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In the Matter of the Estate of Eugenia Herceg

Surrogate's Court, Broome County
747 N.Y.S.2d 901 (2002)


Eugenia Herceg died leaving a will, executed in 1999, that included a residuary clause. However, the residuary clause did not name the intended beneficiary. The lawyer who drafted the will explained that the drafting software apparently failed to print the beneficiary's name. Columba Pastorino (plaintiff), Herceg's executrix, petitioned to have the residuary clause construed as naming Herceg's nephew, Sergio Pastorino, as beneficiary. The nephew had been named residuary beneficiary in Herceg's previous will, which was executed in 1997. The nephew died before Herceg, and under the 1997 will Columba Pastorino succeeded the nephew as Herceg's beneficiary. Herceg's niece, who would have been one of the beneficiaries under the law of intestacy, disclaimed any desire to do so and supported Columba Pastorino's petition. In considering Pastorino’s petition, the surrogate’s court faced two conflicting lines of precedent: (1) that a court should not supply terms that are missing from a will, and (2) that a court should strive to ascertain the testator's objective so as to avoid intestacy.

Rule of Law


Holding and Reasoning (Peckham, S.)

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