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Son Petitioner Brings Action for Will Construction Issue – Sparacio’s Estate, Matter of, 402 N.Y.S.2d 857 (N.Y. App. Div., 1978)


In this case the Supreme Court considered whether a decedent’s intention was to make a testamentary gift or if the language was actually precatory. If the language was precatory, it is optional, and the executors are not required to enforce it. On the other hand, if the language was mandatory, then the executors are required to enforce it.

Sparacio, a well-known attorney and professor of law, died on June 5, 1973. He left a handwritten will dated April 22, 1970. In it he named all three of his adult children as executors of his will and as residuary legatees. While the will was a handwritten one, it was not a holographic will. A holographic will is one that is handwritten and signed by the testator, but not witnessed. Sparacio dictated the will to one of his daughters who wrote it out in longhand. His other daughter was present.

In the will he left his daughter M. Sparacio his house and its decorative contents. The will also stated that it is his “wish and desire” that the other daughter, E. Maroshick, share in the contents of the house. Because the language as to how the contents of the house was to be distributed was unclear and the daughters were not able to settle the matter amicably, the decedent’s son petitioned the Surrogate’s Court for a construction. The Surrogate’s Court ordered the parties to submit a list of the “decorative contents” and for them to figure out a way to divide the property. The court further ordered that if they could not agree, then it would appoint a referee to supervise the division of the property. M. Sparacio appealed the Surrogate’s Court decision.

In her appeal, E. Maroshick argues that it was their father’s clear intention to give her certain items that were in the house. M. Sparacio responded by asserting that their father’s language about E. Maroshick receiving some of the contents of the house was not mandatory but precatory. Further, the language was too vague for the court to effectuate. In addition, there was no evidence as to which items E. Maroshick wanted nor did she ever make a demand for specific property.

The court gave a great deal of weight to the fact that the decedent was a respected lawyer and law professor. He was well-known for the bar review course that he taught and was a respected practitioner. The decedent understood the law related to wills, estates, and Surrogate’s practice. Thus, he was familiar with precatory language and how to make language mandatory. The decedent made a conscious decision to use the terms “wish and desire” with respect to E. Maroshick getting some of the contents of the house. The court noted that the decedent was very clear in his wishes in other parts of the will. For example, in another part of the will, the decedent stated, “I also give, devise and bequeath * * * to my friend, [E. Maroshick], the sum of five thousand ($5,000.00) dollars”. Thus, if the decedent had really wanted to leave her any of the decorative contents in the house, he would have said so in unequivocal language. As a result, the court concluded that the language related to leaving E. Maroshick contents of the house is merely precatory.

Accordingly, the court reversed the decision of the Surrogate’s Court and issued an order that the language in the will at issue was construed to be precatory and not binding on the executors.

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