In the Matter of the Estate of Eugenia Herceg

Eugenia Herceg's 1999 will included a residuary clause that, due to a drafting-software error, never named its intended beneficiary. Herceg's executrix, Columba Pastorino (plaintiff), petitioned to have the clause read as naming Herceg's nephew - who had been the residuary beneficiary under Herceg's earlier 1997 will and who, under that will, would have been succeeded by Pastorino had he predeceased Herceg, which he did. Herceg's niece, who would otherwise inherit under intestacy law, disclaimed her own interest and supported Pastorino's petition, leaving the court to choose between older precedent barring courts from filling in missing will terms and newer precedent favoring construction that avoids intestacy.