Petitioner Lawrence Biggio, executor of the estate of Phyllis Biggio, filed this proceeding asking this Court for an Order of Construction that directs Maryellen Williamson, Carol Eglinton and Lawrence G. Biggio be the sole beneficiaries of the residuary of the above-captioned estate. All interested parties have filed waivers and consents to this proceeding, and no objections were filed.Phyllis Biggio died a resident of Richmond County on August 22, 2015. By decree dated July 19, 2018, decedent’s Last Will and Testament dated May 27, 2010 (the “Will”) was admitted to probate. Pursuant to the Will, distribution was delineated as follows:(a) A specific cash bequest of $5,000.00 was to be paid to John Biggio, the decedent’s husband’s nephew; and(b) The remainder was devised in four shares: one-quarter to decedent’s friend, Maryellen Williamson; one-quarter to decedent’s friend, Carol Eglinton; one-quarter to decedent’s stepson, Lawrence G. Biggio, petitioner and executor; and one-quarter to a Frank Lucia, testatrix’s step-grandson, as trustee, for the benefit of Kathleen A. Cardero, decedent’s stepdaughter and Lucia’s mother. Upon the death of Kathleen A. Cardero, the remaining trust principal and income was to be distributed to the issue of Kathleen A. Cardero, with the exception of Kathleen Salinas, who was to be treated as predeceasing the testatrix.At the time of her death, all beneficiaries were alive with the exception of John Biggio and Kathleen A. Cardero. The gift to John Biggio, who predeceased, was a specific bequest and therefore lapses since EPTL 3.3.3. does not apply. However, the question of construction arises with the one-quarter bequest to Kathleen A. Cardero, who predeceased the testatrix and whose trust was never created.On May 30, 2012, Kathleen A. Cardero predeceased the testatrix leaving two children, Kathleen Salinas and Frank Lucia. Pursuant to the Will, Kathleen Salinas was to be treated as predeceasing testatrix, a contingency which did actually occur on June 3, 2014. Kathleen Salinas left her husband and two children as her beneficiaries. The question presented is whether by predeceasing the testatrix, does the one-quarter residuary gift to a supplemental needs trust for Kathleen A. Cardero fail and the one-quarter residuary gift is then distributed amongst the three remaining residuary beneficiaries, or does the gift accelerate to the intended trust recipients, the issue of Kathleen A. Cardero, Frank Lucia, and not the predeceased Kathleen Salinas.In constructing a will, this Court must take into account the intent of testatrix. Williams v. Jones, 166 NY 522 (1901). Discerning the intent of the testatrix is a process which requires a reading of the will, including the scheme of distribution devised, and all the surrounding facts and circumstances. Matter of Fabbri, 2 NY 2d 236 (1957). It is important to note whether the testatrix had intended to distribute her entire estate by this testamentary instrument and did not account for one specific occurrence. Matter of Dammann, 12 NY 500 (1963). The doctrine of gift by implication allows the court to “give effect to an intention or purpose, indicated by implication, where the express language of the entire will manifests such an intention or purpose’ and the testator has simply neglected to provide for the exact contingency which occurred.” Matter of Selner, 261 App.Div. 618, 620 (2d Dept 1941); see also, Matter of Bellows, 103 AD 2d 594 (1984).In Matter of Bieley, 91 NY2d 520 (1998), the testamentary instrument created a residuary estate to be held in trust for the life of the testatrix’s mother, if she survived the testatrix, and upon the death of her mother, the principal was to be paid over in equal shares to two delineated beneficiaries. The Court of Appeals affirmed the Appellate Division holding that despite the survival language in the testamentary instrument, the testatrix “intended to devise her residuary estate to the remainder-persons [outlined to take after the mother's death] irrespective of whether her mother survived or predeceased her.” It was clear that the testatrix intended to survive her mother and did not account for her mother’s demise prior to her own.The facts herein are similar. The Will provided for a compete testamentary scheme. The testatrix’s choices were specific. The testatrix herein devised the residuary portion of her estate to her stepson, two friends and her predeceased stepdaughter. Therefore, she accounted for her stepchildren, equally.The only limiting language on the gift to stepdaughter was the creation of a supplemental needs trust, created specifically to avoid interference with any benefits the stepdaughter was receiving as a result of her disability. This limitation did not limit the distribution of the gift, merely its presentment.Furthermore, the testatrix allowed for distribution of the trust proceeds upon the death of Cardero, that it would be distributed to Cardero’s issue. However, the testatrix specifically disinherited Kathleen Salinas, Cardero’s daughter, by treating her as predeceasing the testatrix, even though as it played out, Salinas did predecease the testatrix. However, the testatrix did not define what would happen if Cardero predeceased her. This is quite similar to Bieley, supra, except in Bieley, the testatrix did not account for her mother’s demise prior to her own. Here, the testatrix did not account for her younger stepdaughter’s demise, an understandable oversight.If the testatrix wished Cardero’s share to fall to the remaining three residuary beneficiaries, she could have so stated, she did not. Instead, she defined a class of Cardero’s issue to take upon Cardero’s death. Pursuant to the Will, Kathleen Salinas was to be treated as predeceasing the testatrix. As such, her gift lapses and the class of issue is closed with Frank Lucia as the only beneficiary. EPTL §3.3.3 does not otherwise apply.Therefore, utilizing the doctrine of gift by implication, the testatrix’s intention provides for the estate residuary to be distributed as follows: one-quarter to Lawrence Biggio, one-quarter to Maryellen Williamson, one-quarter to Carol Eglinton, and one-quarter to Frank Lucia, issue of Kathleen A. Cardero.This constitutes the decision and order of the Court.Dated: June 7, 2019
