Matter Of Levitan

134 A.D.3d 716 (2015)

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Nature of the Case

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Facts

The testator died leaving a will dated December 31, 1996. The testator had one son, D, who was born of a previous marriage. The testator's wife, P, has no issue. In Article Third of the will, the testator created a trust for the benefit of P during her lifetime. Upon the death of P, the remainder was to be distributed to or for the benefit of such one or more persons within a class composed of the testator's then living issue or d's living issue, 'in such estates, interests and proportions as d may appoint by specific reference to this power of appointment in her last will and testament, admitted to probate. If P failed to exercise or did not fully or effectually exercise her power of appointment, all property not effectually appointed was to be paid and distributed to five other named individuals. P commenced this proceeding to probate the will. D then petitioned for construction of Article Third of the will on the ground, that he had a vested remainder interest in the trust. D interprets the phrase in the second sentence providing that if Sydelle fails to exercise or does not fully exercise the power of appointment, the trust shall be paid and distributed to five other named individuals could only have had effect in the event that Gary predeceased the testator. P moved for summary judgment dismissing claiming that the will is clear and unambiguous and subject to only one interpretation, which is that the five named individuals who receive the remainder of the trust in the event that she does not exercise her power of appointment have a present vested interest in the trust remainder, subject only to divestment by the exercise of her power of appointment. P's motion was granted and D appealed.