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In re Cincotta

Supreme Court of New York, Second Department

May 22, 2013

In the Matter of Dominick Cincotta, deceased. Dorothy Perry Cincotta, appellant; Robert Cincotta, et al., respondents. (File No. 4818/02)

Teahan & Constantino LLP, Millbrook, N.Y. (Stephen C.F. Diamond of counsel), for appellant.

Pelosi Wolf Effron & Spates LLP, New York, N.Y. (Alan Effron of counsel), and Vittoria & Purdy LLP, New York, N.Y. (James A. Purdy of counsel), for respondents (one brief filed).

WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SANDRA L. SGROI ROBERT J. MILLER, JJ.

DECISION & ORDER

In a probate proceeding in which Dorothy Perry Cincotta, as executor of the Estate of Dominick Cincotta, petitioned to settle her account, the petitioner appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Queens County (Kelly, S.), dated May 4, 2012, as denied that branch of her motion which was, in effect, for a construction of the decdent's will which would bequeath two notes secured by mortgages to her personally.

ORDERED that the order is affirmed insofar as appealed from, with costs.

" [T]estamentary instruments are strictly construed so as to give full effect to the testator's clear intent'" (Matter of Murray, 84 A.D.3d 106, 113, quoting Matter of Covert, 97 N.Y.2d 68, 74). The testator's intent "must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed" (Matter of Fabbri, 2 N.Y.2d 236, 240; see Matter of Murray, 84 A.D.3d at 113; Matter of Brignole, 32 A.D.3d 538; Matter of Ramdin, 11 A.D.3d 698, 699). A court, however, "may not rewrite a will in order to give effect to an intention which possibly the testator may have had but which is not revealed by the language used in the will'" (Matter of Rutherford, 125 A.D.2d 312, 313, quoting Matter of Nelson, 268 NY 255, 258).

Here, as the Surrogate's Court properly recognized, notes secured by mortgages are generally construed to be personal property (see Singh v Becher, 249 A.D.2d 154; Matter of Caperonis, 95 Misc.2d 690, 695; see also EPTL 13-1.1[a][7]), and there is nothing in the language of the decedent's will that manifests an intent to include the subject notes within the clause devising his "interests in real property" to the petitioner. The construction suggested by the petitioner cannot be accepted since the court should not rewrite a will or supply an omission not necessarily implied by the language used, even though intestacy with respect to a particular asset results (see Matter of Gautier, 3 N.Y.2d 502; Matter of Rutherford, 125 A.D.2d at 313; Matter of Kronen, 114 A.D.2d 1033, affd 67 N.Y.2d 587; Matter of Imperato, 44 Misc.2d 639, revd 24 A.D.2d 596, revd for reasons stated by Surrogate's Court 18 N.Y.2d 825).

The Surrogate's Court therefore properly denied that branch of the petitioner's motion which was, in effect, for a construction of the decedent's will which would bequeath the subject notes secured by mortgages to her personally.

MASTRO, J.P., LEVENTHAL, SGROI and MILLER, JJ., concur.


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