Matter of Lewis
Annotate this CaseDecided on September 26, 2005
Surrogate's Court, Nassau County
Application of Cathy Thompson as Co-Administrator, c.t.a. of the Estate of ANNA L. LEWIS a/k/a ANNA LEWIS, Deceased.
273459
Anthony Thomas Scotto, Esq. (for petitioner)
585 Stewart Avenue
Garden City, NY 11530
Robert A. Brady, Esq. (for respondent)
31 South Bayles Avenue
Port Washington, NY 11050
John B. Riordan, J.
In this estate the decedent Anna L.Lewis was survived by three children, Cathy, Donna and Donald. The decedent's death occurred on July 3, 1991. Letters testamentary were initially issued to the named executrix and upon her death, letters of administration c.t.a. were issued to the two daughters, Cathy and Donna. Essentially, the dispute between the parties is over the decedent's former home located in Westbury, New York, the primary asset of the estate.
Of the three children, Donna is the only one presently occupying the decedent's former home. Initially, Cathy commenced a discovery proceeding (SCPA 2103) seeking to recover possession of the residence from Donna or in the alternative for a sale of the residence, and an equal division of the proceeds among the three children. The petition also sought the recovery of the decedent's piano which was specifically bequeathed to Cathy.
In the related Estate of Donald Lewis (File No. 324077) (the former husband of this decedent), the court, after designating an attorney to investigate the matter, concluded that the son, Donald, was incapacitated and consequently appointed a guardian ad litem to represent him in that related estate. Similarly, following a conference in this matter, a supplemental citation was issued following which a guardian ad litem was appointed for Donald. In addition, as a result of a further conference, a discussion was held that a construction of the Will rather than a discovery proceeding was required, and memoranda of law pursuant to that discussion have been filed.
In the opinion of the court, such a construction is required and may be had in this proceeding. Pursuant to SCPA 202, the court is empowered in any proceeding to exercise any of the jurisdiction granted to it, notwithstanding the jurisdiction sought to be exercised in the proceeding is or may be exercised in a different proceeding.
The decedent's Will consists of a blank form of Will in which she has inserted type-written clauses. It does not appear that she was assisted by an attorney. The Will primarily concerns the disposition of her home in Westbury, New York. The essential provisions are contained in paragraphs Third through Seventh as follows:
"Third.I give and devise all of my Real Estate, including my house,
located at 236 Hopper Street, Westbury, New York, Long Island, to my son,
Donald Marcus Lewis and my two daughters, Cathy Estella Lewis Thompson
and Donna Maryann Lewis Wallace, to share equally among the three of them. [*2] Fourth. That the house shall be occuppied (sic) by Donald or, all or, either of the three of them, and shall not be sold until the death of Donald, or unless the three decide or agree to sell the house.
Fifth. Donald shall pay the expences (sic) and maintenance as long as
he occupies the premises.
Sixth.That, if at any time Donald neglects said property,
Cathy and Donna may sell property and give him his equal share.
Seventh.That upon the death of Donald the house shall belong to
the survivor or survivors of the three named heirs to dispose of as they desire."
In her petition, Cathy alleges that her mother primarily intended Donald to enjoy the benefit of her home but that Donald was forced from the decedent's home by Donna who has taken exclusive control of the home to the exclusion of her siblings, which Cathy alleges is contrary to the decedent's expressed intent. Donna, however, denies those allegations, and contends that she has a legal right to occupy the home and is excluding no one from residing at the premises.
While Donna denies that she has excluded either her brother or her sister from the premises, in the related Estate of Donald Lewis, Donna's father, she alerted the court to her brother's situation. Since the records of the court itself are always before it, it may take judicial notice of them (Matter of Doran, 96 Misc 2d 846). In her letter Donna states: "Just so you fully understand his situation, my brother had always had a problem with illegal drugs. He was living with my children and me for four years at my current address. However, in 1996 when I became a sales person for a pharmaceutical company, he could not continue to live with us because of the presence of my employer's drug line in my home. At this time, my father was living alone and he suggested that my brother come live with him, which he did."
Accordingly, whether Donna forcibly ousted Donald from the premises or not, the fact remains that neither he nor Cathy obtain any benefit whatsoever from the residence occupied solely by Donna since 1996. According to the guardian ad litem, the only income Donald receives is SSI amounting to approximately $694.00 per month, at least in 2003. Members of the family have informed him that Donald is being treated as a manic depressive with medication. Following his departure from the decedent's home, he apparently had been living in premises owned by his aunt.
The cardinal rule of construction of a Will is to carry out the intent of the testator. All rules of interpretation are subordinated to the requirement that the actual purpose of the testatrix is sought and effectuated as far as is consonant with principles of law and public policy (Matter of Fabbri, 2 NY2d 236 [1957]). In addition, intent is not to be gleaned by focusing upon any one particular word, sentence, or provision; rather, it must be ascertained from a perusal of the entire Will by a reader mindful of the particular facts and circumstances under which the provisions of [*3]the instrument were framed (Matter of Guide, 302 AD2d 387 [2003]).
If the court, upon reading the Will in this setting, discerns a dominant purpose or plan of distribution, the individual parts of the Will must be read in relation to that purpose and given effect accordingly. This is true despite the fact that a literal reading of the portion under construction might yield an inconsistent or contradictory meaning (Matter of Fabbri, 2 NY2d 236 [1957]).
Here, the decedent's intent seems to have been to provide a home for Donald to reside in if that was feasible; if it was not, the property was to be sold and the proceeds divided equally among the three children. In paragraph Third she clearly devised the home to her three children in equal shares, while paragraph Fourth speaks of it being occupied by Donald, or all, or either of them. Paragraphs Fifth, Sixth and Seventh are provisions concerning Donald's anticipated occupation of the premises and its disposition following his death.
There appears to be no question that the decedent was intent upon providing some form of shelter for her son Donald. That purpose appears to have been frustrated and since Donald has no financial means to maintain the home, his occupancy of the premises is, practically, impossible. In addition, paragraph Seventh provides that upon the death of Donald the home descends to the survivor or survivors which, of course, would mean Cathy, Donna or both of them. This is certainly a result inconsistent with paragraph Third which gives him an outright one-third share of the home. Furthermore, as pointed out in the petitioner's memorandum, no provision is made if Donald survives both of his sisters. The only purpose of the decedent remaining which can realistically be achieved is the devise to all three of them equally and an immediate sale so that they may receive their individual shares. Moreover, this result is consistent with the rule that if a Will is susceptible of two constructions, one of which will tend to produce inequality in the distribution of the estate between children of the testatrix, and the other will tend to produce equality, the latter construction is favored (Matter of Harden, 177 AD 831 [1917]).
Regarding the piano, since that was specifically bequested to Cathy, she is entitled to it.
Accordingly, the Will is construed as above determined and a sale directed with the net proceeds to be equally divided among the three children. Counsel are directed to appear for conference on Wednesday, October 5, 2005 at 9:30 a.m. to agree on the arrangements for the sale of the premises and delivery of the piano to petitioner.
This is the decision and order of the court.
Dated: September , 2005
JOHN B. RIORDAN
Judge of the
Surrogate's Court
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