Matter of Mankowski

[*1] Matter of Mankowski 2006 NY Slip Op 50162(U) [10 Misc 3d 1080(A)] Decided on February 4, 2006 Sur Ct, Warren County Hall, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 4, 2006
Sur Ct, Warren County

In the Matter of the Estate of the Accounting of Charles M. Tomaselli, as Successor Trustee of the Trusts Created under the Last Will and Testament of Lena Mankowski, Deceased.



12,814

John S. Hall, J.

"In the case of a will, the voice of the man who made it is stilled, the hand that signed and sealed it is powerless and dead, and it is one of the greatest of many responsibilities placed upon the courts to see to it that this silent evidence of his desire with regard to his property and estate should be made effective and should be carried out "according to his intention", undisturbed by the clamor of conflicting litigants." Snyder v Snyder 182 AD 65

The above named decedent died on April 18, 1949. The decedent's will was admitted to probate on May 14, 1949 and letters of Trusteeship were issued on July 6, 1949. Following the death of the decedent's last surviving granddaughter, who died without issue on March 31, 2003, Judge John Austin, Warren County Surrogate Court ordered that the corpuses of the two trusts created under said decedent's Will were to revert to the Comptroller of the State of New York by escheat. By Memorandum and Order dated April 8, 2004, the Appellate Division Third Department reversed this court's order and remitted the matter to this court for further proceedings not inconsistent with the Court's decision.

On April 21, 2004, John C. Mannix, Jr. was appointed guardian ad litem to protect the interests of unknown or undetermined heirs of Lena Mankowski . In October, 2004, Attorney Mannix was directed to engage a genealogical investigation service to determine whether there are any living issue of the decedent. On October 15, 2004 Attorney Mannix reported that the genealogical search failed to reveal any living issue. However, there remained a possibility that descendants of Lena Mankowski were still living. On March 10, 2005, Attorney Mannix submitted another report suggesting that the trustee submit a petition under SCPA 2225, and that the court issue citation to all "unknown heirs". On June 10, 2005, that petition was filed by Trustee Charles Tomaselli, (hereinafter "Petitioner") which requested inter alia, Summary Judgment construing the will in favor of the Estate of Bettina Jennings and Barbara Schutt. Citations were issued and duly published. No one appeared on the return date on behalf of the unknown heirs. On September 2, 2005, the Attorney General's Office filed a verified answer with objections, along with a motion for partial summary judgment and memorandum of law. Opposition papers were filed by the Petitioner on September 29, 2005, along with his own motion for summary judgement and supporting [*2]memorandum of law. The Attorney General filed opposition papers to Petitioner's motion for summary judgment on September 29, 2005. Petitioner filed a reply memorandum of law on October 14, 2005. The guardian ad litem, filed a letter report dated October 12, 2005.

More than three years have passed since the death of decedent's last surviving granddaughter, Bettina Jennings. All the parties acknowledge, and the evidence before the court confirms, that diligent and exhaustive efforts have been made after reviews of all available sources to ascertain the existence of the testatrix's issue. Proper citation has been issued. No appearances have been made by any person claiming to be issue, other than those stated in the record. In accordance with SCPA §2225, the court presumes that no such persons exist.

The Appellate Division Third Department's directed this court by its decision of April 8, 2004, to attempt to "identify who, if anyone", constitutes Lena Mankowski's "issue then living" and to appoint a guardian ad litem to represent unknown and unidentified issue. This has been accomplished. The Appellate Division also directed that a kinship hearing be held to identify unknown issue. However, this court construes the directive to be similar to a remand by an appellate court for a new trial. Such directives necessarily allow exceptions for events such as settlements, stipulations, defaults or disposition by summary judgment motions. Since all parties agree that a kinship hearing would constitute a futile effort, the court will circumvent that step to undertake a will construction of the decedent's will as directed by the Appellate Division.

WILL CONSTRUCTION

The testatrix's will discloses a general intention to place the remainder of her estate in trust to be paid ultimately to the issue of her last surviving grandchild, upon such grandchild's death. If the last surviving grandchild died without issue, the trust was to be distributed to the testatrix's issue, then living, in equal shares. The Attorney General, citing In re Villalonga, 6 NY2d 477 and In re Clark 280 NY 155, maintains that a will Construction proceeding is not necessary because the will is clear and unambiguous in its direction and benefit.

The Attorney General argues that the trust remainders pass to the State by escheat bona vacantia by three operations or stages. Since the will clearly distributes the trust to "my issue then living" and since no such persons exist, the corpus first should devolve to the testatrix's distributees. Then, invoking the doctrine of futurity, distributees should be determined as of the termination of the trusts in 1998. Third, because the testatrix had no distributees as of that date, the trust remainders pass to the State. However, this position contradicts the specific directions of the Appellate Division which held that if this court determined that there were no issue then living "then the court must construe the will to determine who is entitled to the trust corpuses," ( In re Estate of Jennings, 6 AD3d 867, 869 [3rd Dept. 2004]).

The Law Guardian disagreed with the Attorney General. He maintained that the testatrix created a "reversion" in herself under EPTL 6-4.4 because there were no issue of the beneficiaries alive to take at the time the will was executed. The Court does not agree. Both positions would result in the distribution of the trust through the laws of intestacy, a result the testatrix clearly did not intend and one refuted by her act of executing a will. (See, Matter of Bellows, 103 A.D. 2nd 594 [2nd Dept, 1984]).

Article Fourth Trusts

Article Fourth establishes two trusts, one providing income for the testatrix's daughter, the other for her grandchildren. The Article Fourth (a) trust provides that upon the death of the daughter, income trusts be established for the decedent's grandchildren. The last paragraph states [*3]that upon termination, the trustee shall "pay over the principal thereof to the beneficiary thereof, if living, otherwise to his or her issue; or in he or she shall have no issue, then to my issue then living, per stirpes." (emphasis supplied).

The will does not define "termination'. All the parties erroneously assume that "termination" means the death of the last grandchild. However, this interpretation is belied by the qualification of the phrase "beneficiary thereof, if living". Death of the last grandchild would always result in the death of the "beneficiary thereof" rendering the phrase "if living" meaningless. Therefore, "termination" must refer not to the death of the last grandchild but rather to the event where a single such person survives. The remaining provisions regarding issue must refer to the death of multiple surviving grandchildren/beneficiaries, for instance, in a common disaster.

One of testatrix's two granddaughters, Barbara Schutt, died on December 26, 1986 without issue. She was survived by her sister, Bettina Jennings who was the testatrix's only "beneficiary thereof" as of Barbara's death. Clearly the testatrix intended the trust to terminate upon the death of her penultimate grandchild if she had no surviving issue of the following generation. No application of the Article Fourth (a) provisions for "issue" are necessary as a living beneficiary survived. Therefore the principal of the Article Fourth (a) trust should have passed to Bettina Jennings outright.

The Article Fourth (b) trust is a separate trust having its own distinctive terms. It established trusts to pay income to the Testatrix's grandchildren. Several of the terms included in the Article Fourth (a) trust are omitted (ie "beneficiary thereof") but, significantly, repeats her desire to benefit her most remote living issue; "my issue then living." When Bettina Jennings, the last surviving granddaughter died without issue on January 1, 1991, the testatrix had no issue then living. It is obvious that the decedent inadvertently failed to provide for the possibility that her grandchildren would die without leaving issue surviving. However, the testatrix's intent can be ascertained "not from a single word or phrase... but from a sympathetic reading of the will as an entirety", Matter of Bliely, 91 NY2d 520 at 536. Therefore, the testatrix's expressed directions in the Article Fourth (a) trust are instructive.

A review of the decedent's will as an entirety demonstrates a clear and dominant purpose to thoroughly and completely distribute her estate. She certainly did not intend her bounty to escheat to New York State. The testatrix sought to provide income only for her daughter, and then provide income for her granddaughters and for the last surviving beneficiary to receive one half the corpus outright under Article Fourth (a) .

The purpose of a will construction is to determine the intent of the testator (See, Matter of McCabe, 269 AD2d 727 [2000]; Matter of Walker, 64 NY2d 354; Matter of Fabbri, 2 NY2d 236 [1957]; Matter of Gustafson, 74 NY2d 448 [1989]). Such intention is to be determined from a sympathetic reading of the will as a whole not from a single word or phrase. (See, Matter of McCabe, 269 AD2d 727 [2000]; Matter of Bieley, 91 NY2d 520 [1998]; Matter of Larkin, 9 NY2d 88, [1961]). Therefore the phrase to "my issue then living" must not be construed in a manner that would frustrate the testatrix's clear intentions to provide for her most distant issue.

Where a testator has executed a will she is presumed to intend to dispose of her entire estate by will and did not intend intestacy as to any part of it. (See, Matter of Dammann, 12 NY2d 500 [1963]). "The presumption against intestacy is particularly weighty where the subject of the gift is [*4]the residuary estate" (See, Matter of Bieley, 91 NY2d 520, citing, Matter of Hayes, 263 NY 219). "Where the entire will manifests a general testamentary scheme, it is the duty of the courts to carry out the testator's purpose, notwithstanding that "general rules of interpretation" might point to a different result". (Matter of Bieley, 91 NY2d 520, quoting, Matter of Thall, 18 NY2d 186.)

The court in Matter of Bellows, 103 A.D. 2nd 594, was faced with a conundrum similar to the one posed here. There, a testatrix directed that a testamentary trust pay income for life to her children. Upon their death, the corpus was to be paid to the issue of each child or "if he or she die without issue, then...be divided equally between his or her surviving brothers or sisters" (Id. at 596). The last of the testatrix's children died leaving neither issue nor a surviving sibling. Although the facts diverge somewhat, the issue as stated by the court was identical to the case at bar. "A review of the testatrix's will demonstrates that she....failed to anticipate the exact contingency which arose, namely, the demise of her last surviving child without issue or living siblings" (Id. at 596).

The King's County Surrogate held that the corpus of the trust be distributed as intestate property. The Appellate Division Second Department reversed and remanded. It held "the facts before us readily raise a presumption of a gift by implication". (Id. at 600)

It is irrefutable that Lena Mankowski intended to provide for a complete disposition of her property by her will. She never intended for any part of her estate to revert to New York State nor to her daughter. She clearly expressed an intention for her most distant future issue to inherit her bounty. She designated the life of her daughter's "youngest child" in the Fourth (a) Trust as the time period the trust should last in the event that her other grandchildren were not living at the time of her death. She directed that her last surviving grandchild/beneficiary receive the corpus of the Article Fourth (a) trust.

Where the express purpose of a will would be completely frustrated by an omission of a circumstance that is so obvious that only carelessness could have caused it, a gift will be implied. 39 NY Jur. 2nd Decedents Estates 741. Therefore, this court finds a gift by implication and concludes that the decedent intended to devise the corpus of both Article Fourth trusts to Bettina Jennings as her last beneficiary and most remote surviving issue. "Where an entire will irrefutably demonstrates a conscientious effort to provide for complete disposition of the [testators'] property but testator has inadvertently failed to foresee every eventuality, the presumptions against intestacy may be applied and a gift by implication found" (See Matter of Bliely, 91 NY2d 520, 536). Consequently the corpus of both Article Fourth trusts pass to Bettina Jennings.

Although the court construes the will to benefit the Estate of Bettina Jennings exclusively, the executor of that estate has entered into a binding settlement agreement to share the corpus with the Estate of Barbara Schutt. Therefore, it is hereby,

ORDERED, that the Attorney General's motion for partial summary judgement pursuant to CPLR 3212 and SCPA 2225 is granted to the extent that the court finds pursuant to CPLR 3212 and SCPA 2225, that no person exists who qualifies as "my issue then living" i.e., issue of the testatrix who survived the death of Bettina Jennings, the testatrix's last grandchild, and it is further

ORDERED, that the petition of the executor of the Estate of Bettina Jennings is granted, and [*5]that his motion for summary judgment is granted to the extent that the corpus of both trusts pass to the Estate of Bettina Jennings, and therefore the entire remainder of the decedent's estate be distributed to the Estate of Bettina Jennings and the Estate of Barbara Schutt pursuant to the settlement agreement dated September 13,2005 and it is further

ORDERED, the remainder of the Attorney General's motion for Summary Judgement is denied.

The within constitutes the Decision and Order of the Court.

Signed, entered and served this 4 th day of February, 2006. ________________________________

HON. JOHN S. HALL, JR.

Warren County Surrogate

Distribution:Charles M. Tomaselli, Esq.

Timothy B. Lennon, Esq.

Shirley Friday, Chief Clerk