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Court Deals with Conflicting Interpretation of a Will


A Probate Court said records reflect that this construction proceeding raises questions in respect of the validity of a trust under decedent’s will and the distribution of its remainder. The decedent died survived by his widow and six children. The will was admitted to probate and Letters testamentary and letters of trusteeship were duly issued. Complainants are the issue of the testator’s son. They urge that the trust created under paragraph ‘Fourth’ unlawfully suspends the power of alienation and hence that the principal thereof must be distributed as in intestacy; or, alternatively, that the language of the will should be construed so as to include their father, and his issue, as remaindermen entitled to a share of the principal of the trust upon its termination. They allege that the trustee of the trust under the will of their father has refused to bring the proceeding after demand. The answer interposed by the surviving executor and trustee denies the allegations of the petition, sets forth several defenses thereto including among others that complainants are not proper parties in interest, that the will provision does not require construction and that by reason of article ‘Seventh’ of the will constituting an ‘in terrorem’ provision, they have no status in these proceedings.

A New York Estate Lawyer said the court noted from the first paragraph of article ‘Fourth’ that the use of the words by testator of ‘my children’, naming them specifically clearly showed that he did not want the complainants’ father to have any interest in the estate. Similarly, although the contingencies expressed therein did not take place, the immediately following two paragraphs of article ‘Fourth’ again confirmed this intent by referring to the children ‘hereinbefore mentioned’ and by repeating the words my ‘said children’, ‘said child’ and ‘issue of said child’. Article ‘Second’ of the will recites that no provision is made for testator’s son, nor his wife, nor any other member ‘of his family’ by reason of the fact that testator in his lifetime entered into an agreement with his son, giving him and agreeing to give him a substantial sum of money ‘which sum he is presently receiving and will receive under said agreement and therefore no provision whatsoever is made for him in this Will in any way with respect to any trust fund hereinafter established.’

Manhattan Probate Lawyer said the status of complainants as proper parties in interest to bring this proceeding and to seek a construction of the will was determined by this Court and such determination is adhered to. With respect to the ‘in terrorem’ provision of article ‘Seventh’, the Court holds that it is not applicable to a distributee who seeks a construction of any of its provisions. Decedent’s widow, upon whose life the primary trust is measured, died on October 15, 1955. One of the sons, whose life measures the secondary term, is living. Decedent’s grandchild, during whose minority a further term was to be measured, attained her majority on May 1, 1959. Were the said son to have died during the secondary term of the trust and prior to grandchild’s attainment of her majority, the continuation of the trust during the minority of the grandchild would have been an unlawful suspension of alienation. What then is the effect of such possible unlawful suspension in the circumstance that the grandchild has attained her majority.

A New York City Probate Lawyer said the dominant and underlying principle expressed in cases applying well-recognized rules of construction is the effectuation, so far as possible within the permissible limits of the statute, of the intention of the testator. Provisions creating illegality will be ignored and the other provisions of a will preserved. Judicial surgery will be applied where the effect of the excision is to preserve the vital plan of the will. If the remainder of a trust, tainted by illegal suspension for more than two lives, is vested, we go forward with the testator for two determinable lives and eliminate what lies beyond; the limitation for the permissible period will be sustained and that which lies beyond will be excised.

Complainants urge that the trust must fall and the corpus thereof be distributed as in intestacy because of the testator’s failure effectually to direct a distribution of its remainder. Their contention is predicated upon the argument that the word ‘divide’, used by testator in the first sentence of the paragraph relating to the distribution of the remainder, is inadequate to effect distribution. It is axiomatic that the testator’s intent is to be discerned and accomplished if legally feasible. Literal interpretation and strict construction in conflict with an intended result, however imperfectly expressed, must be cast aside. The intention of the testator, discernible from parallel provisions of the will or the testamentary scheme as a whole, will not be defeated by imperfect expression and inept language.

In the second and third sentence of article ‘Fourth’ of the will, testator directs that the issue of a predeceased child or the surviving children of the testator are to take the share that a predeceased child would have received had he survived. The alternative distribution among the issue of a predeceased child or the other surviving children of the testator of a share that such predeceased child would have received had he survived inescapably leads to the conclusion that the word ‘divide’ as used in the earlier sentence of the paragraph intends apportionment and distribution to such child had he survived. Furthermore, the remainder vests pursuant to the rule of gift by implication, which is that if property or estate, claimed to be devised or bequeathed by implication in a contingency which has occurred, has been made the subject of an express bequest or devise in another contingency which did not occur, then effect may be given to such bequest or devise in the contingency which did occur. The express words of distribution in the event of a contingency which did not occur, to wit, prior death of one of the decedent’s children, compels the distribution among the testator’s surviving children described in article ‘Fourth’ in the contingency which did occur, to wit, the survivorship of such decedent’s children.

Since the remainder of the trust is vested, the term which would have been measured by Marsha’s minority may be ignored as academic or excised as superfluous. The contention that the annuity payments affect the validity of the trust is rejected. Alternatively, complainants urge that they are within the class of remaindermen entitled to share in the distribution of the corpus of the trust upon its termination. This contention is based upon the claim that the corpus of the trust at its termination is to be divided among such of decedent’s children as survive him. The trustees under decedent’s will oppose on the ground that the word ‘children’ does not include their father, because of article ‘Second’ of the decedent’s will previously discussed.

The language of article ‘Second’ effectively eliminates their father, his widow, and complainants, as surviving issue of their father, from participating in the distribution of the remainder of the trust under paragraph ‘Fourth’. The accomplishment of any other result would destroy testator’s dominant plan of distribution which is so obviously discernible. Accordingly, the only persons entitled to share in the remainder of the trust upon its termination at the death are those children of testator who survived the testator, other than complainants’ father. The will is construed accordingly.

Will contest, Estate administration, or Estate litigation, are some of the many kinds of actions that may be instituted against the estate of the decedent by those whose interest therein may be affected. In such cases, Stephen Bilkis & Associates, with offices throughout New York, has its Kings County Estate Lawyers, and its New York Probate Attorneys, who handle such situations expertly.

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