Matter of Brice

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[*1] Matter of Brice 2011 NY Slip Op 52272(U) Decided on December 13, 2011 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2011
Sur Ct, Nassau County

In the Matter of the Petition of Lawrence Newman as Executor of the Estate of Winifred Gooding Brice, for Construction of the Decedent's Will.



2011-364987/D



The appearance of counsel is:

Albert Kalter, P.C.(for petitioner)

225 Broadway, Suite 1806

New York, NY 10007

Edward W. McCarty, J.



This is a petition for construction of a last will and testament.

The last will and testament of the testator, dated April 1, 1998, and six codicils were admitted to probate by a decree of this court dated May 9, 2011. At issue is the date of the termination of a testamentary trust.

Article "EIGHTH" of the will dated April 1, l998 provides:

I give any property which I have directed to be disposed of pursuant to the provisions of this article to my issue who shall then be living, except that any share otherwise payable to a child of mine who is under the age of fifty years at such time ("the beneficiary") I give instead to my Trustees, IN SEPARATE TRUST, during the lifetime of the beneficiary or until the earlier termination of the trust, for the following purposes:

(a) To pay the income to the beneficiary at least quarter-annually.

(b) To pay to the beneficiary at any time or times prior to the termination of the trust such sums from or any part or all of the principal of the trust as my Trustees may, in their discretion, determine to be reasonably necessary for the beneficiary's support, maintenance, education (including private schools, colleges, universities and graduate and professional schools), health or other benefit or to meet the costs of any emergency affecting him, including but not limited to illness or accident.

(c) To pay to the beneficiary upon attaining the age of forty years a sum from or part of the principal of the trust equivalent in value to one-half of such principal as then constituted; and to pay to the beneficiary upon attaining the age of fifty years the then remaining principal, if any.

(d) Upon the death of the beneficiary prior to his fiftieth birthday, to pay the then remaining principal, if any, to his issue then living, or if he has no such issue to my issue then [*2]living, except that any share otherwise payable to a person for whose benefit a trust shall then exist pursuant to any provision of this will shall instead be added to the principal of such trust, to be administered and disposed of by my Trustees as if a part thereof from its inception. If I also have no issue then living, I dispose of such principal as provided in article NINTH.

A codicil dated July 28, 1998 provides:

I amend subarticle (d) of article EIGHTH of my will to read in its entirety as follows:

(d) Upon the death of the beneficiary prior to his fiftieth birthday, to pay the then remaining principal, if any, to his issue then living, or if he has no such issue to my issue then living, except that any share otherwise payable to a person for whose benefit a trust shall then exist pursuant to the provisions of this article shall instead be added to the principal of such trust, to be administered and disposed of by my Trustee as if a part thereof from its inception. If I also have no issue then living, I dispose of such principal as provided in article NINTH.

A codicil dated October 31, 2002 makes no relevant changes.

A codicil dated October 18, 2004 provides:

I give any property which I have directed to be disposed of pursuant to the provisions of this article to my issue who shall then be living, except that any share otherwise payable to a child of mine who is under the age of sixty years at such time ("the beneficiary"), I give instead to my Trustees, IN SEPARATE TRUST, during the life of the beneficiary or until the earlier termination of the trust, for the following purposes:

(a) To pay the income to the beneficiary at lease quarter-annually.

(b) To pay to the beneficiary at any time or times prior to the termination of the trust such sums from or any part or all of the principal of the trust as my Trustees may, in their discretion, determine to be reasonably necessary for the beneficiary's support, maintenance, education (including private schools, colleges, universities and graduate and professional schools), health or other benefit or to meet the costs of any emergency affecting him, including, but not limited to, illness or accident.

(c) To pay to the beneficiary upon attaining the age of fifty years a sum from or part of the principal of the trust equivalent in value to one-half of such principal as then constituted; and to pay to the beneficiary upon attaining the age of sixty years the then remaining principal, if any.

(d) Upon the death of the beneficiary prior to his sixtieth birthday, to pay the then remaining principal, if any, to his issue then living, or if he has no such issue, to my issue then [*3]living, except that any share otherwise payable to a person for whose benefit a trust shall then exist pursuant to the provisions of this article shall instead be added to the principal of such trust, to be administered and disposed of by my Trustees as if a part thereof from its inception. If I also have no issue then living, I dispose of such principal as provided in article NINTH.

A codicil dated December 29, 2006 provides:

I hereby amend article EIGHTH (d) of my will to read as follows:

(d) Upon the death of the beneficiary prior to his fiftieth birthday, to pay the then remaining principal of the trust to such persons other than himself, his estate, his creditors, or the creditors of his estate, in such proportions, on such terms and contingencies, either absolutely or in trust, as he may appoint by specific reference to this power in a will.

If or to the extent to which the beneficiary fails effectively to exercise the power granted to him to dispose of the principal remaining on his death to my other child if he is then living or if not, I dispose of such principal as provided in article NINTH.

A codicil dated March 2, 2007 makes no relevant changes.

A codicil dated June 1, 2007 re-publishes the last will and testament and all codicils indicated above.

Petitioner seeks a construction to the effect that the December 29, 2006 codicil retains age 60 as the date for termination of the trust although reference is made to age 50 in the provision in question.

The codicil dated December 29, 2006 does not specifically change the provision in the October 18, 2004 codicil which provided for payment of income until 60 years (subdivision [c]). However, it provides for payment of the principal in the event of the beneficiary's death prior to age 50. Thus, there is an inconsistency between the two codicils concerning the date of the termination of the trust. Petitioner seeks a construction that termination of the trust at age 60 should be read into the codicil dated December 29, 2006. The proposed construction is based upon petitioner's contention that the scrivener of the December 29, 2006 instrument overlooked the prior codicil. The contention clearly has merit in that the December 29, 2006 codicil declares it to be the third codicil to the decedent's will, identifying the July 1998 and October 2002 codicils as the first and second codicils, respectively, when it was, in fact, the fourth codicil, the October 2004 codicil having been the third.The general rule is that a codicil republishes a prior existing will as of the date of the codicil and revives the existing codicils to such will (Matter of Cable, 123 Misc 894 [Sur Ct, Delaware County 1924], affd 213 App Div 512 [1925], affd 242 NY 510 [1926]); Matter of Paltz, 44 Misc 2d 596 [Sur Ct, Suffolk County 1964]). In this case, the omission of any reference to the October 18, 2004 codicil in the December 29, 2006 instrument raises a question of revocation. However, even if there was an intent to revoke the October 18, 2004 codicil by excluding it in the December 29, 2006 instrument, the codicil was republished and revived by the June 1, 2007 codicil (Matter of Marshall, 154 NYS2d 477 [Sur Court, Nassau County 1956]) and the question of revocation of the entire codicil is rendered [*4]moot.

The question before the court is whether the December 29, 2006 instrument contains an implied revocation of that provision in the October 18, 2004 codicil which provided for termination of the trust at age 60.

A will and its codicils are regarded as a single instrument for the purpose of determining testamentary intent (Matter of Pilsbury, 113 App Div 893 [3d Dept 1906]). An estate once devised or an interest intended to be given will not be sacrificed on the grounds of repugnancy when it is possible to resolve the provisions supposed to be in conflict (Goodwin v Coddington, 154 NY 283 [1897]). In all construction proceedings, the intention of the testator prevails (Matter of Cord, 58 NY2d 539 [1983]; Matter of Fabbri, 2 NY2d 236 [1957]).

The October 18, 2004 codicil contained four subdivisions in Article "EIGHTH." Subdivision [c] provided for the payment of principal at two intervals. Subdivision [d] provided for disposition of the remainder. The December 29, 2006 codicil states that it is an amendment to subdivision [d] and provides that the remainder is to be disposed of pursuant to a special power of appointment. The new provision [d] was intended to substitute only that part of the codicil (see Goodwin v Coddington, 154 NY 283 [1897]) which concerned the remainder. It should not be read to effect a change in subdivision [c]. When the testator intended to change the date of termination of the trust to 60 years, the revision was labeled subdivision [c] and corresponded to subdivision [c] in the original instrument.

It appears that the draftsman of the December 29, 2006 codicil mistakenly repeated the age as set forth in the instruments dated April 1, l998 and July 28, l998 and did not take into account the October 18, 2004 codicil which is now a part of the last will and testament by republication.

Accordingly, Article "EIGHTH" is construed to provide for termination of the trust at age 60.

Submit decree.

December 13, 2011

Edward W. McCarty III

Judge of the

Surrogate's Court