In re the Estate of Burstein

Decree unanimously reversed on the law without costs and petition granted, in accordance with the following memorandum: The Surrogate erred in decreeing "that the Testatrix did not give the Trustees general power to invade the principal of the trust of Larry Burstein”. "The first principal in all construction proceedings is the intention of the testator as expressed in [her] will, and all other rules of interpretation are subordinate to this primary one” (Matter of Symonds, 79 AD2d 24, 25). This intent "must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed” (Matter of Fabbri, 2 NY2d 236, 240; see also, Matter of Shannon, 107 AD2d 1084, 1085). In her will, the testatrix provided: "Anything herein contained to the contrary notwithstanding, my Trustees may, at any time and from time to time, pay over to any person for whom a share of my residuary estate is held in trust, so much or all of the principal of such share as my Trustees may, in their sole and absolute discretion, deem advisable, which payment shall be absolute and free from all trust, and the judgment of my Trustees as to the amount of such payments and the advisability thereof shall be final and conclusive upon all persons interested or who may become interested in my estate”. Clearly the intent of the testatrix, as gleaned from a sympathetic reading of the will in its entirety, was to permit the testamentary trustees, in the exercise of their unfettered discretion, to invade the principal of the trust, in part or in whole. In our view, this provision is broad enough to encompass a power by the trustees in their absolute discretion to pay all of the principal of the trust to the beneficiary thereof. 989 (Appeal from decree of Erie County Surrogate’s Court, Matina, S. — will construction.) Present — Callahan, J. P., Boomer, Green, Lawton and Davis, JJ.