In the Matter of Marianna Bonanno, deceased. Giovanna Bajic, et al., petitioners-appellants; Bennett Bonanno, respondent-respondent, et al., respondent. File No. 2161/02
L. Cortegiano, Middle Village, NY (Peter D. Rosenberg of
counsel), for petitioners-appellants.
& Ragano, Ozone Park, NY (John J. Lawless of counsel),
RANDALL T. ENG, P.J., REINALDO E. RIVERA, RUTH C. BALKIN,
BETSY BARROS, JJ.
DECISION & ORDER
probate proceeding in which Giovanna Bajic and Angela Franke
petitioned pursuant to SCPA 1420 for the construction of a
will, Giovanna Bajic and Angela Franke appeal from an order
and decree (one paper) of the Surrogate's Court, Queens
County (Kelly, S.), dated March 30, 2016, which, upon a
decision of the same court dated February 2, 2016, denied
their motion for summary judgment on the petition and denied
that the order and decree is affirmed, with costs.
Bonanno (hereinafter the decedent) died in 2002, leaving a
will dated August 1, 1983, which was admitted to probate. In
the third article of the will, the decedent
"devise[d]" certain real property located in Queens
County to her four children. The decedent directed, however,
that the property not be sold "during the time when any
one of [her] children is single and not married; and that any
one of them resides in the said property." The decedent
further directed that when "all of [her] children are
married or when all of the children leave... and live
elsewhere, whether they be married or single, " the
property was to be sold and the proceeds divided equally
among her four children.
petitioners, who are the decedent's two daughters,
petitioned pursuant to SCPA 1420 for a construction of the
decedent's will. They sought a construction that certain
provisions contained in the third article of the will
directing, inter alia, that the property not be sold while
any one of the decedent's single and unmarried children
live therein were invalid and that the decedent's four
children each owned a one-fourth interest in the property, in
fee simple absolute, as tenants in common, without
restriction. Thereafter, the petitioners moved for summary
judgment on the petition. The Surrogate's Court denied
their motion (see Matter of Bonanno, 51 Misc.3d 629');">51 Misc.3d 629
[Sur Ct, Queens County]) and denied the petition.
The purpose of a will construction proceeding is to ascertain
and give effect to the testator's intent'"
(Matter of Bernstein, 40 A.D.3d 1086, 1087, quoting
Williams v Williams, 36 A.D.3d 693, 694; see
Matter of Levine, 136 A.D.3d 920, 921; Matter of
Lynch, 113 A.D.3d 616, 617). " All rules of
interpretation are subordinated to the requirement that the
actual purpose of the testator be sought and effectuated as
far as is consonant with principles of law and public
policy'" (Matter of Brignole, 32 A.D.3d
538, 538, quoting Matter of Fabbri, 2 N.Y.2d 236,
239-240). 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 at 240;
see Matter of Levine, 136 A.D.3d at 921; Matter
of Levitan, 134 A.D.3d 716, 717; Matter of
Cincotta, 106 A.D.3d 998).
properly found by the Surrogate's Court, the clear and
unambiguous intent of the decedent was to provide her single
and unmarried child or children the use of the property while
they remained single and then, after they were married or had
all left the property, to have the property sold and the
proceeds divided equally among her four children. Contrary to
the petitioners' contentions, the provisions challenged
by them neither imposed unreasonable restraints on the
alienation of real property (see Metropolitan Transp.
Auth. v Bruken Realty Corp., 67 N.Y.2d 156, 161; Rasch
& Dolan, New York Law & Pract of Real Prop §
9:10 [2d ed June 2016 Update]), nor violated social policy
through restraints on marriage (see Matter of
Liberman, 279 NY 458, 464). The petitioners'
remaining contentions are without merit.
the petitioners failed to make a prima facie showing of
entitlement to judgment as a matter of law, and the
Surrogate's Court properly denied their motion for
summary judgment, regardless of the sufficiency of the
opposition papers (see ...