Surrogate Nora Anderson
In this uncontested construct proceeding, petitioner executor, the testator’s daughter, sought a decision on the validity, construction and effect of Article Second of the will. Petitioner argued the will allowed her to maintain sole ownership of the subject premises as long as she did not sell or transfer title during her lifetime. She also argued that any sale or transfer was within her discretion, and if she did not sell the property, it was hers to devise to her heirs. The court noted a "sympathetic reading" of the subject provision disclosed a primary objective: permitting petitioner use of the property as long as she wished; and also a secondary objective: when the property was no longer put to petitioner’s use, that its economic value be received by designated individuals, of whom petitioner was only one. It stated that to accept petitioner’s claim giving her the property outright would ignore the testator’s secondary objective to benefit other designated individuals. The court found petitioner’s position ignored the provision’s reference to a statute that governed the conduct of a fiduciary, confirming that the devise to petitioner was intended as a transfer to her in the capacity of a fiduciary for others.
