IN RE: Eugene P. GOLD (2026)

DECISION & ORDER

In a probate proceeding in which Cheryl Gold, as executor of the estate of Eugene P. Gold, petitioned pursuant to SCPA 1420 to construe the in terrorem clause in the will of Eugene P. Gold, and Kenneth Gold cross-petitioned pursuant to SCPA 1420 to construe the in terrorem clause in the will of Eugene P. Gold, Kenneth Gold appeals from an order of the Surrogate's Court, Nassau County (Margaret C. Reilly, S.), dated May 14, 2020.  The order granted the converted motion of Cheryl Gold and Amy Kaufman for summary judgment dismissing the cross-petition.

ORDERED that the order is reversed, on the law, with costs, and the converted motion of Cheryl Gold and Amy Kaufman for summary judgment dismissing the cross-petition is denied.

Some of the relevant facts underlying this appeal are set forth in this Court's decision and order in a related appeal (see Matter of Gold, 170 A.D.3d 1174, 96 N.Y.S.3d 636).

Eugene P. Gold died on November 8, 2013.  Eugene was predeceased by his wife, Grace K. Gold, and had been the executor of Grace's estate.  Eugene was survived by his two daughters, Cheryl Gold and Amy Kaufman, and his son, Kenneth Gold. Following Eugene's death, Cheryl and Amy were appointed successor co-executors of Grace's estate.  Eugene's will, as amended by three codicils, was admitted to probate on September 2, 2016.  Letters testamentary were issued to Cheryl as executor of Eugene's estate.

Grace's will created a trust and gave Eugene a limited power of appointment over the trust exercisable in favor of one or more of Grace's descendants.  Eugene's will, with respect to the trust, provided that $2 million be distributed to Cheryl and $2 million be distributed to Amy, with the balance to be distributed to Eugene's descendants per stirpes.  Eugene's will also bequeathed to Kenneth all of Eugene's shares in two family corporations, Doral Fabrics, Inc., and Potomac Mills, Inc. In addition, Eugene's will contained an in terrorem clause prohibiting direct or indirect opposition to the probate of the will or to the validity of any portion of the will.

Although Kenneth had signed a waiver and consent to the probate of Grace's will, after Cheryl offered Eugene's will for probate, Kenneth sought to rescind his waiver and consent to the probate of Grace's will and moved to stay the probate of Eugene's will, based on his assertion, inter alia, that Grace lacked capacity at the time she executed her will.  Kenneth thereafter petitioned, among other things, for letters of limited administration pursuant to SCPA 702 with respect to Grace's estate (see Matter of Gold, 170 A.D.3d at 1175, 96 N.Y.S.3d 636).  Cheryl and Amy moved, inter alia, for summary judgment dismissing the amended petition, and the Surrogate's Court granted that branch of their motion (see id.).  This Court affirmed, determining, among other things, that Kenneth failed to raise a triable issue of fact as to whether Grace executed the trust agreement as the result of undue influence (see id.).

In October 2016, Cheryl, as executor of Eugene's estate, filed a petition pursuant to SCPA 1420 to construe the in terrorem clause in Eugene's will.  Cheryl alleged, inter alia, that Kenneth's challenge to the validity of Grace's will violated the in terrorem clause of Eugene's will, because an invalidation of the trust would have undermined Eugene's testamentary intent.  After Cheryl, as executor of Eugene's will, failed to deliver Eugene's shares of Potomac Mills, Inc., to Kenneth on the basis, among other things, that Kenneth had forfeited the bequest by violating the in terrorem clause of the will, Kenneth filed a petition, inter alia, to compel the transfer to him of the shares of Potomac Mills, Inc., pursuant to an inter vivos agreement between him and Eugene.

In March 2017, Kenneth filed a cross-petition pursuant to SCPA 1420 to construe the in terrorem clause in Eugene's will.  Kenneth alleged that Cheryl and Amy had violated the in terrorem clause by, among other things, refusing to turn over Eugene's shares of Doral Fabrics, Inc., and Potomac Mills, Inc., upon proper demand, as bequeathed to Kenneth in Eugene's will, and by failing to fund certain testamentary trusts under Grace's will.  In an order dated September 18, 2017, the Surrogate's Court found that Kenneth's turnover petition could not be determined before Cheryl's petition to construe the in terrorem clause was determined and, therefore, denied Kenneth's turnover petition “without prejudice for review upon a determination of the construction.”

In June 2017, Cheryl and Amy moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss Kenneth's cross-petition to construe the in terrorem clause.  The Surrogate's Court converted that branch of the motion into a motion for summary judgment dismissing Kenneth's cross-petition.  Thereafter, in an order dated May 14, 2020, the court granted the converted motion for summary judgment dismissing Kenneth's cross-petition.  Kenneth appeals.

“ ‘On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.  The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.  Once this showing has been made, ․ the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial’ ” (Carlson v. Colangelo, 44 N.Y.3d 116, 124, 242 N.Y.S.3d 193, 269 N.E.3d 179, quoting Bazdaric v. Almah Partners LLC, 41 N.Y.3d 310, 316, 209 N.Y.S.3d 310, 232 N.E.3d 1244).

Here, in support of their converted motion, Cheryl and Amy failed to demonstrate, prima facie, the absence of any triable issues of fact with respect to Kenneth's allegation in his cross-petition that Cheryl, as executor, had violated the in terrorem clause in Eugene's will by failing to turn over Eugene's shares in the family corporations to Kenneth.  “[W]hile in terrorem clauses are enforceable, they are not favored and [must be] strictly construed” (Matter of Austin, 242 A.D.3d 739, 741, 244 N.Y.S.3d 136 [internal quotation marks omitted] ).  “ ‘The cardinal rule of construction of a will and, concomitantly, of an in terrorem clause, is to carry out the intent of the testator’ ” (id. at 742, 244 N.Y.S.3d 136, quoting Matter of Ellis, 252 A.D.2d 118, 127, 683 N.Y.S.2d 113).  “ ‘The intention must be gathered from all of the surrounding circumstances and the writings interpreted according to the purpose which the parties had in mind’ ” (id., quoting Matter of Cook's will, 244 N.Y. 63, 69, 154 N.E. 823).  Since, as the Surrogate's Court determined, it is necessary to reach a proper construction of the in terrorem clause in order to resolve whether Kenneth or Cheryl violated the in terrorem clause with respect to the bequest in the will of the shares in the family corporations to Kenneth, a triable issue of fact existed, warranting the denial of the converted motion of Cheryl and Amy for summary judgment dismissing Kenneth's cross-petition.

LASALLE, P.J., VOUTSINAS, LOVE and HOM, JJ., concur.