Matter of Scavullo

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Matter of Scavullo 2014 NY Slip Op 31848(U) July 14, 2014 Sur Ct, NY County Docket Number: 2004-1028/B Judge: Rita M. Mella Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. -------~~,·-,' [* 1] Newyjjj;~ ~:"iiity Surrogate's Court DATt 1:NTRY DEPT. .JU. Jl 4 2014 SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------------x ·--"· ···------J In the Matter of a Petition for Construction of the Will of 12.E(lSlOti FRANCESCO SCAVULLO, File No.: 2(}).f · l028/B Deceased. ---------------------------------------------------------------------------·-X MELLA, S. The following papers were considered for purposes of rendering a decisicn ': l this construction proceeding under SCPA 1420: 1~·umbered Papers Verified Petition, dated May 18, 2013. and May 20, 2013, with Exhibits A and B ............................. 1 Verified Answer, Objection. and Cross-Petition, dated August 6, 2013, with Exhibit~ 1 1hough 4 ..... 2 Petitioners' Memorandum ("Reply to Verified Answer''). dated St:ptember 3, 20 LL ....................... .3 Respondent's Memorandum ("Surreply to Reply"), dated September 13, 2013 ................................. .4 In this contested construction proceeding in the estate of Francesco Scav u l o, two cross- I petitions ask the court to detennine the proper disposition of certain photographi 1~ :roperty under Mr. Scavullo' s will The parties have agreed to submit the matter fclr decision c,r he pleadings and supplemental papers. Testator was a renmvned fashion photographer who died on January 6, = '. "', at the age of C l i 18'.2, leaving an estate valued at approximately $3. 7 million. lt appears that the c;;t 1 :·.: assets HO\V I ! at issue - one half of the extant photographs, negatives, and transparencies produ: ::d by testator i \during his lengthy career (along with associated rights, herein refcned to as ''::1c i) ~: 1 perty at I IIssue'') - had a market value of less than $45,000 at the time of testator's deat:1. [ b~ central Iquestion in this proceeding is whether testator's will gives the Property at 1ssue t ¢ ¢ his long-ti me ! I domestic partner, Sean Byrnes, outright, or, instead, to a trust for Mr. Byrnes' lifi tcnefit, the I I j remainder of which passes to several individuals and a charitable foundation. I I \ - - - - + - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · ---- [* 2] Testator's will, executed on September 23, '.2002, was admitted to proba1e: ui June 18. 2004, with letters testamentary issuing thereunder to testator's friend, Michael H: 1 \l'itz, and testator's niece, Angela Scott the petitioners herein. In addition to modest pecmL L1~y bequests to persons in testator's employ at the time of his death, testator made the fr}llowin~ p ·e-residuary bequests: "SECOND: I give the items of tangible personal property listed follm:vs: Jv ow ... as A. 1 give and bequeath to the SCA VULLO FOUNDATION, a ch.: 1it1ble not-forprofit foundation to be frirmed under the laws of the State of New York by my Executors ... one-half (50°/l)) of all photographs, ne:;c.1 i1'es and transparencies created by me and any copyrights or other rights tlH H: n. 1 B. I give and bequeath to each of my brothers and sisters MARIE ~.('.AVULLO SA.EGERT, CHARLES SCAVULLO, VICTOR SCA VULLO ard \JARGARET SCAVULLO SCOTT, who survive[s] me, one silkscreen painting <·11 museum board created by me. D. I give and bequeath all of the balance of my tangible persona friend, SEAN M. BYRNES, if he survives [me]." l ·r;perty to my Mr. Byrnes did survive the testator. Therefore, to the extent relevant here, :l1e residue of testator's estate passes in trust fix Mr. Byrnes' lifetime benefit under the follo?v' .nf terms: "FOURTH: 1.) In the event my friend, SEAN M. BYRNES, suu 'es me, I give, devise and bequeath all the rest[.] residue[,] and remainder of rny 1: 5tate, real and personal ... of whatever nature and wherever situated, including, ;i '11hout limitation, photographs, negatives and transparencies and other ""' ¢:ks of art created or owned by me and not otherwise bequeathed pursuant 10 :u:y other provision of this Will. together with m1y copyrights relating th1~rd·.) m1y other rights of any kind ... as follows: A.) To my Trustees, in trust, to hold, manage, invest and re nv1~ ;: the same. to collect the income therefrom and to pay over the net income to SEAN M. BYRNES ... for the balanct: · >:· 1is 2 - - - - - ! - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · ---- ··--r- [* 3] ----;-------------------------------------·--·- natural lifo. It is also my express desire and wish that SE.'\,' I M. BYRNES be allowed by my Trustees to live out the ball.l ~ce of his natural life at 119 Burnett Street, Southampton. New Yor:<. 1 968, if he so desires and needs, and 1 ask that my Trustees hon·Jr :11is wish and desire. as said wish and desire is one of the reas1)J t; :·or the tmst created herein. B.) ay When SEAN M. BYRNES dies, my Trnstees arc directed l.J i:: 1 and distribute all of the ... [trust remainder ... as per Subs~:ctii1Jl" :: below]. 2.) In the event that my friend, SEAN JvL BYRNES, doe:; 11 :.1 survive me, then l give, devise and bequeath my residuary estate a:: follows: ANQL'I ' '· ,. . . . , C (~]] . "''""I" percent (--(-) 01) ¢ , , .to f·\_j .J e ,/-\_ SC'O'"l"""I"' I")L' , j vJ(" ¢] \JC, ; ·1 '.) (l ... thirty percent (30 %) ... to ROBIN BUSH[;] ... fifteen percent (15%) ... to AUDREY DELLA RUSSO[:] ... [and] five p1~1·:.:ent (5'%) ... to the SCA VULLO FOUNDATION. , , , f ¢t ¢ty 1 I The parties' competing claims to the Property at Issue can be simply stated On the one hand. Mr. Byrnes, through the guardian of his person and property, claims that t\J tide SECOND (0) gives to him outright the photographs, elc., not bequeathed to the Scavulli~" F( 11rdation under Article SECOND (A). For their pmi, the executors claim that such property _p;1rn~; .nstead in trust, under the above-quoted provisions of Article FOURTH (1 ). 1 lt is well established that the court's ultimate mission in a construction p 1 ~;:eding under i SCPA 1420 is to determine the testator's intent where his meaning has been oo:.c. red by some infirmity in the drafting of his will (see J"\4atter of Carmer, 71 NY2d 781 [1988]). To accomplish that objective. the court must be mindful of some basic principles. For one, card LI construction Ientails a sympathetic reading of the will in its entirety, as opposed to a readin§. h;:,5 Ed upon \~~~~~~~~~~~I I . iThe court is aware that the construction urged by the executors as petitiJ·H ~ts herein Sine·~ Ji; record is ·silent as to Mr. Byrnes' own testamentary aJ.Tangements, or perhaps lack tliereoJ: i is not knovvn whether the competing construction urged by his property guardian (infi-ct). wile is ,js sister, likewise serves her own individual interests. 1 I serves the individual interests of one of them under Article FOURT11 (2). - - - - + - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · ---- [* 4] ----+-----------------------------------· --·isolated words or phrases (see Afatter ofFabbri, 2 NY2d 236 [1957]). For anot1t1. since the intent of a particular testator is as individual as he was himsel L precedents cor c<~rr i ng other testamentary instruments can be of only limited utility (see Matter qf Goodrum, l i 1 Misc 2d 105. 108 [Sur Ct, Erie County 1996]). The defect in the drafting of this testator's will. and thus the need for iis I I not at first apparent. C1)~~;1ruction. is On the one hand. testator devoted Article SECOND to dispi: : ing of such Subdivi~ion:: (Al and (B) of I that Article he specified photographs, etc., along \vith select silkscreen painting~:. c such list; '"items of tangible personal property" as he "listed below" and under 11 testator then left "all of the balance" of his "tangible personal propctiy" to Mr. B~ 1n~s. Had testator said nothing further about bis tangibles, it would have appeared perhaps i ~- t·guable that the provisions of Article SECOND in combination were intended to dispose of 1: 1 ~r\1 item of .·1 testator's tangible persona[ property, including the Property at Issue. But testat<ir d··.i say something further, specifying that some of the photographs, etc., were to be held 1t :rust under Article FOURTlI (] ). Hence the difficulty of discerning whether testator imi:u: ccl the Property at Issue to pass outright to Mr. Byrnes under A1iicle SECOND (D) or only in ~h: t ·11st f()r him I during his life, \vith remainder to other persons, under Article FOURTH ( 1). \Vhere.. as here, a \vill does not SJ)eak for itself clearlv . courts often reS·)t t : ) the anahtic ¢ ¢ I I Iaid of accepted canons of construction. Particularly because each testamentaJ)' tn~ trument is Iunique, a court should not gauge a testator's intent by merely rote application Df ! i 1d1 canons (see Marter I in <~f Young, 62 Misc 2d 86, 89 [Sur Ct, Kings County 1969]). Neverthe[e~:s the canons are substance expressions of common sense and, as such, they often prove helpful t :. the I construction i process. For purposes of the present case. there are tYvo canons thU <:re particularly I I i 4 i ----!-----------------------------------·--·- [* 5] - - - - + - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _ ,____ ,___ _ instructive. The first relevant canon is that a testamentary instrument should if po~.~;ibl: :;c construed to avoid the conclusion that the instrument contains empty or irreconcilable prn ri :> 1ms. The 1 proposition may be stated somewhat differently as follows: where the testator w::,~ ·:ither inartful or nonsensical, the fimner is to be presumed over the latter. Thus, as our Comt D 'Appeals has observed. "Words are never to be rejected as meaningless or repugnant if by an) 1UL3 ¢)nable construction they may be made consistent and significm1t [since] [e]xcision is a ': c~perate I I remedy'" (Marter qfGrif}lth, 226 NY 440, 443 [1919], quoting Adams v Masse.::., . :l4. NY 6:2. 69 [1906]). In the present case, this court would be in such desperate straits if the A.11 ide SECOND (D) bequest of"tangible personal property'' outright to Mr. Byrnes had to be unduqood to include the Property at Issue. the very smne property that was bequeathed to ttc t1ut as a part of the residuary estate. If the two provisions in question were indeed irreconcilable, a second carn1n of construction would point to the prior provision's giving way to the later one. Tim:, as the Court Iof Appeals has noted, ''when two clauses in a will ... cannot possibly stand tcg:th:T, the one I which is posterior in position shall be considered as indicating a subsequent irter1 1;n. and t Iprevail, unless the general scope of the will leads to a contrary conclusion'' (Vim \ mtrand v I I Moore, 52 NY l :2, 16 [ 1873]; see A.fatter of Fuchs, 212 AD:2cl 61 :2 [2d Dept l 9C. ¢::]). In the Ipresent case. the "general scope of the will" does not militate against followings 1 ~h canon, since I !the most that can be said of testator's general intention is that he wished to proviL1 ~ i IByrnes paiily outright and partly in trust, rather thim solely the former. jx Mr. This case, however, docs not in any event require the comi to read the p ·c, ::;ions in 5 - - - + - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---- [* 6] - - - - + - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · - - - · ---- question as necessarily contradictory. This is not to ignore that "tangible perrnra, property" may in common parlance be understood to include items such as photographs and th·~ ¢L~ (see Matter ofFaggen, NYLl Mar. 10, 2010, at 36, col 2 [Sm Ct, NY County] and cases ci :'~: therein). Nor is it to forget that testator himself used the phrase "tangible personal property'' L1' il'.dude items such as photographs, etc., under Article SECOND. Jlo\vever, the phrase is not :;i: [:·flexible as to preclude a broader usage at one point or a narrower usage at another point (id.). [ · is thus far more plausible that testator lapsed into a drafting inconsistency (by using the pbra: :1~ ''tangible personal prope1iy" at one point broadly and at another point more narrowly) than t [,at he surrendered to an irrational urge to dispose of the same propetiy twice. It should be noted that Mr. Byrnes' guardian for her pa1i sees no tensic·n h 11 veen A1iicle SECOND (D) and Article FOURTlI (1). According to the guardian, Article J~Olf rrH ( 1) was intended to dispose of the Property at Issue only if the Article SECOND (D) bequ:;;t failed I I because Mr. Byrnes did not survive him. Simply put, however, the guardian'~ ccrtcntion ignores I the plain terms of the will. Under those terms, the Article FOURTH ( 1) trust -- i;r 1ich testator specified was to be funded \Vith assets including the Property at Issue - \Vas t.:·, <or ic into effect I ! only if Mr. Byrnes survived decedent. Indeed, ifthe guardian's theory were C1)m c -- i.e., that the I I I Propetiy at Issue was intended to pass under Article FOURTll only if the beqKs I ! SECOND (D) u1der Article failed, a specific reference to the Property at Issue as within t!K re duary \Vould I have been entirelv unnecessarv, since under such circumstance that ProJJertv \.VC1ul J automatically I . Ihave defaulted into the residuary estate without any need for r:he specification. r 1 t.3. the specific j reference in A1ticle FOURTH(]) to the Property at Issue is best understood a:; :ht :[rafter's way ! ! of making clearer that Aiiicle SECOND (D) had not been intended to dispose oft mt Property. 6 - - - - + - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · ---- [* 7] 11110 I For the foregoing reasons, the court grants the petitio to construe th · disposing of the Property at Issue under Article FOURTH (l)(A), and the ross-petition i Settle decree accordingly. Dated: July t"f- , 2014 SURR E 7 11111

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