In re the Estate of Isenberg

OPINION OF THE COURT Buckley, P.J. Testator, who during his lifetime had acquired and displayed throughout his dwelling numerous paintings, statues, and other art objects by struggling local artists, provided in his will: “I give and bequeath to my sister, GLADYS ISENBERG BERGER, any and all household items which she desires to take from my principal residence after my decease. Anything which she does not take from my principal residence shall become part of my residuary estate.” Testator’s intent, as expressed in the will, was that his sister could select those “household items” that would be considered “household items” in her own home, i.e., items that sLe desired to keep. The remainder of testator’s property, if any remainder existed, would then pass to the four residuary beneficiaries. The will did not mention any other type of items, and the only other special bequests were of sums of money. The Surrogate correctly ruled that this bequest of “household items” included all the artwork in testator’s home, whether on display or stored in a closet (see In re Smedley’s Estate, 69 NYS2d 542 [1947]). Contrary to petitioner’s contention, the elderly sister, who was living in Massachusetts at the time of her brother’s demise, was not required to travel to the latter’s New York apartment and physically remove each piece of art she desired. The record demonstrates that testator’s sister affirmatively selected those pieces of art that she wanted, although this selection was actually carried out by her son, who was one of the four residuary beneficiaries. To the extent she gave away or sold some of those pieces of art, the Surrogate properly ordered their return, as well as the proceeds from any sale, to the estate for distribution to the residuary beneficiaries in accordance with paragraph eighth of the will (see Matter of Gano, 203 Misc 718 [1952]). With respect to the partial dissent’s position that the sister never made any selection, her very actions of keeping some objects but giving away or selling others demonstrate that she chose certain pieces of art. While that might not have been particularly considerate of the residuary beneficiaries, the will [122] placed no limitation on the number or percentage of items she could select, nor did it stipulate that she evince a particular level of sentimental or aesthetic appreciation towards them. Accordingly, the order of the Surrogate’s Court, New York County (Renee R. Roth, S.), entered on or about December 6, 2002, which, to the extent appealed from, determined that the term “household items” as used in paragraph fourth of the will encompassed the paintings, figurines, and other artwork in testator’s home, including those items on display and those stored in the closet, and allowed such items selected by the designated beneficiary to be collected and shipped to her without her retrieving them in person, should be affirmed, without costs.