By Order to Show Cause, Petitioner Nancy Oliveras, Executrix of the Estate of Efrain Arzola petitions for a construction of the residuary paragraph of the Last Will and Testament of Efrain Arzola (the “Will”) as per the Court’s directive in its Decree Granting Probate dated July 10, 2019 (Brown, Acting Surrogate). The Verified Petition is unopposed. The residuary paragraph (paragraph “THIRD”) of the Will provides that all residue/remainder of the Decedent’s property be shared by his children, “Efrain Arzola, Jr., Robert Arzola and Nancy Oliveras, share and share alike, to be theirs absolutely, and to the issue of such child of mine who shall not survive me, per stirpes.” The Petitioner notes that the Will omits any reference to the testator’s fourth child, Lourdes Seligman. Lourdes Seligman predeceased the testator, leaving surviving issue/children named Kenneth Seligman and Dori Fisher. Petitioner argues that the testator intended that the Will’s reference to surviving issue of his children only pertains to the issue of his children expressly named in the Will (i.e., Efrain Arzola, Jr., Robert Arzola and Nancy Oliveras) and not the issue of Lourdes Seligman, who was omitted from the Will. The issue before the Court is to determine the meaning and application of the phrase “such child of mine” as it is employed in paragraph THIRD of the Will. ANALYSIS In a will construction proceeding, the ascertainment and implementation of testamentary intent is to be gleaned, if possible, from within the four corners of the will itself and extrinsic evidence will not be admissible to vary or contradict the unambiguous expression of the decedent. Matter of Cord’s Estate, 58 NY2d 539, 544 (1983). The best indicator of the testator’s intent is found in the clear and unambiguous language of the will itself. In re Estate of Scale, 38 AD3d 983, 985 (3d Dept. 2007). The words used by the testator are to be given effect through their plain and ordinary meaning: Where the language used in the will has a clear meaning it must be accepted as disclosing the intent and this intent should be upheld if consistent with the rules of law. The court should not construe a will contrary to the ordinary meaning of the language used, upon conjecture as to intent, or upon suspicion that the testator did not understand the expressions used. Where there is no ambiguity, either patent or latent, there is no field open for construction of the will. In re Rose’s Estate, 58 Misc 2d 576, 579 (Sur. Ct., New York Co.), aff’d sub nom. Matter of Rose’s Will, 29 AD2d 635 (1st Dept. 1967), aff’d sub nom. In re Rose’s Will, 23 NY2d 870 (1969). Only where the testator has manifested his/her intention in the will itself to give words a different meaning should a court deviate from the primary and ordinary meaning of the words used. In re Thompson’s Estate, 4 NYS 451, 452 (Sur. Ct., New York Co., 1889). Here, the testator disinherited his daughter, Lourdes Seligman, by omitting her from the Will. While disinheritance by omission is a valid method by which to disinherit someone, it is a riskier method than others (e.g., specific disinheritance clauses, nominal bequests with a nocontest clause, etc.) because it can give rise to objections that (1) the testator left the person out by mistake and that the testator did not intend disinheritance and/or (2) the testator may have forgotten who the family members were, and may, therefore, not have been competent when the will was executed. Disinheritance of a relative other than a spouse, NY Elder Law Practice §22:11 (2020 ed.). Here, however, Lourdes Seligman’s affected issue (i.e., the testator’s grandchildren, Kenneth Seligman and Dori Fisher) have neither objected to the Will nor opposed this construction proceeding. This proceeding focuses on the Will’s use of the phrase “such child of mine” in paragraph THIRD. Paragraph THIRD provides that if a testator’s child predeceased him, then “such” child’s issue should inherit the child’s share of the testator’s property. That provision is potentially triggered here because Lourdes Seligman (a child of the testator, with issue) has predeceased the testator. The question is whether the testator intended his reference to “such child of mine” in paragraph THIRD to exclusively refer to the children that he expressly listed above in paragraph THIRD (omitting any reference to daughter Lourdes Seligman) or to refer to all known children of his (including his omitted daughter, Lourdes Seligman). The Merriam-Webster Dictionary defines the word “such,” in the adjective form, as “of the character, quality, or extent previously indicated or implied” and “of the same class, type, or sort.” Therefore, by its plain and ordinary meaning, the use of “such” in the phrase of “such child of mine” in paragraph THIRD clearly and directly refers to the class or list of the three children previously indicated above in paragraph THIRD and not to Lourdes Seligman or her issue, who do not appear in the Will. There is no other language in the Will that seeks to change the plain and ordinary meaning of the word “such” or the phrase “such child of mine” as used in paragraph THIRD. Thus, from the plain and ordinary meaning of the language used within the Will, the Court concludes that the testator intended his express bequest of residue to his children, Efrain Arzola, Jr., Robert Arzola and Nancy Oliveras, to be distributed to their issue if “such child” predeceased him, and no one else.1 Furthermore, in the absence of any express bequest to Lourdes Seligman, the language of the Will does not evince any other intent by the testator for the surviving issue of Lourdes Seligman to receive property under the Will. See, e.g., Cent. Tr. Co. v. Richards, 35 Misc. 247 (Sup. Ct., New York Co., 1901) (in determining the intent of a testator in a construction proceeding, noting that “If the parents were not to have received shares under the will, surely their issue would have nothing to receive.”). Finally, since the testator’s intent can be ascertained from within the four corners of the Will itself and there is no ambiguity therein, there is no need or opportunity to resort to the extrinsic evidence offered by the Petitioner. In re Chernik, 150 AD3d 728, 730 (2d Dept. 2017). For the above-stated reasons, the Verified Petition herein is granted. Submit Decree in conformity with this Decision and Order. This constitutes the Decision and Order of this Court. Dated: September 9, 2020
