SUPREME COURT OF THE STATE OF NEW YORK

 Appellate Division, Fourth Judicial Department

614 

CA 13-01772 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. 

 

IN THE MATTER OF THE ESTATE OF JOHN WAGNER, 

DECEASED. 

-------------------------------------------- 

CANANDAIGUA NATIONAL BANK AND TRUST COMPANY, 

PETITIONER-RESPONDENT; 

 MEMORANDUM AND ORDER

SALLY BAUMANN, OBJECTANT-RESPONDENT; 

 

COLIN DESROSIERS AND MICHELLE DESROSIERS, 

OBJECTANTS-APPELLANTS. 

(APPEAL NO. 2.) 

LACY KATZEN LLP, ROCHESTER (RACHELLE H. NUHFER OF COUNSEL), FOR 

OBJECTANTS-APPELLANTS. 

LAW OFFICE OF HEIDI W. FEINBERG, ROCHESTER (HEIDI W. FEINBERG OF COUNSEL), 

FOR PETITIONER-RESPONDENT.

WOODS OVIATT GILMAN LLP, ROCHESTER (RENÉ H. REIXACH OF COUNSEL), FOR 

OBJECTANT-RESPONDENT. 

 

Appeal from a decree of the Surrogate=s Court, Monroe County (Edmund 

A. Calvaruso, S.), entered September 3, 2013. The decree granted the 

petition to terminate a testamentary trust and ordered that the remaining 

balance of the trust be delivered to Sally Baumann. 

It is hereby ORDERED that the decree so appealed from is modified 

on the law by vacating the third decretal paragraph and as modified the 

decree is affirmed without costs, and the matter is remitted to Surrogate=s 

Court, Monroe County, for further proceedings in accordance with the 

following Memorandum: Petitioner and trustee Canandaigua National Bank 

and Trust Company (CNB) commenced this proceeding in Surrogate=s Court 

to terminate the testamentary trust of decedent John Wagner pursuant to 

EPTL 7-1.19 as uneconomical. Decedent=s grandchildren, i.e., the 

objectants-appellants herein (hereafter, grandchildren), moved for 

summary judgment seeking the principal of the trust, and Sally Baumann 

cross-moved for the same relief. Article V (B) of decedent=s will 

established a trust for Baumann=s benefit during her lifetime, permitting 

Baumann to live in decedent=s residence and to receive the net income from 

the trust, and authorizing CNB, in its discretion, to use the principal 

for capital improvements to the residence. Decedent granted Baumann no 

right to the trust principal, but provided that, upon Baumann=s death, 

the remaining trust principal, i.e., the property funding the trust, would 

be distributed to decedent=s grandchildren, per stirpes. 
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Article VII (E) of decedent=s will provided that, if Aany trust@ were 

terminated as uneconomical, the trust assets would be distributed to the 

Aincome beneficiary or beneficiaries@ at the time of termination. It is 

undisputed on appeal that the subject trust was terminated as uneconomical 

pursuant to EPTL 7-1.19 because the costs of administering the trust 

exceeded the income generated by the trust. 

In appeal No. 1, the grandchildren appeal from an order granting 

CNB=s petition to terminate the trust and directing that the trust principal 

be distributed to Baumann and, in appeal No. 2, they appeal from the decree 

entered upon that order. As a preliminary matter, we note that, inasmuch 

as the order in appeal No. 1 is subsumed in the decree in appeal No. 2, 

we dismiss the appeal from the order in appeal No. 1 (see CPLR 5501 [a] 

[1]; SCPA 2701 [1] [b]; Matter of Kalkman [Coulter], 77 AD3d 1287, 1289).

We agree with the grandchildren that the Surrogate erred in granting 

Baumann=s cross motion for summary judgment and in directing that the trust 

principal be distributed to her. In determining the distribution of 

assets upon termination of an uneconomical trust, we must Aeffectuate 

the intention of the creator@ of the trust (EPTL 7-1.19). In determining 

decedent=s intention, we must engage in Aa 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@ (Matter of Fabbri, 2 NY2d 236, 

240; see Matter of Sawyer, 4 AD3d 800, 801-802). If a Adominant purpose@

can be discerned from reading the will, the individual provisions of the 

will must be read and given effect in light of that purpose (see Fabbri, 

2 NY2d at 240). A >[W]here a will is capable of two interpretations, the 

one should be adopted which prefers persons of the testator=s blood= @

(Matter of Symonds, 79 AD2d 24, 26). 

Here, there are two provisions in the will regarding the distribution 

of the trust principal. Article V (B) (4) provides that, upon the 

beneficiary=s death, the property of the trust is to be distributed equally 

to the grandchildren. Article VII (E), however, states that the trustee 

may terminate any uneconomical trust and distribute the assets of the 

trust to the current income beneficiary, i.e., Baumann. We conclude that 

decedent intended to benefit both Baumann and the grandchildren and, thus, 

that the Surrogate erred in awarding the entire trust principal to Baumann. 

We also recognize, however, that decedent intended the trust to benefit 

Baumann during her lifetime and, thus, that the trust principal cannot 

be awarded entirely to the grandchildren. In light of those competing 

interests, we remit the matter to Surrogate=s Court to determine A[t]he 

distribution of the trust assets . . . in such manner, proportions and 

shares as in the judgment of the court will effectuate the intention of 

the creator@ (EPTL 7-1.19 [a] [2]).

All concur except PERADOTTO and LINDLEY, JJ., who dissent and vote to 

affirm in the following Memorandum: We respectfully dissent. In our 

view, Surrogate=s Court properly determined that the language of decedent=s 

will is clear and unambiguous, and that the will must therefore be enforced 

according to its terms. We would thus affirm the decree in appeal No. 

2. It is well settled that Atestamentary instruments are strictly 

construed so as to give full effect to the testator=s clear intent@ (Matter 

of Covert, 97 NY2d 68, 74; see Matter of Murray, 84 AD3d 106, 113, lv 
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CA 13-01772 

denied 18 NY3d 874), and that the best evidence of the testator=s intent 

is found in the clear and unambiguous language of the will itself (see 

Matter of Walker, 64 NY2d 354, 357-358; Matter of Cord, 58 NY2d 539, 544, 

rearg denied 60 NY2d 586). Although the testator=s intent Amust be gleaned 

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@ (Matter of Fabbri, 2 NY2d 

236, 240; see Matter of Brignole, 32 AD3d 538, 538-539), a court Amay 

not rewrite a will >in order to give effect to an intention which possibly 

the testator may have had but which is not revealed by the language used 

in the will= @ (Matter of Rutherford, 125 AD2d 312, 313, quoting Matter 

of Nelson, 268 NY 255, 258; see Matter of Cincotta, 106 AD3d 998, 998, 

lv denied 22 NY3d 857). 

Here, unlike the majority, we perceive no conflict between article 

V (B) of decedent=s will and article VII (E). Article V (B) provides, 

inter alia, that the trust Abeneficiary[, i.e., Sally Baumann,] shall 

retain no right to receive the trust principal or to have my Trustee 

distribute the trust principal to the beneficiary for her benefit or her 

estate,@ and that, upon Baumann=s death, the Aremaining trust property@

shall be distributed in equal shares to decedent=s grandchildren, i.e., 

the objectants-appellants herein (hereafter, grandchildren). Article 

VII (E) provides that, if the Trustee terminates the trust because it 

is uneconomical, the assets of the trust shall be given to Athe current 

income beneficiary[, i.e., Baumann,] or beneficiaries in the proportions 

in which they are entitled to the income therefrom.@

The two articles may be read in harmony as providing that, if the 

trust exists upon Baumann=s death, the trust principal shall go to the 

grandchildren, but that the principal shall go to Baumann if the trust 

is terminated as uneconomical while Baumann is still alive. We thus agree 

with the Surrogate that a Aplain reading of the Will compels a logical 

progression that once the Trust is collapsed, the prohibition against 

principal distributions is no longer operable and the corpus on hand is 

payable to the Beneficiary.@

In our view, the conclusion reached by the majority is premised on 

the unstated assumption that decedent made a mistake in his will, and 

that he did not intend for Baumann to receive the trust proceeds upon

termination of the trust as uneconomical, as clearly and unambiguously 

provided for in article VII (E). We agree with the Surrogate that the 

principles set forth in Wright v Wright (118 NYS 994, 996, affd 140 AD 

634) apply to this case, i.e., that a A >court should not read into a man=s 

will language which he did not use, or so construe it that his intention, 

as expressed in the will, will be thwarted, and the court cannot devise 

a new scheme for a testator or 
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CA 13-01772 

make a new will.= @ 

Entered: August 8, 2014 Frances E. Cafarell

Clerk of the Court