Jon Thomas Grawe, Administrator of the Estate of Thomas H. Grawe, Deceased, Respondent-Appellant. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of the Last Will and Testament of Thomas H. GRAWE, Deceased. Cher C. Lazenby, Petitioner-Respondent; Jon Thomas Grawe, Administrator of the Estate of Thomas H. Grawe, Deceased, Respondent-Appellant.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Geiger and Rothenberg, LLP, Rochester (David Rothenberg of Counsel), and Schwerzmann & Wise, PC, Watertown, for Respondent-Appellant. Lionel Lee Hector, Carthage, for Petitioner-Respondent.

 Petitioner commenced this proceeding pursuant to SCPA 1420 seeking an order determining that she is the rightful beneficiary of the property devised in article fourth of the last will and testament of Thomas H. Grawe (decedent).   By that article, decedent devised and bequeathed his residence and its contents to “that woman, if there be one, with whom I am cohabiting in said residence at the time of my death,” provided that the executor of decedent's estate “conclude[d] to his satisfaction” that, inter alia, decedent and “said woman were cohabiting voluntarily ․ [as] the consequence of an intimate, personal relationship” at the time of decedent's death.   The executor asserted in opposition to the relief sought that, as he had previously determined, petitioner does not meet the criteria set forth in article fourth.   The Surrogate properly concluded that the executor does not possess unlimited discretion to make that determination.   Rather, the exercise of discretion by the executor is limited by his absolute duty of impartiality to the beneficiaries of the estate (see Matter of Muller, 24 N.Y.2d 336, 341, 300 N.Y.S.2d 341, 248 N.E.2d 164, amended on other grounds 24 N.Y.2d 1029, 302 N.Y.S.2d 851, 250 N.E.2d 252), and the executor's exercise of discretion is subject to judicial review (see Matter of Leopold, 259 N.Y. 274, 277, 181 N.E. 570).   The evidence at the hearing supports the Surrogate's conclusion that petitioner met the criteria set forth in article fourth of the will, “given their ordinary and natural meaning,” and that she is thus the rightful beneficiary of the property devised in that article (Matter of Gustafson, 74 N.Y.2d 448, 451, 548 N.Y.S.2d 625, 547 N.E.2d 1152).   The executor's remaining contention is raised for the first time on appeal and therefore is not preserved for our review (see C-Kitchen Assoc., Inc. v. Travelers Ins. Co., 11 A.D.3d 961, 962, 782 N.Y.S.2d 486).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: