Opinion
May 12, 1977
Appeal from a decree of the Surrogate's Court of Chenango County, entered February 20, 1975, which determined ownership of certain real property passing under paragraph "SEVENTH" of the testatrix' will. "Seventh: I give and devise the premises known as 39-39A Division Street, Norwich, New York, as follows: The east half of said premises I devise to my daughter, MARY SMITH, and the west half of said premises I give and devise to my daughter, GRACE PORTELLI. It is my intention in this paragraph to give each of my said daughters a one-half interest in said premises. In the event that my daughters have any difficulty in the managing of said property, then it is my wish that one of my said daughters buy the interest of the other daughter so that one of my daughters would then be the owner of all of said premises." The premises contain a two-family house, divided by a partition down the center of the house, and a two-car garage, wholly located on the eastern half of the property, with the driveway located on the western half. Appellant contends that since the garage is located on the eastern portion of the property, it belongs exclusively to her. Since it is the intention of the testatrix that must be implemented (Matter of Jones, 38 N.Y.2d 189) and, further, since that intention must be gleaned from a sympathetic reading of the whole instrument (Matter of Fabbri, 2 N.Y.2d 236, 240), it was proper for the Surrogate to receive extrinsic evidence as an aid in determining that intent. Such evidence clearly established that appellant had occupied the easterly portion of the two-family house for 36 years, while the west half had been rented. Appellant, during all that time, used the north side of the garage while the tenants used the south half. Therefore, it is reasonable to assume that the testatrix intended to continue this arrangement with respect to the garage and, accordingly, in paragraph "SEVENTH" used the word "premises" to mean the two-family house, land and garage and intended to convey a divided one-half interest to each daughter in the land, house and garage. Decree affirmed, with costs to all parties filing briefs payable out of the estate. Koreman, P.J., Sweeney, Kane, Mahoney and Larkin, JJ., concur.