In re the Estate of Feuer , 622 N.Y.S.2d 619 ( 1995 )

Cardona, P. J.

Appeal from a decree of the Surrogate’s Court of Schenectady County (Mazzone, S.), entered December 30, 1993, which construed paragraphs five and six of decedent’s last will and testament.

Decedent, Fred Feuer, died March 7, 1992 at 80 years of age following a protracted illness. He was survived by his wife of nearly 34 years, Frances Feuer (hereinafter Feuer). The couple had no children. Decedent left a will dated May 23, 1969 which nominated Feuer as executrix. Decedent’s will was admitted to probate on April 7, 1992 and Feuer was appointed executrix. In paragraph two and three, decedent’s will made specific bequests of $25,000 to his sister, petitioner Betty Sealove, and $50,000 in a testamentary trust to benefit his father, Jacob Feuer. Jacob Feuer predeceased decedent. Paragraphs five and six contain the residuary and alternate residuary clauses which are central to this will construction proceeding.

Paragraph five provides: "All the rest, residue and remainder of my estate, of every sort, nature and kind, real, personal or otherwise, and wheresoever situate, of which I die seized or possessed, or over which I have any power of disposition by Will, I give, devise and bequeath to my wife, francés feuer, to be hers absolutely and forever.”

Paragraph six provides in pertinent part: "In the event my wife should predecease me, or in the event my wife and I shall die by reason of common accident, illness, epidemic, catastrophe, or otherwise simultaneously or within a short time of each other, or before my said spouse has had the beneficial use of my estate, I then give, devise and bequeath my entire estate as follows”. The sixth paragraph lists two cousins who receive $5,000 each, five charities which receive $1,000 each and the remaining residuary is divided between decedent’s family and Feuer’s family as follows: 40% to Sealove, 20% to decedent’s niece, petitioner Sandra Jenkins, 20% to Feuer’s nephew, respondent Peter A. Kaufman, and 20% to Feuer’s niece, respondent Randy A. Kaufman.

Feuer died on June 25, 1992, 110 days after decedent. She left a will dated June 13, 1992 which has also been admitted to probate. Feuer’s will specifically bequeaths $100,000 each to her niece and nephew, Randy Kaufman and Peter Kaufman, and $1,000 each to four charities. The remainder of her estate is left in trust for the benefit of her brother, respondent Leonard Kaufman, and his wife, respondent Joy Kaufman, with the balance upon their deaths to be divided equally by their children, Randy Kaufman and Peter Kaufman. On August 20, 1992, Randy Kaufman succeeded Feuer as administratrix of decedent’s estate. She is also the executrix of Feuer’s estate.

In December 1992, petitioners commenced this construction proceeding claiming Feuer died within a "short time” after decedent and before having had "beneficial use” of decedent’s estate within the meaning of paragraph six of decedent’s will. Surrogate’s Court found that Feuer never had the beneficial use of decedent’s estate and therefore was divested of her residuary legacy. Respondents appeal from the decree which distributed decedent’s estate in favor of petitioners pursuant to paragraph six.

Initially, we reject petitioners’ claim that Feuer’s death 110 days after decedent satisfied the "within a short time” contingency of paragraph six. The phrase "within a short time” must be read as referring to a situation where Feuer and decedent died as a result of a common cause although not simultaneously, a period "measured by hours or days rather than by weeks” (Shippee v Shippee, 122 NJ Eq 570, 572, 195 A 728, 729). This appeal therefore distills to one issue: whether Feuer had beneficial use of decedent’s estate prior to her death. Resolution of this issue turns upon the construction of "beneficial use”. It is settled law that a will must be interpreted to reflect the actual intention of the testator, ascertained through a reading of the entire document (see, Matter of Philbrook, 207 AD2d 603, 604). "If, upon reading the will, it reveals a ' "dominant purpose or plan of distribution” ’, the individual parts must be interpreted in light of that plan of distribution” (Matter of Sprinchorn, 151 AD2d 27, 29, quoting Matter of Larkin, 9 NY2d 88, 91, quoting Matter of Fabbri, 2 NY2d 236, 240). We find that decedent’s intent to give his estate to Feuer was clearly expressed (see, Matter of Philbrook, supra) and that he only meant to divest her of the residuary legacy if she did not survive him long enough to acquire the right to use property in his estate. We reject, as unduly restrictive, petitioners’ argument that Feuer could not have had beneficial use of assets in the estate until legal title vested in her. No language in decedent’s will required her to receive distribution of the assets in order to preserve her residuary legacy. Following admission of decedent’s will to probate, Feuer was entitled, upon proper application to the court, to obtain advance payments against her claimed beneficial interest (see, SCPA 2102 [5]; Matter of Goldman, 150 AD2d 267). From that point she acquired a legal, enforceable right to use assets in decedent’s estate if the need arose. Decedent’s intention to make Feuer the residuary legatee of his estate should not be frustrated simply because she did not exercise the right to use property in the estate prior to her death.

Casey and Peters, JJ., concur.