        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1166
CA 12-00827
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF THE ESTATE OF GARY M. PHILLIPS,
DECEASED.
------------------------------------------------
KELLY E. HEBERLEIN, AS EXECUTOR OF THE ESTATE      MEMORANDUM AND ORDER
OF GARY M. PHILLIPS, DECEASED,
PETITIONER-APPELLANT;

CHERIL M. EBERTH, ALLISON M. ALBERTI,
RESPONDENTS-APPELLANTS,
AND LORRIE MACDIARMID, RESPONDENT-RESPONDENT.


FEUERSTEIN & SMITH, LLP, BUFFALO (MARK E. GUGLIELMI OF COUNSEL), FOR
PETITIONER-APPELLANT AND RESPONDENTS-APPELLANTS.

THE LAW OFFICE OF ROBERT WEIG, LANCASTER (ROBERT E. WEIG OF COUNSEL),
FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Surrogate’s Court, Erie County
(Barbara Howe, S.), entered July 22, 2011. The order, inter alia, in
effect granted that part of the cross motion for summary judgment of
respondent Lorrie MacDiarmid with respect to her proposed construction
of article four of the last will and testament of decedent.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of respondent’s
cross motion for summary judgment construing article four of
decedent’s last will and testament in her favor and vacating that part
of the order and as modified the order is affirmed without costs, and
the matter is remitted to Surrogate’s Court, Erie County, for further
proceedings in accordance with the following Memorandum: Petitioner
commenced this proceeding seeking construction of certain provisions
of the last will and testament (will) of her father, Gary M. Phillips
(decedent). In the will, decedent devised his property to petitioner
and her sisters, respondents Cheril M. Eberth and Allison M. Alberti
(collectively, daughters) and his live-in girlfriend, Lorrie
MacDiarmid (respondent). Thereafter, petitioner moved for summary
judgment, contending that the third and fourth articles of the will
are ambiguous and require Surrogate’s Court to consider extrinsic
evidence in order to construe the meaning of those articles.
Respondent cross-moved for summary judgment, contending that the will
is unambiguous and thus that the Surrogate is precluded from
considering extrinsic evidence in construing the will. The Surrogate
in effect granted that part of petitioner’s motion with respect to her
proposed construction of article three and that part of respondent’s
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                                                         CA 12-00827

cross motion with respect to her proposed construction of article
four. We agree with the daughters that the Surrogate erred in
granting that part of respondent’s cross motion with respect to the
construction of article four and that extrinsic evidence is necessary
to resolve the latent ambiguity in that article.

     Initially, we note that we further agree with the daughters that
respondent’s challenge to the Surrogate’s construction of article
three of the will is not properly before us inasmuch as respondent
failed to take a cross appeal from the order (see Harris v Eastman
Kodak Co., 83 AD3d 1563, 1564; Matijiw v New York Cent. Mut. Fire Ins.
Co., 292 AD2d 865, 866; see generally CPLR 5515 [1]). With regard to
article four of the will, we note as background that, at the time of
his death, decedent owned a lot measuring 120 feet by 300 feet (lot),
upon which his house and a garage were located. Decedent also owned
88 acres of land adjacent to the lot. The 88-acre parcel (hereafter,
farmland) included a “pole barn” that decedent used to house his
tractor and cows. In article four of the will, decedent bequeathed
his residence “and the plot of land appurtenant thereto” to respondent
(emphasis added). That article provides that, “[i]f any balance of a
mortgage, loan, or encumbrance against the said residence, or the plot
of land appurtenant thereto, remains unpaid at the time of my death,
then I direct that the recipient or recipients of such property shall
receive the property subject to the said mortgage, loan or
encumbrance” (emphasis added). The fifth article of the will granted
to the daughters in equal shares “the rest, residue and remainder of
[decedent’s] property, both real and personal, of whatsoever kind and
nature and wherever located, to which [decedent] may be entitled in
any manner at the time of [his] death.”

     In the petition, petitioner contended with respect to article
four of the will that the phrase “the plot of land appurtenant
thereto” referred to the lot on which decedent’s residence was
located, not to the farmland. Petitioner attached extrinsic evidence
supporting her proposed construction of article four as exhibits to
the petition. In opposing the admission of that extrinsic evidence,
respondent contended that, under the plain language of article four of
the will, she was entitled to the residence, the lot, and the
farmland.

     As noted above, petitioner moved and respondent cross-moved for
summary judgment. In support of her motion, petitioner contended that
the phrase “the plot of land appurtenant thereto” in article four is
ambiguous, requiring extrinsic evidence to determine decedent’s
intent. In opposition to petitioner’s motion and in support of her
cross motion, respondent contended that the terms of the will were
clear and unambiguous and thus that the consideration of extrinsic
evidence was precluded. The Surrogate concluded that the bequest of
real property to respondent under article four consisted of decedent’s
residence, the lot, and the farmland. The Surrogate therefore agreed
with respondent that decedent’s intent could be inferred from the
“four corners of the will” and thus that reference to extrinsic
evidence was improper. That was error.
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                                                         CA 12-00827

     It is well settled that, “in a will construction proceeding, the
search is for the decedent’s intent . . . and not for that of the
draft[er]” (Matter of Cord, 58 NY2d 539, 544, rearg denied 60 NY2d
586; see Matter of Bieley, 91 NY2d 520, 525; Matter of Gustafson, 74
NY2d 448, 451; Matter of Shannon, 107 AD2d 1084, 1085). In
ascertaining decedent’s intent, “ ‘a sympathetic reading of the will
as an entirety’ is required” (Matter of Carmer, 71 NY2d 781, 785,
quoting Matter of Fabbri, 2 NY2d 236, 240; see Matter of Scale, 38
AD3d 983, 984). “[T]he best indicator of the testator’s intent is
found in the clear and unambiguous language of the will itself and,
thus, where no ambiguity exists, [e]xtrinsic evidence is inadmissible
to vary the terms of a will” (Scale, 38 AD3d at 985 [internal
quotation marks omitted]; see Cord, 58 NY2d at 544; Matter of
Goldstein, 46 AD2d 449, 450, affd 38 NY2d 876). “If, on the other
hand, a provision of the will is ambiguous, extrinsic evidence is
properly considered in discerning the testator’s true intent” (Matter
of McCabe, 269 AD2d 727, 729; see Matter of Schermerhorn, 31 NY2d 739,
741; Goldstein, 46 AD2d at 451). “A latent ambiguity arises when the
words used are neither ambiguous nor obscure but ambiguity appears
relative to persons or things meant” (Matter of Blodgett, 168 Misc
898, 901).

     As noted above, decedent’s will devised his residence “and the
plot of land appurtenant thereto” to respondent. “Appurtenant” has
been defined as “[a]nnexed to a more important thing” (Black’s Law
Dictionary 118 [9th ed 2009]). Moreover, courts have defined an
appurtenance as “something annexed to or belonging to a ‘more
important’ thing and not having an independent existence” (Matter of
Crystal v City of Syracuse, Dept. of Assessment, 47 AD2d 29, 32, affd
38 NY2d 883), i.e., “a thing used with and related to or dependent
upon another thing more worthy” (Woodhull v Rosenthal, 61 NY 382,
390). Under such a definition, “land can never be appurtenant to
other land, or pass with it as belonging to it” (id.; see Armstrong v
DuBois, 90 NY 95, 102). Nevertheless, a court’s definition of the
term “appurtenant” in the abstract “does not prevent a different
meaning which any grantor may himself [or herself] give to the word as
he [or she] uses it. When a grantor makes a strip of land, by express
words, ‘appurtenant’ to two other pieces, his [or her] meaning is to
be discovered from the context, and not from the books” (Putnam v
Putnam, 77 App Div 554, 556). Here, the will does not refer to land
appurtenant to other land; rather, it refers to land appurtenant to
decedent’s residence (see generally Schermerhorn, 31 NY2d at 741).

     We conclude that the definition of “appurtenant” does not clarify
decedent’s intent with regard to the farmland (see Carmer, 71 NY2d at
785), nor does a sympathetic reading of the entire will clarify his
intent. Rather, the language in article four referring to “the plot
of land appurtenant” to decedent’s residence is ambiguous, and the
Surrogate should have considered extrinsic evidence “ ‘ to explain to
what particular pieces of land the language of the will referred’ ”
(Schermerhorn, 31 NY2d at 741, quoting Matter of Phipps, 214 NY 378,
381, rearg denied 215 NY 652; see McCabe, 269 AD2d at 729; Matter of
Schaffner, 162 AD2d 972, 972; Goldstein, 46 AD2d at 450-451). It is
                                 -4-                          1166
                                                         CA 12-00827

undisputed that, at the time of his death, decedent owned the lot on
which his residence was located as well as the adjacent farmland. It
is not clear from the four corners of the will, however, whether, in
referring to “the plot of land appurtenant to” his residence, decedent
was referring to the smaller lot upon which his residence was situated
or the adjacent farmland. Thus, contrary to the Surrogate’s
determination, we conclude that the language of article four does not
unambiguously provide that the plot of land appurtenant to the
residence is separate and distinct from decedent’s residence.

     We further conclude that the Surrogate erred in determining that
the second paragraph of article four clearly indicates that the plot
of land appurtenant to the residence refers to the farmland. The
Surrogate adopted respondent’s position that, if the plot of land
appurtenant to the residence referred to the lot upon which the
residence was located, the second paragraph of article four relating
to a mortgage would be rendered meaningless. The Surrogate agreed
with respondent that because a mortgage could not be secured against
the residence separate and distinct from the land upon which it was
built, the appurtenant plot of land must refer to the farmland. As
noted above, however, the aim in construing a will is to determine the
intent of the decedent, not that of the drafter (see Cord, 58 NY2d at
544). Here, the Surrogate’s conclusion assumes that decedent would
have understood that the lot could not be mortgaged separately from
the residence, and there is no basis for that assumption.

     We further conclude that the parties’ submissions raise issues of
fact concerning decedent’s intent. In support of her motion,
petitioner submitted, inter alia, the deposition testimony of the
attorney who drafted the will, a will questionnaire completed by
decedent, and the attorney’s notes relating to his preparation of the
will. On the will questionnaire, decedent wrote, “I would like to
leave my house [in or on] . . . lot size 120 x 130 to [respondent].”
Similarly, the attorney’s notes state “[to respondent] . . . [the
residence] (w/mtge). house property 120 x 300 she’ll take home subject
to mtge [sic] . . . [r]est of estate to 3 girls = shares, per
stirpes.” At his deposition, the attorney testified that the
reference to the land appurtenant to the residence in article four was
intended to mean the house and the plot of land on which the house
stood. He “assume[d]” that such plot was the “120 by 300” foot lot
“because those are the numbers that appear[ed] in [his] notes and . .
. on the will questionnaire.” The attorney did not recall decedent
referring to any real property other than the lot on which the
residence was located.

     Petitioner also submitted a tax map indicating that the county
taxed the lot and the farmland separately, deeds establishing that the
farmland was transferred separately from the lot, and the mortgage on
the lot. That evidence suggests that decedent viewed the lot and the
farmland separately, and may support the daughters’ contention that
the plot of land appurtenant to the residence was the lot upon which
the residence sits (see generally Schermerhorn, 31 NY2d at 741).
Respondent, however, referred to evidence reflecting that, when
decedent originally purchased the lot and the farmland in 1978, it
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                                                         CA 12-00827

consisted of one parcel and, according to respondent, decedent
partitioned the parcel only in anticipation of his then-pending
divorce. Respondent further asserted that she and decedent shared the
chores associated with maintaining the farmland and that the utilities
servicing the pole barn, located on the farmland, were attached to the
meters located inside the residence. Thus, we conclude that, under
these circumstances, the parties should be given the opportunity to
present extrinsic evidence at a hearing before the Surrogate regarding
decedent’s intended distribution under article four of the will (see
McCabe, 269 AD2d at 729; Schaffner, 162 AD2d at 973; cf. Goldstein, 46
AD2d at 452; see also Matter of Malasky, 275 AD2d 500, 502; see
generally Matter of White, 65 AD3d 1255, 1258).

     We therefore modify the order accordingly, and we remit the
matter to the Surrogate for further proceedings in accordance with our
decision.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
