Matter of Pearce

Summary

The Appellate Division, Second Department affirmed an order construing the decedent's will to include an adjacent lot as part of her "primary residence," which was bequeathed to the petitioner. The court held that the phrase presented a latent ambiguity and that extrinsic evidence showed the decedent treated the brownstone and lot as one property. The court also upheld an award of attorneys' fees payable from the residuary estate.

Holdings

1. The lot at 95 Park Place was included within the decedent's "primary residence" and was therefore bequeathed to Holly under Article SECOND.
2. Extrinsic evidence was properly considered because the phrase "primary residence" was latently ambiguous in light of the properties' physical relationship and separate legal descriptions.
3. The Surrogate's Court properly awarded Holly reasonable attorney's fees payable from the decedent's residuary estate.

Questions Presented

1. Whether the phrase "primary residence" in Article SECOND of the decedent's will included the contiguous lot at 95 Park Place.
2. Whether extrinsic evidence was admissible to determine the meaning of "primary residence" because the phrase presented a latent ambiguity in the circumstances of the devise.
3. Whether the award of attorney's fees to Holly, payable from the decedent's residuary estate, was proper.

Disposition

affirmed