In re Bettie Rosen Irrevocable Trust

—In a proceeding to rescind and cancel a trust, Sharon Rogoff appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Nassau County (Radigan, S.), dated June 6, 1996, as granted partial summary judgment to the petitioner. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. An ambiguous devise of the property in a will or a trust may be interpreted or construed by a court, but a missing devise cannot be inserted (see, Dreyer v Reisman, 202 NY 476; see also, Matter of Durkin, 165 Misc 366). Since the grantor had no obligation to fund the trust, and the trust instrument failed to set forth the property intended to be included in the trust res, the Surrogate’s Court correctly granted partial summary judgment to the petitioner. Ritter, J. P., Sullivan, Krausman and Luciano, JJ., concur.