| Matter of White |
| 2009 NY Slip Op 06698 [65 AD3d 1255] |
| September 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Thomas V. White, Also Known asThomas Vincent White, Also Known as Thomas White, Deceased. Stephanie White,Respondent; Richard M. White, Appellant. |
—[*1] Lawrence R. Lonergan, New York, N.Y., for respondent. Lainie R. Fastman, Staten Island, N.Y., guardian ad litem for Deanna White.
In a will construction proceeding, Richard White, the executor and trustee of the estate of thedecedent, Thomas V. White, appeals, as limited by his brief, from so much of an order of theSurrogate's Court, Richmond County (Fusco, S.), dated December 11, 2007, as denied his crossmotion for summary judgment construing paragraphs fourth and fifth of the decedent's last willand testament, inter alia, to authorize the sale of certain real property by the trustee and conferupon the trustee absolute discretion with respect to the distribution of the proceeds from the saleof the property.
Ordered that the order is affirmed insofar as appealed from, with costs.
Thomas White died on August 9, 2002. He was survived by his wife Stephanie White andthree children from a prior marriage, one of whom remains a minor. The decedent named hiswife as the guardian of the minor child, and his brother Richard White as his executor andtrustee.
Pursuant to paragraph fourth (D) of his last will and testament, the decedent funded a creditshelter trust (hereinafter the trust) for the benefit of his wife and three children with a house heowned in Normandy Beach, New Jersey (hereinafter the beach house), a house he owned inStaten Island, New York (hereinafter the Staten Island house), and more than $500,000 in cash.
Paragraph fifth (A) provides that the trustee is authorized to "hold, manage, invest andreinvest the [trust] principal," and to "invade and distribute the [trust] principal." That sectionalso provides that the trustee generally has "sole and absolute discretion" with respect to trustmanagement, including the disbursement of funds to the wife and three children (who are theonly beneficiaries of the trust).
Lastly, paragraph fifth (D) states in relevant part:[*2]"Uponall or the survivor(s) of my children reaching or being 25 years of age, the Trust terminates, and Igive, devise and bequeath my houses in Staten Island, New York and Normandy Beach, NewJersey to [the wife], and my [three] children . . . in equal shares, share and sharealike; I give, devise and bequeath all income accrued or undistributed in the . . .Trust, and . . . any remaining principal of the . . . Trust, to my [three]children . . . in equal shares, share and share alike." Accordingly, paragraph fifth(D) appears to reflect that while the wife is entitled to a share of real property when the trustterminates, she is not entitled to a share of the remaining trust principal.
In 2006 the trustee sold the beach house over the wife's vehement objection. The wife thencommenced this will construction proceeding, contending that paragraphs fourth and fifthprohibited the sale of the beach house and mandated immediate disbursement of the saleproceeds to all four beneficiaries, in equal shares. The trustee took the contrary view that he wasauthorized to sell the beach house and is entitled to keep the sale proceeds in the trust until theyoungest child turns 25 (at which point all trust principal would be distributed to only the threechildren).
The wife and the trustee filed motions for summary judgment construing the disputed willprovisions in their favor; the guardian ad litem for the minor child, who sided with the trustee,also filed a cross motion seeking summary judgment. The Surrogate's Court denied all threemotions, finding that issues of fact precluded summary judgment. The trustee appeals.
The primary purpose of a will construction proceeding is to ascertain and give effect to thetestator's intent (see Matter of Bieley, 91 NY2d 520, 525 [1998]; Matter of Herz,85 NY2d 715, 719-720 [1995]; Matter of Carmer, 71 NY2d 781, 785 [1988]; Matterof Fabbri, 2 NY2d 236, 239 [1957]; Matter of Brignole, 32 AD3d 538 [2006]). "This intent. . . must be gleaned not from a single word or phrase but from a sympatheticreading of the will as an entirety and in view of all the facts and circumstances under which theprovisions of the will were framed" (Matter of Fabbri, 2 NY2d at 240). If a reading ofthe entire will reveals a dominant purpose or plan of distribution, the provisions at issue must beinterpreted in light of that purpose (see Matter of Carmer, 71 NY2d at 785-786). If,however, a will provision remains ambiguous, extrinsic evidence may be considered indiscerning the testator's intent (seeMatter of Piel, 10 NY3d 163, 166 [2008]; Matter of McCabe, 269 AD2d 727,729 [2000]).
Here, paragraphs fourth and fifth are inconsistent. On the one hand, although the trustcontains no positive language authorizing the sale of real property, the decedent conferredabsolute discretion upon the trustee with respect to invasion of the trust principal. On the otherhand, the decedent specifically bequeathed the beach and the Staten Island houses to the wifeand three children upon the trust's termination, with no language indicating that the bequest wasconditioned upon the house not being sold during the trust's duration. A review of the entire willdoes not disclose any dominant purpose dispositive of this issue.
Moreover, attorney draftsman Paul Forster's deposition testimony does not resolve thisconflict. Forster testified that the decedent was well aware that both the beach house and theStaten Island house could be sold by the trustee before the minor child turned 25, and that as aresult, the wife would have no remainder interest when the trust terminated. Although he statedthat his notes reflect the decedent's understanding, this claim is not supported by the record; ifanything, the notes support the wife's contention that the decedent made an unconditionalbequest. Additionally, Forster testified that the decedent gave the wife a $700,000 legacy,reflected in paragraph third of the will, and that he did so because the wife had agreed to usethose funds to pay off a $300,000 mortgage on the Staten Island house in exchange for aninterest in the trust remainder. Accordingly, if Forster's testimony is credited, it seems unlikelythat the decedent intended to leave the wife's interest in that remainder unprotected.
In light of these factual issues, a hearing is necessary to determine the decedent's intent withrespect to power of sale (see Williams vWilliams, 36 AD3d 693, 695 [2007]; Matter of McCabe, 269 AD2d at728-729). Moreover, until that determination is made, there is no basis for assessing whether thetrustee [*3]is authorized to keep the sale proceeds from the beachhouse in the trust. Accordingly, the trustee failed to make a prima facie showing of entitlement tojudgment as a matter of law, and thus the Surrogate's Court properly denied his cross motion forsummary judgment (see Smalls v AJIIndus., Inc., 10 NY3d 733, 735 [2008]; Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]).
The trustee's remaining contentions are without merit. Rivera, J.P., Skelos, Balkin andLeventhal, JJ., concur.