In re Peck , 148 A.D.2d 946 ( 1989 )

Order unanimously affirmed without costs. Memorandum: The intent of the testator at the time the will was executed, as found from the surrounding circumstances, is the proper focus in construing the will (see, Morris v Sickly, 133 NY 456; Matter of Falvey, 15 AD2d 415, affd 12 NY2d 759). The evidence presented clearly supports the Surrogate’s determination that the testator’s intent was that the charitable bequest go to the local heart fund, which was the Northern New York Heart Association, Inc. The Surrogate’s decision, however, does not determine the American Heart Association’s rights, if any, to the bequest as the result of Northern’s affiliation agreement with it. In this regard, the Surrogate correctly noted that the ultimate distribution of these funds will be resolved in the pending Supreme Court action. (Appeal from order of Oswego County Surrogate’s Court, Murray, S. — will construction.) Present — Dillon, P. J., Green, Pine, Balio and Lawton, JJ.