Surrogate Robert Gigante
Executrix sought construction of the will to include a gift by implication of the residuary to her. Decedent’s sister argued it was inappropriate to find a gift by implication, alleging the residuary must be distributed under the laws of intestacy. Decedent and her husband executed identical wills leaving their estates to each other, but decedent’s will failed to make any provision for distribution of her estate if her husband predeceased her, as here. The court stated where the express language of the entire will revealed the testator’s intention or purpose, the possibility followed that the testatrix may dispose of property by implication, as well as formal disposition. It noted the implications must be a necessary one, not on that was merely possible or probable, and must leave no hesitation in the court’s mind as to what the testatrix’s dominant purpose was. Hence, the court stated where the will unquestionably revealed a conscientious effort to provide for a complete disposition of decedent’s property, but testator inadvertently neglected to foresee every contingency, the presumption against intestacy may be applied and a gift by implication found. It found conflicting issues of fact existed regarding the testator’s intent, denying the motion and cross-motion for summary judgment.
