decedent's death).

The Rule contains two relevant provisions, and violation of either is a violation of the Rule. EPTL 9-1.1(a) provides that any interest which suspends the absolute power of alienation beyond lives in being plus 21 years is void; and, EPTL 9-1.1(b) provides that no interest is valid unless it must vest, if at all, within lives in being plus 21 years. To determine compliance with the Rule, a Court must look to what might happen from the time the interest was created, and, if a testamentary provision could possibly result in a violation of the Rule, it is invalid. See, Matter of Isganaitis, 124 Misc 2d 1 (1983).

Here, the parties all agree that decedent's intent with regard to the extent of the class composition cannot readily be determined by the language of the Will. That decedent valued education is clear based on the trust provisions at issue and from her career as an educator. However, arguments made about whether decedent preferred to provide for those family members whom she knew in life versus inclusion of after-born family members are entirely speculative.

In construing this Will, I start with the presumption that decedent intended the trust provisions to be valid (see, EPTL 9-1.3 [b]). In Will construction proceedings generally, as this Court [Howe, J.] has noted, "[t]he principal objective . . . is to discern and implement the intention of the testator" (Matter of Goodyear, 58 Misc 3d 1201 [A] [2017]), and "'the cardinal rule is that the intent of the testator will "prevail over all other canons of construction"'" (id., quoting Matter of Shannon, 107 AD2d 1084, 1085 [[1985][internal citations omitted]). Furthermore, where the Rule is involved, "there is a long-standing principle of interpretation that when there is an alternative possible construction that would not violate the rule, the trust will not be invalidated and a construction that does not violate the rule will be found to be the one the grantor intended (EPTL 9-1.3 [b]; see Schettler v. Smith, 41 NY 328, 336 [1869])" (Matter of de Sanchez, 57 AD3d 452, 455 [2008]).

Here, the trust provisions themselves, as well as the submissions of all the parties, establish that decedent's overriding objective was to ensure educational opportunities for a class of family members. As Trustee Procknal has put it:

"The decedent had spent her life working in the field of education and made known to her extended family members, including myself and my siblings, the importance of higher education and the pursuit of degrees awarded for college and graduate school attendance."

A construction of the class where the class members are inclusive of those born after, but not conceived prior to, decedent's death would certainly violate the Rule. If this construction were adopted, any nephew alive at decedent's death could father a child — a grandniece or grandnephew — up to his date of death (see, EPTL 9-1.3 [e] ["a male can have a child at fourteen years of age or older"]), that date potentially being decades into the future after decedent died. This would have the effect of impermissibly extending the measuring class under the Rule far beyond those "lives in being plus 21 years", thereby invalidating the trust.

With respect to the proposed construction which would (1) terminate the trust on that date determined as 21 years after the date of death of the last to die of those in the "niece/nephew/grandniece/grandnephew" class who were alive on, or conceived by, the date of [*3]decedent's death, but (2) allow distributions to any class members born after decedent's death up to the date the trust terminates, I conclude that such "construction" would effectively require me to rewrite decedent's Will. This would involve "far more than . . . the correction of an obvious error, or the clarification of an ambiguity" (Matter of Shehan, 157 Misc 2d 904, 911 [1993]), and, as such, it would be impermissible.

However, the Trustees' proposed construction of the class of nephews, nieces, grandnephews and grandnieces as being comprised of those in being as of (or conceived prior to) decedent's date of death does not violate the Rule. Restricting the class of possible trust beneficiaries in that manner would mean that the trust would terminate, and any ultimate takers would receive any remaining trust assets, well within the permissible "lives in being, plus 21 years" required under the Rule. There is nothing in the trust provisions of decedent's Will which would militate against that construction; and, much more significantly, absent such a construction, decedent's intent to provide educational benefits to her family would never be realized.

Accordingly, the Trustees' motion for partial summary judgment is granted, and the classes of "nephews, nieces, grandnephews and grandnieces" in the Will are construed to mean and be limited to those class members who were living or had been conceived as of March 16, 1999, decedent's date of death.

The construction issue having now been resolved, there remain for resolution all the other isssues raised by the Trustees in their petition. In that regard, I hereby set this matter down for a status and scheduling appearance before me on Wednesday, July 17, 2024, at 9:30 a.m.

Finally, I direct that, on or before July 12, 2024, the guardians ad litem shall each efile and serve on all other counsel their fee request(s) to date. Those fee applications will then be taken up by me on the July 17, 2024 status appearance date.

This decision shall constitute the Order and of this Court, and no other or further order shall be required.