Opinion
December 3, 1970
Appeal from the Steuben County, Surrogate's Court.
Present — Goldman, P.J., Del Vecchio, Marsh, Witmer and Moule, JJ.
Decrees insofar as appealed from unanimously reversed on the law and facts, with costs to all parties filing briefs, payable out of the estate, and matter remitted to Surrogate's Court, Steuben County, for further proceedings in accordance with the following memorandum: On the basis of testimony received without objection to a conversation the witness had with testatrix prior to the preparation of her will, the Surrogate has concluded that a bequest of "any particular articles of furniture in my home which she [the legatee] may desire" was restricted to what was considered the new furniture in the home of the testatrix on the date of execution of the will. In our opinion this restrictive construction constituted an unwarranted rewriting of the testamentary instrument. While the prime consideration in a construction proceeding is the intention of the testator, it is the intention "as expressed in the will" which is determinative. ( Matter of Fabbri, 2 N.Y.2d 236, 239.) "The intention of a will-maker is to be found in the words used in the will, and when these are clear and definite there is no power to change them." ( Matter of Watson, 262 N.Y. 284, 293.) In the present case, the words "any particular articles of furniture in my home", and in particular the word "any", are plain and unambiguous. To attribute to them a meaning of "new furniture" only, is to work a distortion not justified on the basis of the language itself and not required by any "dominant purpose or plan of distribution" gleaned from a reading of the will in its entirety. ( Matter of Fabbri, supra, p. 240). With no ambiguity in the words used by the testatrix, the consideration of extrinsic evidence of a statement made by her — which is also inconsistent to some degree with communications had with the attorney who prepared the will — was improper. ( Matter of Bisconti, 306 N.Y. 442, 445; Matter of Bloomberg, 6 A.D.2d 132.) We conclude that it was the testatrix' intention as expressed in the will to make a gift to appellant of any furniture she might desire.