Docket No. 2014-380584/F, Dec. No. 32962.

2017 NY Slip Op 31647(U)

In the Matter of the Construction of the Last Will and Testament of MARTIN IKENSON, Deceased.

Surrogate's Court, Nassau County.

Attorney(s) appearing for the Case

Kestenbaum & Mark Att: Jill S. Monoson, Esq. , 40 Cutter Mill Road, Suite 300, Great Neck, New York 11021.

Bashian & Farber LLP Att: James L. Hyer, Esq. , 235 Main Street, White Plains, New York 10601.

Robert A. Brady, Esq. , 31 South Bayles Avenue, Port Washington, New York 11050.

Lisa Barbieri Esq. , Assistant Attorney General, Charities Bureau 120 Broadway, New York, New York 10271.



This is a petition for the construction of a last will and testament, brought by Maxine Vogel, the trust beneficiary.

The last will and testament of Martin Ikenson was admitted to probate by a decree of this court dated August 26, 2015. Letters of trusteeship issued to Robert Brady, Esq.

Article "SEVENTH" of the will provides in pertinent part:

"I give, devise and bequeath all the rest, residue and remainder of my property and estate, both real and personal, of whatever kind and wherever located, that I own or to which I shall be in any manner entitled at the time of my death (collectively referred to as my "residuary estate"), as follows: (a) To my Trustee hereinafter named, IN TRUST, to hold the same in a separate trust, for the benefit of my friend, MAXINE VOGEL, to manage, invest and reinvest the same, and to dispose of the net income therefrom and principal thereof, as follows: (b) Upon the death of my friend, MAXINE VOGEL, the principal of this trust at that time remaining, shall be paid over and distributed in equal shares to the following five charities, to be used for their general operating purposes: 1. Ohr Torah Stone Institute 49 West 45th Street, Suite 701, New York, NY; 2. American Committee for Shaare Zedek Hospital 55 West 39th Street — 4th Floor New York, NY 10018; 3. Chai Lifeline 151 West 30th Street — 3rd Floor New York, NY 10001; 4. American Friends of Landiado Hospital 261 West 35th Street — Suite 803 New York, NY 10001; and 5. American Friends of Yeshivat Kerem B'Yavneh 1481 Avenue N — Suite 1 Brooklyn, NY 11230."

Petitioner Maxine Vogel seeks a determination as to the construction and effect of Article "SEVENTH" and as to the standard for distribution of the Article "SEVENTH" trust. Her position is that the testator intended that she receive all of the "net income" from the trust and that invasion of principal for her benefit is in the discretion of the trustee.

The general rule of construction is that the intention of the testator is to be discerned within the four corners of the will (Matter of Fabbri, 2 N.Y.2d 236 [1957]) from a reading of the document as a whole (Matter of Thall, 18 N.Y.2d 186 [1966]). Extrinsic evidence is inadmissable to vary or contradict an unambiguous provision in a will (Matter of Walker, 64 N.Y.2d 354 [1985]; Matter of Cord, 58 N.Y.2d 539 [1983]) but extrinsic evidence may be admissible to clarify an ambiguity (Matter of Phillips, 101 A.D.3d 1706 [4th Dept 2012]).

Here, the court finds no ambiguity but rather the omission of a provision. The instrument: 1) clearly expresses an intention to create a trust for the benefit of Maxine Vogel; 2) defines the duration of her interest; and 3) identifies the charitable remaindermen. The instrument omits a direction as to the payment of income and invasion/distribution of principal during her lifetime.

It appears that the testator gave instructions as to administration of the trust during the lifetime of Maxine Vogel and the instructions were deleted from the text. The reference to the "net income" Article "SEVENTH" subdivision (a), can only apply to the payment of income during the lifetime of Maxine Vogel. Therefore, it is logical to conclude that there is a typographical error in the instrument, resulting in the omission of a sentence directing the payment of income and with it the standard for the invasion of principal.

On a construction, where there is a typographical error, the court can make a correction consistent with a testamentary plan ascertained from the will (Matter of Herceg, 193 Misc.2d 201 [Sur Ct, Broome County 2002]; Matter of Dorson, 22 Misc.2d 945 [Sur Ct, New York County 1959]).

Here, the court cannot speculate as to the directions given by the testator as to the distribution of trust assets during the lifetime of Maxine Vogel. In limited circumstances, the court may receive extrinsic evidence to ascertain the intent of the testator at a hearing (Matter of Schaffner, 162 A.D.2d 972 [4th Dept 1990]) or in the form of an affidavit of the attorney draftsperson (Matter of Bordewick, 64 A.D.2d 183 [3rd Dept 1978]), Matter of Herceg, 93 Misc.2d 201 [Sur Ct, Broome County 2002]).

Robert A. Brady, Esq., the attorney-draftsperson, is directed to file an affidavit as to any information he has regarding the intention of the testator, within 30 days of receipt of this decision/order.

This is the decision and order of the court admission of extrinsic evidence.


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