IN RE: the ESTATE OF Catherine M. McHUGH

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Surrogate's Court, Broome County, New York.

IN RE: the ESTATE OF Catherine M. McHUGH, Deceased.

Decided: February 16, 2006

Michael H. Zuckerman, Esq., Levene, Gouldin & Thompson, LLP, Vestal, Attorney for Estate.

 In this construction proceeding the decedent's will directs the executor to divide

“my residuary estate' into twenty-five (25) separate equal shares, so that there shall be one (1) such share for each of my nieces and nephews who shall survive me, and one (1) such share for each of my nieces and nephews who shall not survive me but who shall have left a child or children surviving me.”

The problem presented by this language is that testatrix had twenty-two blood nieces and nephews either surviving or predeceased with children.   She also had three nieces and nephews by marriage, being the nieces and nephews of her predeceased husband.   Thus by including both nieces and nephews by blood and by marriage, the total of twenty-five is reached.

 The purpose of will construction is to determine the intent of the testator Matter of Fabbri, 2 N.Y.2d 236, 159 N.Y.S.2d 184, 140 N.E.2d 269 (1957);  Matter of Gustafson, 74 N.Y.2d 448, 548 N.Y.S.2d 625, 547 N.E.2d 1152 (1989).   Such intention is to be determined from a sympathetic reading of the will as a whole.  Matter of Bieley, 91 N.Y.2d 520, 673 N.Y.S.2d 38, 695 N.E.2d 1119 (1998);  Matter of Larkin, 9 N.Y.2d 88, 211 N.Y.S.2d 175, 172 N.E.2d 555 (1961).

The attorney draftsman of the will, Michael Zuckerman, has submitted an affidavit in which he states that the testatrix indicated to him when he met with testatrix in regard to drafting the will that she had 25 nieces and nephews.

 Numerous recent decisions by Surrogates in several different counties have received the extrinsic evidence of the affidavit of an attorney draftsman of the will.  Matter of Krakauer, N.Y.L.J., 11/2/01, p. 19 (Surr. Ct. Bronx Co.);  Matter of Herceg, 193 Misc.2d 201, 747 N.Y.S.2d 901 (Surr. Ct. Broome Co.-2002);  Matter of Ridder, N.Y.L.J., 8/8/00, p. 28 (Surr. Ct. Nassau Co.);  Matter of Schumer, N.Y.L.J., 7/9/03, p. 24 (Surr. Ct. Suffolk Co.);   Matter of Dolbey, N.Y.L.J., 6/22/99, at 36 (Surr. Ct. Westchester Co.).   Accordingly, the court will receive and consider the affidavit of Mr. Zuckerman.

All of the living blood nieces and nephews as well as the children of predeceased blood nieces and nephews have submitted consents to construe the will so as to include the three nieces and nephews by marriage.

 Ordinarily there is a presumption in will construction that heirs of the blood will be preferred to strangers, and relatives by marriage.   12 Warren's Heaton on Surrogate Courts § 191.06(2) at p. 191-119, 6th ed. Revised.  “The words nieces and nephews in their primary and usual sense denote a blood relationship but the significance of these words may be enlarged and their definition may be altered in their employment by a particular testator.”  Matter of Platt, 147 N.Y.S.2d 716 (Surr. Ct. New York Co.1955).

There are several cases where non-blood nieces and nephews have been included in the residuary distribution based upon the language of the will showing the intention of the testator that they should be included.  Matter of Nicklas, 116 Misc. 690, 191 N.Y.S. 360 (Surr. Ct. Bronx Co.1921);  Matter of Sulzbacher, 169 Misc. 1, 6 N.Y.S.2d 683 (Surr. Ct. New York Co.1938);   Matter of McDonald, 190 Misc. 856, 76 N.Y.S.2d 695 (Surr. Ct. Chemung Co.1948);  Matter of Platt, supra.

In Nicklas the will bequeathed the residuary to “my nephews and nieces who may survive me”.   The decedent had five blood nieces and nephews, but also several step nieces and nephews who were the children of a step brother and step sister.   The court relied upon the fact that the testatrix had given legacies in an earlier paragraph of the will to the step nieces and nephews and had referred to them as “my niece” or “my nephew.”   On those grounds the court concluded the step nieces and nephews were intended to share in the residuary.   Accord, Matter of Sulzbacher, supra.

In McDonald the residuary was left to “my relatives named as devisees and legatees herein.”   Earlier clauses of the will had left legacies to two nieces by marriage and a sister-in-law, among others.   Hence the Court concluded “the testatrix considered all of the legatees as her relatives without distinction as to consanguinity or affinity” and held the relatives by marriage were included in the residuary.

In Platt, the residuary estate was divided into trusts for nine named nieces and nephews, including one nephew by marriage, with remainder to each's issue.   The will then provided that if any of the nieces and nephews died without issue, the residue of that trust should be divided “equally between the survivors of such nieces or nephews and the lawful descendants of any who may have heretofore died leaving lawful descendants.”   One of the nephews or nieces died without issue.   At that time the nephew by marriage had also died, but leaving issue.   The question thus presented was whether the descendants of the deceased nephew by marriage took a share of the residue of the trust where the life beneficiary died without issue.   The court held the “reference to my said nephews'․ was intended to include the nephew of testator's deceased wife” and so his issue did take a share of the trust remainder.

In the case at bar, the only way to reach the total of 25 nieces and nephews specified in the will is to read the will to include the three by marriage.   The affidavit of Mr. Zuckerman supports this conclusion.   Therefore the court holds that the testatrix intended that James Kane, Anne Riley and Mary Herrick, nieces and nephew of testatrix's deceased husband should receive a one twenty-fifth share of the residuary of the estate.

This decision constitutes the Order of the Court.

EUGENE E. PECKHAM, J.