29 N.Y.S.3d 100
N.Y. Sur. Ct.2016Background
- Decedent (d. 2002) left a will (Aug. 1, 1983) devising 65-26 Myrtle Avenue to her four children “share and share alike.”
- Article Third (a) first paragraph appears to give equal devises; subsequent paragraphs restrict sale and grant occupation/use to any unmarried child(ren), direct surplus rents divided into four shares, and require sale when all children are married or all live elsewhere.
- At decedent’s death: Angela was married (then moved out), Bennett lived in the second-floor apartment (divorced/separated), Simone was executor, Giovanna and Simone not residing on premises. Petitioners are Giovanna and Angela; Bennett is objectant.
- Petitioners moved for summary judgment seeking declaration that each child holds a one-quarter fee simple interest as tenants in common, without occupancy restrictions.
- Objectant argued the later paragraphs create a limited interest (occupancy privilege and vested monetary interest), not an absolute fee, and that executor powers do not negate Article Third (a).
- Court admitted the will to probate and considered whether the later paragraphs defeated an apparent absolute devise by imposing permissible limitations.
Issues
| Issue | Petitioners' Argument | Objectant's Argument | Held |
|---|---|---|---|
| Whether Article Third (a) creates fee simple absolute interests in each child | The opening devise "to my children share and share alike" is an absolute gift of one-quarter fee simple to each child | The subsequent paragraphs limit the devise to a present vested monetary interest plus occupation privileges; not an absolute fee | The later paragraphs use imperative, clear language limiting the devise; no fee simple absolute was created |
| Whether restrictions constitute an unreasonable restraint on alienation | Restrictions are repugnant to fee simple and violate rule against restraints on alienation | The occupancy/postponed-sale scheme is terminable and does not unreasonably restrain alienation | Not an illegal restraint—term can be ended by occupant or by consent, so sale can be effectuated |
| Whether the provisions unlawfully discourage marriage or promote divorce | Conditions (prevent sale while children single) penalize marriage and are void as against public policy | The provisions protect unmarried children’s residence and are triggered by living elsewhere, not marriage; they don’t induce divorce | Not against public policy—court finds no intent to discourage marriage or induce divorce |
| Whether Article Fifth (executor’s broad power) overrides Article Third (a) | Article Fifth’s later grant to executor to sell/mortgage/lease supersedes earlier delayed-sale scheme | Executor’s general statutory powers do not negate the specific, clear limitations in Article Third (a) | Article Fifth does not supersede Article Third (a); the specific delayed-sale limitation stands |
Key Cases Cited
- Matter of Bieley, 91 NY2d 520 (testator’s intention is the court’s absolute guide)
- Matter of Carmer, 71 NY2d 781 (will must be read as an entirety to ascertain intent)
- Matter of Fabbri, 2 NY2d 236 (dominant purpose of will controls interpretation)
- Matter of Walker, 64 NY2d 354 (individual parts read in relation to testator’s purpose)
- Tillman v. Ogren, 227 NY 495 (decisive language can cut down an apparent absolute gift)
- Matter of Ithaca Trust Co., 220 NY 437 (limitations directing sale upon certain events are effective)
- Matter of Liberman, 279 NY 458 (conditions that induce celibacy or divorce are void)
- Van Nostrand v. Moore, 52 NY 12 (later inconsistent clauses may prevail, but rule is last resort)