Matter of D'Elia

[*1] Matter of D'Elia 2005 NY Slip Op 51700(U) [9 Misc 3d 1120(A)] Decided on August 22, 2005 Surrogate's Court, Kings County Tomei, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 22, 2005
Surrogate's Court, Kings County

In the Matter of the application of REGINA D'ELIA for a Stay of Eviction Proceedings in Civil Court, Kings County under the Last Will and Testament of Joseph D'Elia



2836/2004



Attorney for Daughter-Petitioner

Theodore C. Richman, Esq.

Solomon Richman Greenberg P.C.

3000 Marcus Avenue

Lake Success, NY 11042

Attorney for Wife - Life Estate - Respondent

Joshua Deutsch, Esq.

Deutsch & Schneider, LLP

79-37 Myrtle Avenue

Glendale, NY 11385

Albert Tomei, J.

Petitioner, Regina D'Elia, decedent's daughter, seeks to stay the eviction proceeding pending against her and to have the court establish the rights in a life estate left to respondent, Lucille D'Elia, decedent's wife, by virtue of a Last Will and Testament of the decedent dated April 10, 2000.

The decedent died on June 4, 2004, and, at the time of his death, was the sole owner of a two-family premises located at 2210 E. 57th Street, Brooklyn, New York (hereinafter "the premises"). The decedent and his wife lived in the premises for approximately twenty-two [*2](22) years. Decedent had three children from a prior marriage, one of whom is the petitioner herein, Regina D'Elia. She lived in the premises for approximately forty- four (44) years and in the downstairs first floor apartment for approximately twenty- three (23) years prior to her father's death, paying a monthly rent of $350.00.

Subsequent to being issued letters testamentary on August 10, 2004, Lucille D'Elia commenced an eviction proceeding to have decedent's daughter, who is a legatee and remainderman of decedent's will, evicted from the downstairs apartment.

Decedent's Last Will and Testament, dated April 10, 2000, in Paragraph SECOND, provides:

"I grant a life estate in the real property which I occupy as my primary residence at my death, currently this

property is 2210 East 57th Place, Brooklyn, NY 11234,

to my wife LUCILLE D'ELIA, if she survives me. My wife

LUCILLE D'ELIA shall have and hold the home for and

during her lifetime, without the necessity of paying rent or

furnishing bond or other security therefor. LUCILLE

D'ELIA, during her occupancy shall pay all real property

or similar taxes (not estate or inheritance taxes),

assessments, carrying charges, including fire and

extended coverage insurance premiums on the buildings

and fixtures at the full insurable value thereof and normal

costs of maintenance and repair in respect thereof. My

wife shall not be liable for waste and shall no duty to

account to the remaindermen."

If my wife should remarry, fail to maintain said real

property as her permanent place of residence, or for

any reason whatsoever, at any time, chooses to

relinquish her life estate, then said real property is to

be sold for the highest obtainable price and the proceeds

of said sale is to be distributed one-third (1/3) to my wife

and two-thirds (2/3) to my then living children equally.

In the event my wife should predecease me, I give said

real property to my then living children in equal shares as

tenants in common.

In the event any of my children should predecease me it

is my intention that the share that child would have taken

be distributed among my remaining surviving children." [*3]

At issue is whether decedent's Last Will and Testament demonstrated an intent to restrict the life estate granted to Lucille D'Elia to that portion of the premises which the decedent occupied at his primary residence at the time of his death, or whether decedent intended Lucille D'Elia to have a life estate in the entire premises.

Respondent contends that decedent's intent was expressly stated in the will whereby a life estate was granted in the premises where there is no indication or restrictions in the will that such life estate is limited to one apartment. She maintains that the testator owned the entire two-family house and not just one apartment.

This court disagrees.

If the testator owned, for example, five properties and stated that he gives his wife a life estate in the real property that he occupies as his primary residence, then the respondent would be correct in asserting that the life estate the testator gave was for the entire property because the description of the property that he occupies at the time of his death described which of the five properties he wanted to give to his wife as a life estate. However, if, as in the case herein, the decedent owned only one premises, then the description of the property that he occupies at the time of his death is superfluous if the meaning to be given to that phrase referred to the entire house. If that was the decedent's intent, the decedent would have stated, "I give the property that I own at the time of my death as a life estate to my wife." By adding the phrase, "the property that I occupy at the time of death," it clarifies that what the decedent intended related to the unit that he occupied in the premises and not the entire premises.

Respondent points to the fact that decedent allowed his wife to sell the entire premises at any time and for any reason and to receive a third of the proceeds in exchange for her life estate to stand for the proposition that the wife had a life estate in the entire premises. This court fails to see that inference, but rather an inference could also be made to allow that decedent valued the life estate of one apartment as equivalent to one-third of the house.

It is well established that the court's duty in a construction proceeding is to ascertain the intention of the testator, (Matter of Horton's Will, 40 Misc 2d 553). The primary consideration should be the decedent's written intent with the best evidence found in the words used in the will.

It is also well settled that the testator's intent is gleaned "not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed, (In re Fabbri, 2 NY2d 236). The cases involving a problem of construction illustrate "Judge Learned Hand's wise and trenchant observation that courts should be wary of making 'a fortress out of the dictionary', since there 'is no more likely way to misapprehend the meaning of language * * * than to read the words literally, forgetting the object which the document as a whole' seeks to achieve, (Ibid.).

It is the court's endeavor to discern and effectuate the intention and purposes of the testatrix, (Matter of Bieley, 91 NY2d 520). It was clearly decedent's intention to provide his wife with the right to live in the upstairs unit they shared in the marital abode. There were specific directions for which the life estate could be defeated such as the failure to maintain the premises as her permanent place of residence, upon remarriage or for any reason whatsoever is she chooses to relinquish her life estate. In those instances, the proceeds of the sale would be divided between the wife having a one third share and decedent's children having a two- thirds [*4]share. Decedent's will provided that the respondent should not pay any rent as opposed to his daughter who paid a monthly rent. Decedent intended the respondent to use and possess the premises for her enjoyment during her lifetime. The provisions in decedent's will do not permit the respondent to sell the entire premises and use the proceeds to purchase another premises. In that event the proceeds were to be divided with the respondent receiving her one third share of the proceeds to move to another abode.

Accordingly, this court declares that the life estate contained in the Last Will and Testament of Joseph D'Elia for Lucille D'Elia is restricted to the portion of the residence that the decedent resided in at the time of his death; the upstairs apartment.

The owner of a life estate may lease the premises, collect rents or sell its estate and may bring a summary proceeding pursuant to RPAPL §721(1), (6) or (7), Maida v Maida, 8/14/96, NYLJ, 25 (col 1); Warren's Weed, NY Real Property, 4th Edition §3.04). However, the motion to lift the stay allowing the respondent to proceed with the eviction action is rendered moot as this court has determined that respondent does not have a life estate in the downstairs apartment.

This constitutes the decision and order of the court.

HON. ALBERT TOMEI

Acting Surrogate

Dated:Brooklyn, New York

August, 2005.