Opinion
No. 2008–2906/C.
2012-07-19
In the Matter of the Judicial Settlement of the Account of David L. BLOWERS, Deceased.
Phillip L. Burke, Esq., for Todd J. Roberts, Executor. Cynthia Carroll, Esq., as Guardian Ad Litem for Lauren and Sarah Blowers, Minor Remainder Beneficiaries.
Phillip L. Burke, Esq., for Todd J. Roberts, Executor. Cynthia Carroll, Esq., as Guardian Ad Litem for Lauren and Sarah Blowers, Minor Remainder Beneficiaries.
EDMUND A. CALVARUSO, J.
Facts
The proceeding is before this Court as a petition for judicial settlement of Executor's Account. Executor maintains the residuary clause of the Will is inoperative and proposes distribution of the residue equally between the Decedent's two parents, his only distributees. David L. Blowers (the Decedent) died on December 23, 2008, a resident of Taipei, Taiwan. Decedent's Will was admitted to probate by this Court upon an affidavit of the estate attorney placing minimal items of personal property within the borders of Monroe County at the time of his death. This personal property was not included in the later accounting of the Estate.
The relevant portion of the Will reads:
“I hereby give, devise and bequeath all the rest, residue, and remainder of any property which I may own at my death, or of which I may have the power to dispose or to appoint (and I hereby exercise any such power as part of the disposition of my residuary estate), real and personal, tangible and intangible, of whatever description, as follows:
A: All property physically located outside the United states to JACK (CHUNG AN) CHEN in fee simple.
B: All property physically located within the United States to my Trustee, in trust, for the benefit of my nephews and nieces under the following terms and conditions as set forth herein”
The Account indicates the main assets of Decedent's estate are his personal checking account and benefits paid by his employer in Taiwan (i.e. unpaid leave). Both of these items are held in Taiwanese banks. In his petition for judicial settlement of the Account, the Executor reads the Will as being silent on the bank accounts, since it only refers to items physically located within or outside of the United States, and bank accounts have no physical location. The Executor proposes that the accounts must pass by intestacy to Decedent's parents, Lawrence and Leva Blowers under EPTL 4–1.1(a)(4), as the residuary clause is ineffective.
Opinion
Although all parties were cited, there were no objections to the petitioner's accounting. The Guardian Ad Litem for two of the Decedent's minor nieces initially expressed her concern with the petitioner's reading of the Will, but ultimately did not object when she determined that no interpretation would result in the transfer of the accounts to her wards. Notwithstanding the fact that no one objected to the Account, the Court still has the capacity to review accounts and proposed distributions set forth in such accounts. See Matter of Stortecky v. Mazzone, 85 N.Y.2d 518, 525 (2005) (“the Surrogate's power to initiate an examination of the items on an account before approving them is reasonably to be implied from the Constitution, the statutes, and the case law. A Surrogate need not inquire when all parties have consented but he or she is not foreclosed from doing so if the circumstances indicate the need for an inquiry.”).
Courts must have a strong presumption against intestacy in all cases interpreting Wills. NY Surr. Ct. Proc. Act Law § 1420 (McKinney 2012). The presumption is particularly strong where the property in question is part of the residuary estate. In re Haber's Will, 281 A.D. 383, 385 (App.Div.1953)aff'd,306 N.Y. 706 (1954).
The Petitioner correctly points out that it has long been established that bank accounts are intangible property. Matter of Estate of Sylvia M. Baer, 46 AD3d 1368, 1370 (4th Dep't 2008). Though none of the petitioner's cited authority directly confirms that intangible property like bank accounts have no physical location, intangible property by its very nature is property “that lacks a physical existence.” Black's Law Dictionary (9th ed.2009). Since the Will explicitly uses the word “physically” to describe the location of both classes of property that the Decedent bequeathed, the Petitioner is right to say that neither paragraph A nor B specifically mentions the bank accounts, and if this silence was truly the Testator's intent then the property would pass by intestacy to his distributees. SeeEPTL 4–1.1(a)(4) (stating that the property of a Decedent not disposed of by Will shall be distributed as provided in this section If a Decedent is survived by: one or both parents, and no spouse and no issue, the whole to the surviving parent or parents).
However, the Court's duty is to glean intent “not from a single word or phrase but from a sympathetic reading of the Will as an entirety and in view of facts and circumstances under which the provisions of the Will were framed.” In re Fabbri's Will, 2 N.Y.2d 236, 240 (1957). Were paragraphs A and B the only language in the sixth section of the Will, it could be argued that the bank accounts were not considered. However, since the preceding paragraph states that the Decedent is bequeathing “all the rest, residue and remainder of any property” he owned at his death, “tangible and intangible,” the Testator's intent is clarified. The Will does not create a specific class of property to be governed by paragraphs A and B; it explicitly says that all of the Decedent's property “of whatever description,” is being given.
The Testator's use of “physically” was perhaps not the optimal choice of words for these paragraphs, but “although the careless or inapt use of language may create difficulty in ascertaining the Testator's intention, such language must be subordinated to the dominant purpose as revealed by a reading of the Will in its entirety.” In re Dupuy's Will, 29 A.D.2d 965, 966 (2d Dep't 1968). “If a reading of the entire Will reveals a dominant purpose or plan of distribution, the individual parts must be interpreted in the light of that purpose, and be given effect accordingly, despite the fact that a literal reading might yield an inconsistent meaning because of the language or format employed.” In re Larkin's Will, 9 N.Y.2d 88, 91 (1961). Here, the Decedent's dominant purpose was to dispose of all of his property, tangible or intangible. The term “physically located” must be subordinated to that purpose, despite the fact that a literal reading of that specific paragraph alone could elicit a different result.
Additionally, the bank accounts make up essentially all of the Decedent's estate. To imply that he took the time to have a Will written, but forgot to include the items that constitute the entirety of the monetary value of his holdings, is not just inconsistent with his intent, it's contradictory. If a Decedent takes the time to write a Will, it is unlikely that he intended to die testate with regards to some of his property, but intestate with regards to other property. “Where the entire Will unquestionably reveals a conscientious effort to provide for a complete disposition of Decedent's property, but the Testator has inadvertently failed to foresee every eventuality, the presumption against intestacy may be applied and a gift by implication found.” Matter of Bieley, 91 N.Y.2d 520, 526 (1998).
Before learning that the Decedent had no property located, physically or otherwise, within the United States, the Guardian Ad Litem for two trustees designated in paragraph B issued a preliminary report noting “the usual rule with respect to [intangible personal property] is that for administrative purposes they have their situs at the domicile of the owner.” Matter of Estate of Sylvia M. Baer, 46 AD3d 1368, 1370 (4th Dep't 2008). Decedent was domiciled in Taipei and the accounts are held by Taiwanese banks. The benefits were accrued by the Decedent by working for his Taiwanese employer. There is no reasonable way to conclude that they are located in the United States, but several ways to find them located in Taiwan. It is certainly inconsistent with the intent of the Testator to have the balance given to his parents, who are not named beneficiaries in his Will. Accordingly, the Court finds that the $38,660.16 balance of the cash account and benefits paid by Decedent's employer rightfully belong to Jack Chen as the residuary beneficiary.
All other aspects of the Executor's account are satisfactory. Counsel for the Estate is directed to submit a decree, consistent with this Decision, settling the Account.