197 Misc. 786 | N.Y. Sur. Ct. | 1950
Deceased’s widow and the trustees of an inter vivos trust have instituted separate proceedings, each pursuant to sections 145 and 145-a of the Surrogate’s Court Act for construction of deceased’s will and for determination of the validity and effect of the widow’s election under section 18 of the Decedent Estate Law. The proceedings have been consolidated. The widow’s right to elect and the validity of her exercise of that right are not in dispute. Two issues are presented. The first is whether or not the amount of the estate tax enters into the initial computation of the elective share. The second question concerns the method of charging the elective share against the interests of legatees under the will.
Section 18 of the Decedent Estate Law grants to a surviving spouse, under certain circumstances, a personal right to elect to take his or her share of the estate of the deceased spouse “ as in intestacy The primary measure of the participation of the surviving spouse in the estate is the share in intestacy provided in section 83 of the Decedent Estate Law. It is against this measure that, in the first instance, the adequacy of any testamentary provision must be considered and the extent of • any elective share must he determined. When a will contains no benefit to the surviving spouse, the base for the computation of the elective share is the rule of intestate distribution. Paragraph (a) of subdivision 1 of section 18 of the Decedent Estate Law fixes a limitation upon the amount of any elective share by confining the elective share to one half of the net estate
It is the contention of the petitioners that the elective share, once computed, should be charged solely against the residuary estate. This contention may be sustained only if such an intention of deceased is found in his will (Matter of Goldsmith, 175 Misc. 757; Matter of Byrnes, 149 Misc. 449; Matter of Devine, 147 Misc. 273; Matter of Curley, 160 Misc. 844, supra; Matter of Litt, 73 N. Y. S. 2d 368; Matter of Topazio, 175 Misc. 132; Matter of Finkelstein, 189 Misc. 180). Deceased’s will is silent with respect to the source of the contributions required to comprise an elective share and, in fact, the will contains no reference whatsoever to the elective right of the widow. Deceased’s failure to display any indication of his intention requires the court to direct a ratable contribution in conformity with equitable principles.
It has been suggested that because deceased wanted certain of the estate taxes (although not all of such taxes) paid from the residuary estate, without apportionment pursuant to section 124 of the Decedent Estate Law, he foresaw the possibility
In support of the petitioners’ position upon the question of prorating the elective share, oral testimony was taken and documentary evidence was offered subject to motion to strike. The motion, made at the conclusion of the hearing, to strike out the testimony and the exhibits is granted. The intention of a deceased, for the purpose of construing his will, is to be gathered from the will read as a whole (Matter of Evans, 234 N. Y. 42; Matter of Schliemann, 259 N. Y. 497) and where the judicial conscience is in doubt as to the construction of a particular provision, the circumstances surrounding deceased at the time of the instrument’s execution may be considered (Matter of Smith, 254 N. Y. 283; Matter of Neil, 238 N. Y. 138; Collister v. Fassitt, 163 N. Y. 281; Bradhurst v. Field, 135 N. Y. 564) and resort may be had to facts pertaining to deceased’s fortune and family (Matter of Title Guar. & Trust Co., 195 N. Y. 339). The primary rule of construction always is that the unambiguous intention disclosed by the language of the will must prevail (Matter of Battell, 286 N. Y. 97; Matter of Durand, 250 N. Y. 45; Matter of Watson, 262 N. Y. 284) and parol evidence is never admissible to contradict the words of the will or to provide an intention that is omitted from the instrument (Matter of Smith, supra, Dwight v. Fancher, 245 N. Y. 71; Brown v. Quintard, 177 N. Y. 75; Matter of Nelson, 268 N. Y. 255; Matter of Tamargo, 220 N. Y. 225). The court is not here confronted with the task of either resolving an ambiguity or interpreting an expression lacking clarity. The complete omission from deceased’s will of any intimation as to his intent respecting the assessment of an elective share precludes resort to extrinsic proof to fill the void.
The admission of the evidence offered by the petitioners would not aid their case and would not alter the court’s determination of the issues. Nevertheless, some reference to that
The court holds that the elective share is to b'e computed in the amount to which the widow would be entitled were an intestate distribution of the estate to be made, subject to diminution only if such share of the estate should exceed the statutory ceiling contained in paragraph (a) of subdivision 1 of section 18 of the Decedent Estate Law. It is further held that the elective share is to be equitably prorated against the benefits under the will and is. not chargeable solely against the residuary legacies.
Submit decree on notice.