In re the Estate of Bonanno
OPINION OF THE COURT
Pеtitioners move for summary judgment in this construction proceeding seeking that Article Third (a) of decedent’s last will and testament be interpreted to provide that decedent’s four children each own a one quarter interest in improved real property in fee simple absolute, as tenants in common, without restriction.
The salient facts are as follows:
Decedent died on August 29, 2002 survived by four children. Her two daughters, Giovanna and Angela, are the petitioners herein, and her son, Bennett, is the objectant. Decedent’s other son, Simone, is the executor under decedent’s will. While it appears that Simone may have served an answer to the petition, it was not filed with the court. An affidavit in support of petitioners’ motion, however, has been filed by Simone.
Decedent’s will is dated August 1, 1983, and it was admitted to probаte on October 24, 2002.
Article Third (a) of the will is part of the residuary clause and provides as follows:
“I devise my house and premises described as and known as number 65-26 Myrtle Avenue, Glendale, County of Queens, City and State of New York, to my children, SIMONE BONANNO, BENNETT BONANNO, ANGELA BONANNO and GIOVANNA BONANNO, share and share alikе.
“However, I direct that the said dwelling and premises be not sold during the time when any one of my children is single and not married; and that any one of them resides in the said property. It is my wish and I direct that the property be retained as a home and place of rеsidence for any one or ones of my single and unmarried child or children. The single child or children only are to receive the income from the property and to pay all the ex*631 penses and carrying charges to maintain the property. At the еnd of the year, any surplus is to be divided into four shares.
“If any one of my children marries and later the marriage is nullified or terminated, then said child shall be considered as being single and may return to live in the above said housing accommodations.
“I further direct that, when all of my children are married or when all of the children leave the above house and live elsewhere, whether they be married or single, the said property at 65-26 Myrtle Avenue, Glendale, New York, is to be sold for the best available price and the proceeds to be divided equally among my four children.”
The subject premises consist of a ground floor storefront, a second floor apartment, and a third floor apartment.
When the will was executed, none of decedent’s children were married. At the time of decedent’s death in 2002, Simone and Giovanna were not residing at the premises, Angela was married and resided in the third floor apartment, and Bennett resided in the second floor apartment. Angela and her spouse subsequently moved out of the premises sometime shortly after 2002. Bennett, who had been married in 1991 and briefly lived elsewhere, was residing with decedent in the second floor apartment, and had done so from the time of his separation from his wife in 1993 and subsequent divorce. Bennett’s continued residence in the second floor apartment is the genesis of this litigation.
Petitioners contend that the second through fourth paragraphs of the quoted article should be declared invalid, claiming they violate the common-law rule prohibiting unreasonable restraints on the alienation of real property; they improperly impose limitations on petitioners’ fee simple absolute interests in the property; they impose conditions designed to discourage marriage in contravention of public policy; and they are ambiguous, vague, unclear or indefinite and contradicted by later provisions of the will granting the executor the right to sell all property in his discretion.
Objectant, on the other hand, argues that the challenged paragraphs do not impose an improper limitation on petitioners’ interests, nor do they create an unlawful restraint on the alienation of the property or on marriage. He further argues that the provision in the will enumerating the executor’s pow
It is well established that in construing a will the intention of the testator must be the court’s “absolute guide” (Matter of Bieley,
Petitioners’ arguments are essentially based on the proposition that the first paragraph of Article Third (a) unambiguously devises a fee simple absolute interest in the real property to each of decedent’s children and, therefore, the provisions contained in the seсond through fourth paragraphs are repugnant to the nature of their fee simple absolute interests.
As noted, the first paragraph of Article Third (a) in pertinent part provides “I devise my house and premises ... to my children . . . share and share alike.” Arguably, this language, when read out of context without regard to the remainder of the article, expresses an apparent absolute gift to each of the children of an equal common interest in the property in fee simple. But the article does not end there, and the term “devise” does not necessarily import a fee (see Kirchhof v Ramsey,
It has been held that where a will contains words constituting an absolute gift, followed by words which disclose an intention to cut it down, but which are not clear and unmistakable in their import, the courts favor giving effect to the absolute gift (Matter of Parant,
Here the imperative terms used in the second through fourth paragraphs cleаrly indicate that decedent intended to limit the gift to the children by directing that the premises not be sold during the continued occupancy of unmarried children, and by further directing that when the property was no longer the residence of any of the children it then be sold and the proceeds divided equally (see Matter of Ithaca Trust Co.,
The language of the paragraphs following the first paragraph is sufficiently clear and explicit to limit the estate and indicate that it was decedent’s intent that her four children each have an equal monetary interest in the premises, subject to the occupancy of one or more unmarried child, until the premises were vacated. The decedent’s purpose is clear: to provide beneficial use of the property for any one оr more of her children while they are unmarried and are not residing elsewhere, to divide the surplus of the rents and profits after expenses equally, and upon the happening of all the children being married or residing elsewhere, to have the propеrty sold and the proceeds divided equally among her four children.
Although a condition in a will which is calculated to induce a beneficiary to live in celibacy or to procure a divorce is void (see Matter of Liberman,
While it is clear that decedent’s intention was to assist in her unmarried children’s support and maintenance by providing them a place to reside, it is equally clear that decedent expected that all her children would either marry or, at some point, choose to reside elsewhere and, therefore, the premises would no longer be needed as a residence. This is demonstrated by the use of the phrase “when all of my children are married or when all of the children leave the above house and live elsewhere” in the fourth paragrаph, coupled with the direction that the premises be sold and the proceeds divided among her children. Thus it is manifest that decedent did not intend to create a life estate for any of her children, but only a personal privilege to occupy thе premises.
It seems quite appropriate that the decedent’s direction to sell the premises and divide the proceeds was intended to serve as a convenient method of severing her children’s interests when the property would no longer be the “homestead” of any of the children.
Despite the use of the word devise in the first paragraph of Article Third (a), a reading of the entire will as a whole shows that it was not decedent’s intent to make an absolute devise in fee of the property tо her children. Rather it was decedent’s intent that the premises be sold and the proceeds thereof be distributed. The children are granted, upon the death of the decedent, an equal present vested interest in the proceeds of the premises, together with the net income derived from the premises, subject to the right of any one or more of them to occupy the premises upon the conditions contained in paragraphs two through four of the article, and further subject to the power of the executor to sell the property when the conditions are no longer met.
Petitioners further argue that the provisions in Article Fifth of the will granting the executor the power to sell, mortgage or lease all of decedent’s real property in his discretion expressly contradicts the extended use and delayed sale of the premises provided for in Article Third (a), and, since it appears later in the will, the provisions of Article Fifth supersede the earlier provisions of Article Third (a) and render them void.
There is a rule of construction that states where clauses of a will are inconsistent and cannot be reconciled so as to stand
The postponement of the sale of the premises for the benefit of the unmarried children does not create an illegal suspension of ownership nor an unreasonablе restraint of alienation. Since the term of occupancy may be immediately terminated at the will of the occupant, there is nothing which prevents the acceleration of the sale by the consent of all the children.
Upon the foregоing, the motion seeking a determination of Article Third (a) of decedent’s will holding that decedent’s four children each own a one quarter interest in real property known as 65-26 Myrtle Avenue, Glendale, New York, in fee simple absolute, as tenants in common, without restriction or right to occupy is denied.