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In re: The application of Giovanna BAJIC and Angela Franke for Construction of a will for Marianna Bonanno, Deceased.


Surrogate Court, Queens City, NY

February 2, 2016

Decedent passed away on August 29, 2002, and is survived by 4 children. Her 2 daughters are the petitioners, and one of her sons is the objectant. The other son is the executor of the estate.

The will is dated August 1, 1983, and was submitted into probate 10/24/02.

The clause in question reads: “I devise my house at 65-26 Myrtle Ave., Glendale, the City of New York to my children to share and share alike. However, I direct that the dwelling and premises not be sold at the time where any one of them is single, and not when any of them resides at the property. I wish that the property is retained as a home in the event that any of my children are single, they can use it as a place of residence. The single child is only to receive income from the property and pay all of the expenses to maintain the property. At the end of the year, any surplus is to be divided 4 ways.

When all of the children are married or leave and live elsewhere, then the property be sold for the best available price.”

When the will was created all of the children were single. At the time of the mother’s death, 2 of the children weren’t living there. The children married and left, but once child’s continued presence there is the subject of this lawsuit.

Petitioners argue that the 2nd through the 4th paragraph of the will should be invalid, arguing that the language violates the common law rule of prohibiting unreasonable restraints in the alienation of real property. It improperly imposes a limitation on the Petitioner’s free simple interests, and it imposes conditions designed to discourage marriage, and the provisions are ambiguous and vague.

The Objectioner argues that these arguments are without merit and that the provisions of the will stating the executing statutory powers and isn’t contradictory.

The court says that interpreting the will with the intention of the testator must be the court’s guide (Matter of Biely, 91 NY2d 520, 525; Williams v. Jones 166 NY 522, 523. That interpretation is to be done by reading the entire will (Matter of Carmer 71 NY2d 781, Matter of Fabbri 2 NY2d 236, 240, Matter of Biely, supra).

All rules are subordinate to the requirement that the action and purpose of the testator be sought and effectuated.

Petitioner’s arguments are essential that on the 1st paragraph of the third article, it devises a fee simple and absolute interest in the real property to each of the decedent’s children and therefore, the provisions continued in the second through the fourth paragraph are repugnant to the nature of their fee simple absolute interests.

It has been held that where a will contains an absolute gift followed by words which disclose an intention to cut it down, the court favors giving effect to the absolute gift (Matter of Parant 38 Misc. 2d 933, citing the Matter of Hayes, 263 NY 219 and Clarke v. Leupp 88 NY 228). On the other hand, an absolute gift will be disturbed where the testator’s intention to so is clear (Tillman v. Orgen 227 NY 495, Mee v. Gordon 187 NY 400)

Here, the terms used show that the decedent intended to limit the gift, directing it to be sold while unmarried children were living there, and when it was sold the profits would be divided equally (Matter of Ithaca Trust Co., 220 NY 437, Matter of Dillon 200 Misc. 147.

The language of the will is clear enough to limit the estate and see what the decedent’s estate was.

Although a condition of a will is calculated to induce a beneficiary to living in celibacy (Matter of Leiherman 279 NY 458) there is no merit to the argument that the language of the will imposes conditions contrary to public policy.

The language of the will makes it clear that the decedent wanted to provide a place for her children and the ability to sell the property, married or single, and eventually to have the property divided 4 ways.

While a will that forces someone to live in celibacy or divorce is void, (Matter of Lieherman 279 NY 458; Matter of Haight 51 App. Div. 310). There is no merit to the argument that this is the case here.

It is clear that the intention here is to assist unmarried children and know that the property would eventually be sold.

There is a rule of construction that states where clauses of a will are inconsistent and can’t be reconciled to stand together, the latter clause will be considered as indicating a subsequent intention and prevail over the earlier one, unless the general idea of the will leads to a contrary construction (Van Nostrand v Moore 52 NY 12, 20; Matter of Fuchs 212 AD2d 612).

The court will only resort to this at last resort, and will not apply the rule where the will is clear and unambiguous. Hence the clear terms of the will lead to a clear conclusion that the 5th article was not intended to limit the 3d article.

Motion denied.

Probate matters can be emotional and complex. It is important to speak with a qualified probate lawyer from the law offices of Stephen Bilkis and Associates. Contact us for a free consultation at 1-800-NYNYLAW. We have locations to serve you in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County.

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