Surrogate Nora Anderson
In this construction proceeding the issue was the disposition of one half of decedent’s interest in real property. Decedent owned the property with his wife, Ethyle, as tenants in common. His will provided for disposition of the interest, in the event Ethyle survived him, to her for her life use and possession, and upon her death, to the trustees of a trust established under Ethyle’s will. Upon Ethyle’s death, after decedent’s, executors would have been able to carry out decedent’s direction, but Ethyle revoked her prior will which called for a change in the distribution scheme for her interest in the property. Petitioners offered several possible constructions of the will, favoring one that directed distribution of decedent’s interest as if Ethyle predeceased him. The court disagreed with such construction finding no basis to direct distribution under such scheme, noting there was no risk of intestacy as decedent’s will contained a residuary clause covering the exact contingency that occurred. As such, in the event Ethyle survived decedent, but deviated from their joint estate plan, decedent provided for his interest in the property to pass as part of his residuary estate to the trustees of the Coleman H. Benedict 2002 Revocable Trust.
