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Home > Underwriting > Title News > Fourteen Volume Two

SERIES: Fourteen VOLUME: Two DATED: February, 1999


The New York Court of Appeals has recently determined that a residuary estate passed to named beneficiaries under the doctrine of gift by implication where the life tenant had predeceased the testatrix (In the Matter of Bieley; 91 New York Second 520, decided May 12, 1998). In the Bieley case the facts were as follows: By a will executed in June of 1986 the testatrix, Sally Bieley, made certain detailed bequests of personal property to various cousins and several friends. The residuary clause in her will provided as follows:

"FOURTH: All the rest, residue and remainder of my estate, real, personal or otherwise and wheresoever situate, including any lapsed legacies or bequests, hereinafter called my residuary estate, shall be disposed of as follows:

(a) If my mother, Fannie Bieley, shall survive me, I give, devise and bequeath my entire residuary estate to my Executor and Trustee hereinafter named, in trust, to apply so much of the income therefrom to the support and maintenance of my said mother as my Executor and Trustee, in her absolute discretion, deems necessary or advisable, accumulating any balance of the income and adding the same to the principal...

(b) Upon the death of my said mother, the then principal shall be paid over absolutely in equal shares to such of Mary M. Schwenk and Doreen Gloria McIntosh as shall survive me and to the descendants of such as them as may predecease me, per stirpes"

The mother of the decedent, Fannie Bieley, died in July, 1989 predeceasing her daughter the testatrix, Sally L. Bieley, whose date of death was April, 1995. When the Executrix of the Sally Bieley Estate applied to the Surrogate's Court for the will's probate, the Surrogate admitted the will to probate but prohibited distribution of the residuary estate pending a determination as to the construction of the residuary clause set forth above. The Executrix contended that the testatrix's intent in her residuary clause was to create a life estate for her mother, but only if her mother survived her, and that the principal of the testamentary trust was to be paid over the named beneficiaries upon the death of the testatrix, Sally Bieley, in the event her mother predeceased her. The named devisees of the residuary estate were Ms. Schwenk, who had been the decedent's secretary and confidant during her professional career and a personal friend, and Ms. McIntosh who had cared for the testatrix's mother over a period of many years. Orans, a first cousin and intestate distributee of Sally Bieley's estate, alleged in a petition to the court that the residuary clause in Sally Bieley's will created a trust if, and only if, her mother survived her and thus any remainder interest in the principal of the trust was contingent upon the mother's survival - the failure of which destroyed that interest. Consequently, Orans asserted that, because the residuary estate had not been properly disposed of in the will, it should be distributed by intestate succession to the testatrix's next of kin, 6 first cousins with whom the testatrix, Sally Bieley, had virtually no contact.

Both the Surrogate Court and the Appellate Division found that the testamentary trust established under the residuary clause adequately provided for the distribution of the principal of that trust to Ms. Schwenk and Ms. McIntosh as set forth in the Sally Bieley will. The Court of Appeals affirmed the two lower court decisions stating that:

"This Court has long recognized that, in construing a will, the intention of the testator must be our absolute guide... It is always the effort of the Court to sustain, if possible, the will of the testator and to give force and effect to the scheme that he has devised for the benefit of those depending upon him... That intent is to be ascertained 'not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed'... Thus, were the entire will manifests a general testamentary scheme, it is 'the duty of the Courts to carry out the testator's purpose, notwithstanding that general rules of interpretation might point to a different result'... Equally well established is the axiom of testamentary construction that the testator is presumed to have intended to dispose of the entire estate by will, and did not intend intestacy as to any part of it... The presumption against intestacy is particularly weighty where the subject of the gift is the residuary estate...

Thus, where the entire will unquestionably reveals a conscientious effort to provide for a complete disposition of decedent's property, but the testator has inadvertently failed to foresee every eventuality, the presumption against intestacy must be applied and a gift by implication found. This principle still obtains although a contingency has occurred that is not expressly provided for under the will... We have no difficulty in concluding that the matter before us is one of those rare and exceptional cases where common sense and justice compel the reasoned application of the doctrine of gift by implication to redress a situation arising from obvious omission... Although article FOURTH of the will, indisputably, omitted to provide for the exact contingency which has occurred, the testatrix' dominate purpose and design to distribute her estate, thoroughly and completely, is apparent from the face of the instrument... Thus, as manifested in her will, the testatrix's dominant purpose is more than sufficiently clear: In the event that her mother survived her, the trust corpus was to remain intact and the executor and trustee directed, 'in [her] mother's best interest' to apply the income and, occasionally, discretionary sums out of the principal for her mother's support and maintenance. The gift of the residue in subpart (b) to Ms. Schwenk and Ms. McIntosh is distinctly independent of the testatrix's desire, under subpart (a), to insure adequate comfort and assistance for her mother, throughout her mother's life. Fulfillment of the latter objective (or the failure thereof by virtue of her mother predeceasing her) in no way affected the testatrix's parallel aspiration of dividing any remaining balance of her estate between her secretary - confidante and her mother's caregiver in recompense for their years of diligent and devoted service.

Respondent's [Orans] suggested alternative construction is untenable. Essentially, he argues that the testatrix intended to reserve to herself an alternate disposition of the residuary estate in the event her mother predeceased her. The limited bequest made to certain designated beneficiaries belie this construction, as does the fact that in the 6 years between her mother's death and her own, the testatrix failed to execute a new will or codicil which would have implemented such an intent if it had existed."

The Court of Appeals then held that:

"We thus conclude, through the application of the doctrine of gift by implication, that the testatrix intended to devise her residuary estate to the remainderpersons named in article FOURTH irrespective of whether her mother survived or predeceased her. Furthermore, the gift of the remainder over to the named beneficiaries is not defeated because it appears to be expressly predicated on the phrase '[u]pon the death of [the testatrix's] mother' contained in sub-part (b) of the residuary clause."

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