Matter of Serio
Annotate this CaseDecided on August 13, 2009
Sur Ct, Chemung County
In the Matter of the Last Will and Testament of James W. Serio.
2007-107
Richard D. Keyser, Attorney for the Petitioner, Chemung Canal Trust Company; Diana L. Hughes, Attorney for Joan S. Hill; and Bryan J. Maggs, Attorney for Laury M. Pitts
Peter C. Buckley, J.
This matter is before the court on a petition by the fiduciary, Chemung Canal Trust Company, to construe the meaning of the decedent's last will and testament.
James W. Serio died a resident of Chemung County on January 31, 2007. Letters Testamentary were granted to the bank and to Joan Hill, on February 11, 2008. The decedent was survived by his children, Laury Marie Pitts and James A Serio and his sister, Joan S. Hill.
Included within the decedent's estate was a safe deposit box at UBS AG, Global Wealth Management and Business Banking, in Geneva Switzerland. Contained in the safe deposit box were 81 ½ bars of gold, amounting to 2620 fine troy ounces of gold, with a date of death value of $1,704,310. The bars came from two collections, one British and the other Swiss, and the bars from each collection were serially numbered. The bank liquidated 79 of the bars at a price of $2,396,213.10, a $744,182 gain over the date of death value. The remaining bars were not liquidated at the request of Laury Pitts, who wished to take them as part of her estate share. These bars were shipped back to the fiduciary bank, at the expense of Ms. Pitts, for safe keeping until they are distributed under the estate.
Contained in the safe deposit box was a note from the decedent which read as follows:
"GENEVE 60 K.G.
LONDON 21 ½ K.G. = 2,619.92 FINE OZS.
TOTAL AMOUNT
Returned to safe Oct. 1st 86 everything O.K.
If I don't return, I hope whoever gets into this box uses the contents slowely [sic] andwisely. Only cash in what you need.
You can bring back into the U.S. just don't say you got it from me. [signed] Jimmie"
The note was left by the decedent when he and his then wife visited Switzerland and accessed the safe deposit box in 1986.
Receipts for the purchase of the gold bars indicate that the decedent purchased the British collection bars in 1968 and the Swiss collection bars in 1969. By Presidential Executive Order 6102, United States citizens were prohibited at that time from owning all but small amounts of [*2]gold. Such restrictions were removed by Public Law 93-373, which became effective on December 31, 1974.
The decedent executed his last will and testament on November 4, 1993, which made no reference to the gold bars. The decedent apparently made no mention of the bars to his attorney, who drew the will. It has been speculated by the parties that the decedent may not have been aware of the lifting of the restrictions on ownership of gold. It is thus surmised that he was attempting not to incriminate himself in not specifically providing for the disposition of the gold bars in his will. The gold bars in fact account for a substantial portion of the decedent's estate.
The parties argue concerning whether the gold bars should be distributed under paragraph Third or paragraph Sixth of the will.
Paragraph THIRD reads as follows: "All of my clothing, jewelry, and personal effects, all of my household furniture and furnishings, automobiles, and all other tangible personal property of whatever kind and wheresoever located, I give and bequeath to my sister, Joan S. Hill, my son, James A. Serio, and my daughter, Laury Marie Pitts, to be divided among them as they may determine, on as near equal a basis as feasible, any dispute to be resolved by my sister."
Paragraph SIXTH reads as follows: "I give, devise and bequeath my residuary estate, including the proceeds from the sale of any real estate, as follows: (a) One half (½) thereof to my son, JAMES A. SERIO . . .[excluding stated birth date and gift over to children information, which did not come into play] ( c ) [sic] One half (½) thereof to my daughter, LAURY MARIE PITTS . . . [excluding like information for like reason]."
The attorney for Joan Hill argues that the gold bars are tangible personal property and should pass under Paragraph Third of the will. She argues that the bars are "tangible and movable and had inherent value to the decedent rather than value because it had monetary value upon liquidation." It was her contention that the decedent held them as a valued commodity collection, visiting them, memorializing the serial numbers and photographing them. Although no hearing was ultimately requested, it was her contention, by way of an affidavit, that the decedent declined to convert the bars he had in the safe deposit box into an equal value of gold in this country, because he wanted that particular collection.
The attorney for Laury Pitts argues that the gold bars are not of the same type as the examples of property listed as passing under paragraph Third and that under the legal theory of ejusdem generis that the bars should not be included within that paragraph. If they do not pass under paragraph Third, the bars would then pass under the residuary clause in paragraph Sixth.
The fiduciary believes that logic dictates that the theory of ejusdem generis should apply, but does not formally take a position, as they have no stake in the matter and will distribute as directed by the court.
"As in all construction cases, the inquiry ultimately resolves itself into: What was the testator's intent? In determining what the testator meant by the use of the words [which were involved in that case] personal effects' the courts consistently have applied the rule of ejusdem generis; e.g., Matter of Thompson (218 A.D. 130), aff'd. 245 NY 565), and Matter of Steimes (150 Misc. 279)." In re Minniss's Will, 200 Misc. 353, 354 (Surr. Ct. Erie Co., 1951).
The rule of ejusdem generis has been explained as follows, "the rule of ejusdem generis, which is but the application of a common sense principle which, if not already embodied in a [*3]rule, would have to be evoked afresh, namely, that where the testatrix uses words to enumerate a certain definite class of things and then follows with general words, the enumerated things show the kind of things that she had in mind when she employed the catch-all general phrase. As was said by Chase, J., in Matter of Robinson (203 NY 380): The rule which we are applying is that where certain things are enumerated, and such enumeration is followed or coupled with a more general description, such general description is commonly understood to cover only those things ejusdem generis with the particular things mentioned. In such case it is presumed that the testator had only things of that class in mind.'" Matter of Gardner, 218 AD 130, 132 (1st Dept., 1926), affirmed, 245 NY 565 (1927), rehrg denied, 245 NY 620 (1927).
Black's Law Dictionary states, "ejusdem generis (Latin of the same kind or class') A cannon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed." Black's Law Dictionary [7th Ed.].
Examples of the application of ejusdem generis are as follows:
In Matter of Steimes, 150 Misc. 279 (Surr. Ct. Monroe Co., 1934) the will phrase household furniture, bedding, linens, wearing apparel and all my personal effects' was held not to include two valuable rings.
In Matter of Pergament, 204 Misc. 384 (Surr. Ct. NY Co., 1953), affirmed, 383 AD 869 (1st Dept., 1954) a bequest to the widow of personal effects, household effects, automobiles and other tangible property, whether located at the present address or elsewhere at the time of decedent's demise, did not include cash found in a safe deposit box. The court found that the enumerated items were all associated with the decedent's residence (current residence or residence at the time of his death) and that the safe deposit box was not associated with such residence.
The court in In re Horner's Will, 82 NYS2d 491 (Surr. Ct. Queens Co., 1948) found that a bequest of "other personal effects in said house contained' following a list of furniture and furnishings did not include jewelry.
In Matter of Gardner, 218 AD 130 (1st Dept., 1926), affirmed, 245 NY 565 (1927), rehrg denied, 245 NY 620 (1927) the court found that jewelry did not fit in with toilet articles, a clock, furs, dresses, and other purely personal effects. This was especially true where the beneficiary had been specifically bequeathed certain named or described pieces of jewelry.
In Matter of Falvey, 15 AD2d 415, 420 (4th Dept., 1962), affirmed, 12 NY2d 759 (1962) the court found that ejusdem generis, "leads to the prima facie inference that the general description is limited by the particular enumeration and that it includes only things of the same general kind."
In this court's opinion, the theory of ejusdem generis perfectly and logically applies to the circumstances of this case, where the decedent has set forth a list of items (clothing, jewelry, personal effects, household furniture, household furnishings, and automobiles) and then adds general language (and all other tangible personal property of whatsoever kind and wheresoever located). Under the theory, the "all other tangible personal property" is limited by the examples [*4]provided by the testator.
In viewing the list of clothing, jewelry, household furniture, household furnishings, automobiles and 81 ½ bars of pure gold, it is clear that the 81 ½ bars of gold do not fit in with the other items in that list. They are certainly not of the same nature, character and quality as the other items. The other items are in general, as noted by the court in Matter of Pergament, supra , associated with the residence of the deceased. The autos in both cases would be parked at or near the residence and used as a part of daily living associated with that residence. The safe deposit box contents in both cases were not associated with the residence. In the instant case the safe deposit box was located a great distance away, in Geneva, Switzerland and the decedent had apparently not been there for some twenty-one years prior to his death. Presumably, the items contained in and about his residence, he used on a regular basis.
The court finds that the terms of the will, taken by themselves, do not provide clarity on the issue and in fact leave ambiguity. Application of the rule of construction of ejusdem generis is thus appropriate and once applied, provides a prima facie inference which has not been rebutted in this case.
Viewing the decedent's will as a whole, the court finds that the application of ejusdem generis appears to honor the general and natural intention of the testator to provide for his children in the disposition of his estate.
The court finds that the contents of the decedent's safe deposit box in Geneva, Switzerland, being 81 ½ bars of gold, are to be distributed pursuant to paragraph Sixth of the decedent's last will and testament, dividing the same equally between his children, James A Serio and Laury Marie Pitts. There being no objection expressed between the surviving children, the 2 ½ unsold bars may be distributed in kind to Laury Marie Pitts, with overall split in value between them being equal. The fiduciary is ordered to distribute accordingly.
This constitutes the decision, opinion and order of the court.
Dated: August 13, 2009_________________________________________
Peter C. Buckley
Surrogate
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
