Matter of McDevitt
Annotate this CaseDecided on June 1, 2009
Sur Ct, Broome County
In the Matter of the Construction and Reformation of the Last Will and Testament of Robert L. McDevitt, Deceased.
2008-531-A
David H. Guy, Esq.
Coughlin & Gerhart
19 Chenango Street
P.O. Box 2039
Binghamton, New York 13902
Mary A. Walsh
Assistant Attorney General
State of New York
Office of the Attorney General
44 Hawley Street, 17th Floor
Binghamton, NY 13901
Eugene E. Peckham, J.
This is a proceeding for construction of the will of Robert L. McDevitt. The first requested construction concerns the tax and expense clause of the will. The second construction relates to language contained in Article Eighth of the will relating to the bequest of decedent's residence to the Roman Catholic Diocese of Syracuse, New York.
Decedent was predeceased by his wife and they had no children and he had no other living relatives. He left a very large estate of more than $300,000,000 consisting largely of IBM Stock. There are two executors, whose commissions on such a large estate will be about $6,390,000 apiece or a total of $12,780,000 and legal fees will be about $995,000. SCPA Section 2307; Petition, p.5. Debts and funeral expenses are about $60,000.
It is axiomatic that in construing a will the intention of the testator as determined from a sympathetic reading of the will as a whole is paramount. Matter of Fabbri 2 NY2d 236 (1957); Matter of Bieley 91 NY2d 520 (1998). Such a reading of the McDevitt will makes clear the testator, after his wife predeceased, had two primary intentions: (1) to insure the continuation of the McDevitt Brothers Funeral Home founded by his grandfather in 1880 by leaving it to his long time employee, Kevin McManus, and (2) to continue his lifetime commitments and gifts to various Roman Catholic charities.
The problem with the tax and expense clause of the will is that there are two of them. Article Second of the will provides for all debts, funeral and administration expenses and estate taxes to be paid from the gifts related to the funeral home in Articles Fifth and Sixth of the will. Article Sixteenth provides for estate taxes only to be paid from Articles Fifth and Sixth.
Article Fifth is a bequest of the McDevitt Brothers Funeral Home to Kevin McManus. The funeral home and related real estate is estimated to be worth about $500,000. Petition p. 3-4. Article Sixth is a trust of $3,000,000 to reimburse McManus for any losses the funeral business might incur up to $80,000 per year. It is readily apparent that if all the funeral and administration expenses totaling over $13,800,000 are charged to the bequests in Article Fifth and Sixth those bequests will be wiped out. The funeral home business would have to be sold to pay the estate expenses.
Article Fifth of the will provides as follows: "It is my hope and expectation that Kevin P. McManus will continue to use the name McDevitt in connection with the operation of the Funeral Home Business . . . and . . . will refrain from selling the Funeral Home Business and the Business Real Estate for at least 10 years following the date of my death." A sale of the funeral home business and elimination of the bequests for the benefit of Kevin McManus would clearly violate the intent of the testator.
Where there are inconsistent provisions in a will, the Court must give effect to the testator's primary intention that he would have wanted preserved. Austin v. Oakes 117 NY 577 (1890); Matter of Hemstreet 101 Misc 340 (Surr. Ct. Madison Co. 1917); Matter of Hynard, NYJL, 10/1/98, p. 33, col. 3 (Surr. Ct. Suffolk Co.) In this case, the testator clearly wanted to continue the name of McDevitt and its connection to the operation of the funeral home business. He would not have wanted that primary purpose to be defeated by the allocation to the funeral home bequest of funeral and administration expenses in excess of the value of the business. [*2]
An additional canon of construction supports this conclusion. Where there are conflicting clauses in a will that cannot be reconciled, the one that appears later is preferred. The theory is that the later clause represents the subsequent intention of the testator. Levin v. Forman 2 AD3d 228 (1st Dept 2004); Matter of Fuchs 212 AD2d 612 (2nd Dept 1995); Matter of Randall 77 Misc. 41 (Surr. Ct. Cayuga Co 1912) aff'd 158 AD 951 (4th Dept 1913) aff'd 211 NY 547 (1914).
Matter of Hynard, supra also involved inconsistent tax provisions. The first sentence of the tax clause apportioned the taxes entirely to decedents children. A second sentence provided for apportionment to the residuary with the result that all the beneficiaries, including some charities, would share the taxes. The Court determined that testator's primary intent was to benefit his children. Thus, the latter sentence was applied so that all the beneficiaries and not just the children would share in the payment of taxes.
Similarly here, Article Sixteenth of the will provides for only estates taxes to be paid from the funeral home bequests in Articles Fifth and Sixth of the will. The estate taxes will not wipe out these bequests, since the entire residue is left to charity. On the other hand, applying the earlier Article Second where taxes and also administration expenses of over $13,800,000 are allocated to the bequests in Articles Fifth and Sixth would eliminate those bequests. The administration expenses of over $13,800,000 are greater than the $3,500,000 value of the funeral home and the trust.
Thus the Will of Robert L. McDevitt is construed to provide that estate taxes are to be paid from the bequests in Articles Fifth and Sixth of the will and the debts, funeral and administration expenses are to be apportioned to and paid from the residuary estate. This result gives effect to the provisions of Article Sixteenth over the earlier Article Second as to the allocation of taxes and expenses.
Article Eighth of the will devises to the Roman Catholic Diocese of Syracuse, New York
decedents residence and its contents. Article Eighth then goes on to provide:
It is my expectation that the Diocese will allow the following persons, in the
following order of priority, to occupy My Residences "rent free" and to use the Furnishings free
of charge: (1) the principal (or officer with comparable duties)) of Seton Catholic High School
(now located at 70 Seminary Avenue, Binghamton, NY 13905), (2) the executor director (or
officer with comparable duties) of Lourdes Hospital Foundation, Inc. (now located at 169
Riverside Drive, Binghamton, NY 13905), (3) the president (or officer with comparable duties)
of Lourdes Hospital (now located at 169 Riverside Drive, Binghamton, NY 13905), and (4) the
executor director (or officer with comparable duties) of Associated Catholic Charities of Broome
County, Inc. (now located at 232-234 Main Street, Binghamton, NY 13905).
The executors are concerned that if the quoted language is a limitation on the bequest to the Diocese, it might defeat the charitable deduction for that bequest. It could defeat the charitable deduction because a private benefit is conferred upon the individuals holding the positions named. Even though the individuals are officers of charitable entities, they would receive "rent free" housing for themselves, and presumably their families.
It is well established that where the testator expresses a wish or desire, such provision is precatory and not mandatory. Post v. Moore 181 NY 15 (1905); Matter of Warren 11 NY2d 463 (1962); Ottman v. Alter 212 AD 80 (3d Dept 1925); Matter of Brustein 282 AD 989 (3rd Dept [*3]1953); Matter of Kaplan 14 Misc 2d 1064 (Surr. Ct. Kings Co. 1958). In the McDevitt will, testator states "I give and devise to the Roman Catholic Diocese of Syracuse, New York" my residence and contents. He then says "It is my expectation . . ." the diocese will use the property to provide "rent free" housing to persons holding certain named positions.
The latter provision does not contain a direction or other mandatory provision. Even more telling Article Eighth contains no provision as to what happens if the Diocese does not follow his expectation. For example, there is no gift over to a third party if the expectation is not following. The intention of the testator to make an absolute charitable gift to the Roman Catholic Diocese is reinforced by the fact that the entire residuary estate is left to charity, including numerous Roman Catholic charitable entities and universities.
It is held that the gift of the residence and contents is an absolute gift to the Roman Catholic Diocese of Syracuse, New York thereof. The language of expectation is precatory and is not binding on the Diocese.
Submit decree in accordance with this decision.
Dated:_________________________
Hon. Eugene E. Peckham
Surrogate Court Justice
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