Matter of Rutherford

Appellate Division of the Supreme Court of New York, Second DepartmentDec 1, 1986
125 A.D.2d 312 (N.Y. App. Div. 1986)

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December 1, 1986

Appeal from the Surrogate's Court, Queens County (Laurino, S.).


Ordered that the decree is affirmed, without costs or disbursements.

In 1981, the decedent and her husband executed a joint will leaving all of their property to each other and appointing each other executor and executrix, respectively. The will further provided that in the event of a common disaster, both of their estates would pass to the petitioner, Viola Graves, and one Billy Harris, who, in that event, would also serve as executrix and executor, respectively, of the estate. There was no provision governing the disposition of the estate of the survivor if death was not simultaneous.

The decedent died in 1984, her husband and the aforementioned Billy Harris having predeceased her. Her sole surviving relative and intestate distributee was a half brother, the respondent herein.

The petitioner instituted this will construction proceeding, arguing that the decedent intended that the petitioner inherit the estate, but because of the attorney's drafting error, the will contained no provision therefor. The petitioner thus sought a construction of the will which would effectuate the decedent's purported wishes, or, alternatively, requested that a constructive trust be imposed on the estate's assets. The Surrogate held that the estate must be distributed in intestacy, and denied the petitioner's application in its entirety. We affirm.

A court 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 Nelson, 268 N.Y. 255, 258; Matter of Imperato, 44 Misc.2d 639, 641, revd 24 A.D.2d 598, revd for reasons stated by Surrogate's Court 18 N.Y.2d 825; see, Matter of Kronen, 114 A.D.2d 1033, affd 67 N.Y.2d 587). For the same reason, a gift by implication cannot arise, since "the language of the will does not compel the conclusion that [the] decedent intended [the] petitioner to take under the will in these circumstances" (Matter of Kronen, 67 N.Y.2d 587, 589, supra; see, Matter of Thall, 18 N.Y.2d 186).

Nor has the petitioner established grounds which would warrant the imposition of a constructive trust (cf. Sharp v. Kosmalski, 40 N.Y.2d 119; Ladone v. Ladone, 121 A.D.2d 512). As the Surrogate noted, "[a] constructive trust is a `fraud-rectifying' trust rather than an `intent-enforcing' trust" (Matter of Wells, 36 A.D.2d 471, 474, affd 29 N.Y.2d 931, quoting from Saulia v. Saulia, 31 A.D.2d 640, mod on other grounds 25 N.Y.2d 80; Bogert, Trusts Trustees § 471, at 7 [2d ed]). Thompson, J.P., Niehoff, Rubin and Eiber, JJ., concur.