Opinion
December 28, 1970
In a proceeding to construe a will and for other relief, Clifford J. Lust appeals from (1) a decision of the Surrogate's Court, Orange County, dated April 16, 1969, and (2) a decree (incorrectly called a "decision" in the notice of appeal) of the same court, dated December 31, 1969, except that, by his brief, so much of the decree as made awards to guardians ad litem and to the attorney for petitioner and others has been excluded from the appeal. Appeal from decision of April 16, 1969 dismissed without costs. Decree of December 31, 1969 reversed, insofar as appealed from, on the law, without costs, and proceeding remitted to the Surrogate's Court, Orange County, for further proceedings as hereinafter indicated. The findings of fact below have not been affirmed. No appeal lies from a decision ( Balk v. Frank, 29 A.D.2d 685; Matter of Foglia, 32 A.D.2d 836). Moreover, the decision of April 16, 1969 was recalled and superseded by the subsequent decision of April 21, 1969. The notice of appeal from the decree of December 31, 1969 inadvertently characterized the decree of that date as a "decision" and the appellant as "Clifford J. Lust, Administrator C.T.A." It may be that as administrator the appellant was not aggrieved by the determination construing the will and, therefore, lacked standing to appeal from it (see Isham v. New York Assn. for Poor, 177 N.Y. 218; Matter of Richmond, 63 App. Div. 488; Matter of Coe, 55 App. Div. 270). However, appellant was also a legatee under the will and, as such, he clearly was aggrieved by that determination and consequently had standing to appeal from it. Under the circumstances and in view of our power to correct or disregard immaterial, harmless errors in a notice of appeal ( Becker v. Wells, 297 N.Y. 275; Fire Assn. of Phila. v. General Handkerchief Corp., 304 N.Y. 382), we are disregarding the notice of appeal's misnaming of the decree as a "decision" and its erroneous characterization of appellant as a fiduciary, instead of as an individual and legatee; and we are treating this appeal as one properly taken by appellant, individually, from the decree of December 31, 1969. Turning to the merits of the appeal, it is our opinion that the subject provisions of the will are so ambiguous and unclear, and the testator's intention so difficult to glean from the bare words of the instrument, that a hearing as to the surrounding facts and circumstances should have been held in order to shed some light on the context in which those provisions were drafted and the dispositions that they were intended to effectuate (SCPA 1420; cf. Matter of Larkin, 9 N.Y.2d 88, 91). No such hearing was held by the Surrogate and he construed the subject provisions from their bare words alone. We believe that the interests of justice will best be served by a remand of this matter to the Surrogate so that he may hold such hearing and then construe the will de novo in light of the facts disclosed at the hearing. Christ, P.J., Munder, Martuscello, Latham and Benjamin, JJ., concur.