Matter of Estate of Grossman, 38 N.Y.2d 565 (1976)

When calculating a testamentary bequest expressed as a fraction of the estate, property held by the testator in tenancy by the entirety does not form part of the testator’s estate.

Summary

This case concerns the proper calculation of a wife’s bequest from her husband’s will. The will provided the wife with a fraction of the “estate remaining after the deduction of debts, funeral and administrative expenses.” The dispute centered on whether real property held by the husband and wife as tenants by the entirety should be included in the calculation of the ‘estate’. The court held that because the husband’s interest in the property terminated upon his death, the property was not part of his estate for the purposes of calculating the bequest. This affirmed the principle that a will speaks from the time of death unless a contrary intention is expressed.

Facts

The decedent’s will provided a general bequest for his wife, calculated as a fraction of the estate remaining after deductions. At the time of his death, the decedent held two parcels of real property with his wife as tenants by the entirety. A dispute arose regarding whether these properties should be included when calculating the value of the estate for the purpose of determining the wife’s bequest.

Procedural History

The lower court determined that the properties held in tenancy by the entirety should not be included in the calculation of the estate. This decision was appealed. The Court of Appeals affirmed the lower court’s order.

Issue(s)

Whether real property held by the testator and his wife as tenants by the entirety should be included in the calculation of the testator’s “estate” for the purpose of determining the amount of a bequest expressed as a fraction of the estate.

Holding

No, because upon the decedent’s death, his interest in the tenancy by the entirety property ceased to exist and could not be passed by will; therefore, it was not part of his “estate.”

Court’s Reasoning

The court reasoned that a will speaks from the time of death unless the testator expresses a contrary intention. The will in this case did not provide any specific definition of “estate” that would override this general principle. Upon the husband’s death, his interest in the properties held as tenants by the entirety extinguished. As the court stated, “In this case, the decedent, upon his death, ceased to have any interest which he could pass by will in the two parcels of realty which he and his wife had come to hold as tenants by the entirety.” Because the decedent could not pass the interest by will, the properties were not part of his estate. The court cited several cases supporting the principle that property held in tenancy by the entirety is not part of the estate for distribution under a will, including Sulz v Mutual Reserve Fund Life Assn., 145 NY 563, 574 and Matter of Basile, 63 Misc 2d 845, 846. The court found no expression of intention in the will to suggest that the term ‘estate’ should be interpreted differently than its common legal meaning. The absence of such an intention meant that the general rule applied, and the tenancy by the entirety property was excluded from the calculation of the widow’s bequest.