I concur with my brethren that when defendant Union Mutual became a stakeholder it waived the necessity of compliance with the change of beneficiary provisions of the annuity policy and that accordingly the issue to be determined here only concerns whether the testator intended to change the beneficiaries of that annuity in his will. The majority has concluded that Dr. Kane did not intend to change the beneficiaries of the policy in question. The issue of Dr. Kane’s intent is presented here in the context of motions for summary judgment and accordingly such relief can only be granted to plaintiff or to defendants Kane if it can be said that the testator’s intent can be ascertained from this record “as a matter of law” (CPLR 3212, subd [b], emphasis added).
In my view the relevant provision of the will contains an ambiguity which requires a trial on the issue of Dr. Kane’s intent. The seventh clause thereof provides in relevant part that Dr. Kane bequeathed to the plaintiff “[a]ny interest or rights I may have with respect to any * * * Annuity which I shall have created with respect to my earned income” (emphasis added). The defendants Kane argue, and the majority holds, that this bequest refers only to an annuity created after the will was written because it is stated in the future perfect tense (“which I shall have created”) and thereby uses “words of future intent * * * [which] do not identify that which is already in existence.”
Gramatically the future perfect tense is used to indicate that an action or state is to be viewed as completed in *157relation to a specified time in the future (see IV Oxford English Dictionary, p 627; Webster’s Third New International Dictionary, p 926; Webster’s New World Dictionary of the American Language, p 589). It does not, however, necessarily indicate that the action referred to is to both commence and end after the words are spoken or written. Thus, if I were to say that “by the time I retire I shall have written 100 formal judicial opinions,” the one to whom I spoke would ordinarily understand me to mean that I expected that during my tenure as a Judge, both before and after I spoke, I would write a total of 100 such opinions. Similarly, when Dr. Kane wrote that he was bequeathing plaintiff any annuity which “I shall have created,” a reader of his will could reasonably understand him to mean that he intended her to have any annuity he created during his lifetime. Not every testator is a grammarian. Perhaps by using the word “shall” Dr. Kane intended to indicate futurity, that is he might, as the majority has held, have intended to refer only to an annuity created after he wrote his will. If that was his meaning, however, why did he use the adjective “any” in connection with the word “annuity”? Perhaps, as I believe the will can be read, he meant any such annuity created during his lifetime.
In short, it is my opinion that it cannot be said, as a matter of law, precisely what Dr. Kane intended. The clause is ambiguous and Special Term properly denied summary judgment to both parties. There should be a trial at which the draftsman of the will can be called to testify as to the testator’s instructions and any other available evidence as to intent can be adduced.
Finally, in this regard it must be stated that the second reason given by the majority for granting summary judgment to the defendants Kane again does not pursuade me that such relief should be granted as a matter of law. The second argument in the majority opinion is that because Dr. Kane knew how to, but did not, change the beneficiary of the subject annuity during his lifetime, he did not intend to do so by his will. Often clauses in wills are written as safety measures to insure that if the testator neglected to make some disposition of his property in his lifetime, his intention would nevertheless be carried out after his death. *158Similarly, individuals often use a will to accomplish a disposition of property after their death that they did not wish for a multitude of reasons to effect during their life. I think that the fact that Dr. Kane changed some of the beneficiaries of his other policies after he wrote his will is simply another factor to be considered in ascertaining his intent which should be presented to the trier of fact at the trial of this action.
Hopkins, J. P., Lazer and Thompson, JJ., concur; Damiani, J., dissents and votes to affirm the order insofar as appealed from, with an opinion.
Order of the Supreme Court, Kings County, dated April 23,1980, modified, on the law, by deleting the first decretal paragraph thereof and substituting therefor the following: “Summary judgment is granted to the defendants Kane pursuant to CPLR 3211 (subd [c]) and 3212 and it is declared that said defendants are entitled to the proceeds of the insurance in question as the surviving beneficiaries named in certificate No. 01-0-10046-9 of Group Annuity Contract No. 90111 issued by defendant Union Mutual Insurance Company, and defendant Union Mutual is directed to pay said proceeds to defendants Kane, subject to their option rights under the policy.” As so modified, order affirmed insofar as appealed from, without costs or disbursements.