In re the Estate of Scale
Frederick A. Scale (hereinafter the testator) died on June 4, 2002. His last will and testament, dated April 3, 2002, was duly admitted to probate on July 30, 2002, and letters testamentary were issued to petitioner, as the named executor. Petitioner seeks a determination of the validity, construction and effect of the disposition of property contained in paragraph 2F of the testator‘s will, in which the testator devised 10% of his residuary estate to “The Audubon Society of New York State.” Both respondent Audubon Society of New York State, Inc. (doing business as Audubon International) (hereinafter the state organization) and respondent National Audubon Society, Inc. (doing business as Audubon New York) (hereinafter the national organization) claim that they were the intended beneficiary.
Finding a latent ambiguity in the clause, Surrogate‘s Court admitted extrinsic evidence and concluded that the testator intended to make a gift to the national organization. Specifically, the court relied upon an affidavit of the will drafter stating that, although the testator had “quickly, without reservation” stated upon inquiry that he intended to benefit the state organization, the testator was confused and actually intended to benefit the national organization. The state organization now appeals, arguing that Surrogate‘s Court improperly relied upon the drafter‘s affidavit and allegations of public confusion regarding the identity of the organizations to create an ambiguity when the will is unambiguous on its face. We agree.
It is well established that “in a will construction proceeding, the search is for the decedent‘s intent and not for that of the draft[er]” (Matter of Cord, 58 NY2d 539, 544 [1983] [citations omitted] [superseded by statute on other grounds]; see Matter of Carmer, 71 NY2d 781, 785 [1988]; Matter of McCabe, 269 AD2d 727, 728 [2000]). All rules of interpretation are subordinated to the requirement that we give effect to the testator‘s dominant purpose or plan for distribution as manifested in the will, and that “task is not furthered by rote ascription of technical meanings to terms regardless of context; instead, ‘a sympathetic reading of the will as an entirety’ is required” (Matter of Carmer, supra at 785, quoting Matter of Fabbri, 2 NY2d 236, 240 [1957]; see Matter of Bieley, 91 NY2d 520, 525 [1998]). Nevertheless,
Here, the testator‘s will designated “The Audubon Society of New York State” and “The World Wildlife Fund” as beneficiaries of his residuary estate, with each receiving 10% of the residuary. Although the national organization and the Attorney General in his statutory capacity under
We reject the arguments of the national organization and the Attorney General that the use of the phrase “Audubon Society” by many charities creates a latent ambiguity in this will or, presumably, any will in which money is bequeathed to a charity bearing the “Audubon Society” designation.2 Those parties rely upon the national organization‘s prior lawsuit commenced against the state organization for unfair competition due to its use of the phrase “Audubon Society,” as well as affidavits from two employees of the national organization indicating that there is public confusion over the organizations’ names. We note, however, that Supreme Court, New York County (Arber, J.), dismissed the national organization‘s claims in the prior action. As the court explained in rejecting the national organization‘s assertion that it had been harmed due to confusion over the similar names, “[courts] . . . must . . . assume that the public will use reasonable intelligence and discrimination with reference to the names of corporations with which they are dealing or intend to deal” (Police Conference of N.Y. v Metropolitan Police Conference of E. N.Y., 66 AD2d 441, 445 [1979], affd 48 NY2d 780 [1979] [internal quotation marks and citation omitted]). Similarly here, we cannot say that the use of the phrase “Audubon Society” by a large number of charities or the allegations of public confusion in the record give rise to a latent ambiguity justifying the admission of “[p]arol evidence . . . to show that the testat[or] did not mean what [he] has said in words” (Dwight v Fancher, 245 NY 71, 74 [1927]; see Matter of Lezotte, 108 AD2d 1052, 1052-1053 [1985]; Union Trust Co. of N.Y. v St. Luke‘s Hosp., supra at 334-335; cf. Matter of Van Vliet, 224 NY 572, 572 [1918];
Accordingly, we agree with the state organization that Surrogate‘s Court erred in relying upon the affidavit of the will drafter, in which he speculated based upon his discussions with the testator that, notwithstanding the testator‘s unequivocal statement that he wished to donate to the state organization, the testator actually intended to benefit the national organization.3 In this regard, we note that “if courts should permit the substitution of the draft[er‘s] recollection of what the testator told him [or her], for the language of the will itself, the instrument would cease to be the repository of the decedent‘s testamentary program” (Matter of Storrs, 18 Misc 2d 941, 944 [1959]; see Matter of Campbell, 171 Misc 2d 892, 902-903 [1997]). Rather, as we have previously explained, “extrinsic evidence may not be used in this fashion to create an ambiguity in a will where none [exists]” (Matter of Wickwire, supra at 662). In short, as the will unambiguously dictates, the legacy must be paid to the state organization expressly named therein.
The state organization‘s remaining argument has been rendered academic by our decision.
Cardona, P.J., Carpinello, Mugglin and Lahtinen, JJ., concur.
Ordered that the order and decree is reversed, on the law and the facts, with one bill of costs, and matter remitted to the Surrogate‘s Court of Albany County for further proceedings not inconsistent with this Court‘s decision.