DECISIONIncident to her accounting proceeding as administrator c.t.a. of the estate of Elizabeth Smitt, the Public Administrator of the County of New York has petitioned for construction of Article THIRD of decedent’s will, the residuary clause. The clause fails to dispose of a small portion of the residuary, and the court is asked for a determination of the proper beneficiary of the unallocated property.The language requiring interpretation is the following:“All of the rest, remainder and residue of my estate, real and personal, wherever situated and whether acquired before or after the execution of this Will, including gifts which fail through lapse or otherwise, I give, devise and bequeath to the following beneficiaries in the below-stated percentages. In the event one of them should predecease me, then I give his or her share to the others surviving, in equal shares.(1) Thirty Three Percent (33percent) to BARBARA ASCH;(2) Thirty Three Percent (33percent) to STEVEN STIPLEMAN;(3) Fourteen Percent (14percent) to RONNIE VISLOCKY of [New York];(4) Fourteen Percent (14percent) to BETTY SMITT of [New York];(5) Five Percent (5percent) to AURELIA AUGUST of [New York].”As is apparent, although the paragraph purports to dispose of “all the rest” of the estate it in fact disposes of only ninety-nine percent.Where a testator’s intent is clear from the language of the will but is thwarted by mistake a court can, in some circumstances, correct the mistake by finding a gift by implication. The doctrine is applied “[i]n rare and exceptional cases…to correct situations resulting from obvious error or omission in a will but only if the court can conclude, without hesitation, that no other reasonable inference could be drawn from the will” (Matter of Shorin, NYLJ, Nov. 12, 1996, at 1, col 1 [Sur Ct, NY County] [citations omitted]). A court will not find a gift by implication in an unambiguous will where to do so would amount to rewriting the instrument by speculating as to the testator’s intent, even if the result is a partial intestacy (Matter of Isasi-Diaz, NYLJ, Mar. 25, 2014, at 22, col. 4 [Sur Ct, NY County]). As explained, however, in Matter of Gallucci (143 AD2d 1015, 1017 [2d Dept 1988]):“[W]here a reading of the entire will reveals that the testator intended to dispose of his property in a certain manner but through error or omission failed to make clear his exact intent or purpose (see, Matter of Bellows [103 AD2d 594], supra, at 597-598)…’common sense and justice’ may compel the court to remedy the situation by finding a gift by implication (Matter of Englis, 2 NY2d 395, 402; see also, Matter of Kronen [67 NY2d 587], supra; Matter of Koellner, 121 AD2d 838, 839).”This is one of those “rare and exceptional cases” where an obvious error has frustrated the testator’s clear intent. The problem here lies not so much in an ambiguity, but in the disparity between the testator’s stated intent to dispose of her entire estate and her failure to do so. The testator defined the “rest” of her estate in considerable detail, using inclusive language which covered, for example, “gifts which fail through lapse or otherwise.” Not content to rely on the statutory default provisions of EPTL 3-3.4, she also made explicit provision for the shares of those named beneficiaries who predeceased her. These factors, and the relatively small amount left unallocated, convey her intent to dispose of her entire estate through her residuary clause rather than leave any portion to pass in intestacy. The court finds no other reasonable inference. This interpretation is also consistent with the constructional preference for avoiding intestacy, particularly when applied to a residuary clause (e.g. Matter of Fabbri, 2 NY2d 236 [1957]; Matter of Hayes, 263 NY 219 [1934]).Having determined that the residuary clause disposes of the entire estate, including the unallocated share, the court concludes that such share passes to those of the named residuary beneficiaries who survived the testator. This determination follows logically from her explicit direction that lapsed shares pass to the surviving named beneficiaries.Only two of the named remainder beneficiaries survived the testator: Barbara Asch (who has post-deceased) and Steven Stipleman. The residuary clause gives these beneficiaries equal shares of the estate, leaving no question that the missing one-percent should be divided equally between them. Equal allocation is also supported by the direction in the will that shares otherwise passing to a predeceased beneficiary be distributed equally to the surviving named beneficiaries.Accordingly, the residuary estate shall be distributed in equal shares to Steven Stipleman and to the fiduciary of the estate of Barbara Asch. The petitioner and the guardian ad litem appointed to represent unknown distributees with a potential interest in the estate concur in this result.No objections having been filed to the account, petitioner is directed to settle the accounting decree.The compensation of the guardian ad litem shall be fixed in the decree to be entered herein.Clerk to notify.Dated: November 23, 2018
