148 N.Y.S. 691 | N.Y. App. Div. | 1914
This is an action to construe the will of Smith Ely, who died unmarried and childless at one o’clock on the morning of the
His personal estate was appraised at $666,216.84 and his real estate at $492,980.26, not including the value of decedent’s homeatNo. 47 West Fifty-seventh street appraisedat$37,868.43, which the codicil devised to his heirs.
By the 1st clause of his will he gave bequests to eleven individuals, five churches, to a cemetery and to his sister, Maria L. Yanderpoel, to whom he left his watches, jewelry, objects of art and bric-a-brac. By the 18th subdivision thereof he bequeathed $12,000 in trust to the United Charities, to devote the income arising therefrom to the payment of the expense of furnishing reading and musical entertainment from time to time to the blind paupers in charge of the city of New York.
By the 2d clause he bequeathed to his executors the sum of $200,000 in trust, to divide the same into four equal portions and to invest one such portion for the benefit of each of his three brothers and his one sister and to pay over the income arising therefrom during his or their life to such beneficiary. Upon the death of Ambrose K. Ely and Edwin A. Ely, respectively, he directed his trustees to pay over the principal of the trust held for their respective benefits to the American Sunday School Union; upon the death of his brother William H. Ely the trustees were directed to subdivide the principal of the trust fund for his benefit into two smaller shares and to pay over the rents, issues and profits from one of said smaller shares to each of his nieces, Julia E. Uriffen and Alice E. Chambers, during their respective lives, and upon their death the principal to their issue; on the death of his sister, Maria L. Yanderpoel, to pay over the rents, issues and profits of the fund held for her benefit to her son, Ambrose E. Yanderpoel, during his natural life, the principal to be paid to his issue; in the event of the death of both the said Maria L. Yanderpoel and the said Ambrose E. Yanderpoel, leaving no issue, to pay over and deliver the principal of the said trust fund to the New York Mission and Tract Society. By the 3d clause he provided for
“ Fourth. All the rest, residue and remainder of my property, both real and personal, of whatever kind and wherever situate, I give, devise and bequeath to my executors hereinafter named, in trust, however, to invest and keep the same invested and to pay over the' income arising therefrom in equal shares or portions to the following named persons and the survivors of them, during the lives of my grandnieces Majorie Smylie and Alice Chambers, and the survivor of them, or until the surviving beneficiaries are reduced in number to ten, when and in either event I direct my said trustees to pay over and deliver the principal of the trust fund to the surviving beneficiaries in equal shares or portions, to wit: ” (naming thirty-six different persons).
“Fifth. I hereby nominate and appoint William H. Ely, Dr. Porter F. Chambers, Ambrose E. Vanderpoel and Dr. S. Ely Jelliffe to be the executors of and trustees under this my will and hereby authorize and empower them and the survivors and survivor of them in their and his discretion to lease or sell all or any part of the real property of which I may died seized at such time and in such manner as to them or him shall seem best and to execute and deliver good and sufficient leases and conveyances thereof and also, either as executors or trustees, to retain all or any part of the investments or securities of which I may die possessed and to invest the moneys belonging to my estate in such securities as they may in their discretion deem best, whether the same be authorized by law or not; and I further authorize and empower my said executors, or such of them as may qualify, and their substitutes as herein provided, the survivors and survivor of them, to fill any vacancies which may occur in their numbers by nominating substitutes, such nominees to qualify, with the approval of the Supreme Court or Surrogate’s Court, in the same manner and to have the same powers and duties as if herein named. I further direct that no bonds or other security for the faithful performance of their duties be required of my said executors and trustees or of any of them or of their said substitutes.”
May 29,1907, testator executed a deed of trust to the United
And he reserved the right at any time during his life by an instrument in writing under his hand and duly acknowledged, to amend or revoke this trust deed and to change or terminate the trusts thereby created.
Attached to said deed was a fist of securities. The court has found that the value of the property held in said trust at the death of Smith Ely was $399,624.24. It remained in effect and unrevoked at testator’s death.
Of the forty-one ultimate beneficiaries named in this trust deed thirty-six were the same persons named as residuary beneficiaries under the 4th or residuary clause of the will and the trust estate was limited dn the same two lives or the reduction of the surviving beneficiaries to ten. June 11, 1909, Mr. Ely executed a codicil to his will of March 1, 1906. By this he revoked the bequest made by the 18th subdivision of paragraph 1, and all of the provisions of the 4th or residuary clause.
He gave and devised to his sister, Maria L. Vanderpoel, and his brothers, William H. Ely and Edwin A. Ely, the survivor and survivors of them, all his right, title and interest in and to the house and lot known by the street No. 4/7 West
He made bequests to twenty-six additional individuals, four additional churches and to the Morris County Children’s Home.
The 4th clause, a substitute for the 4th clause of his will, specifically revoked, provided as follows:
“ All the rest, residue and remainder of my property, both real and personal as well that which I may hereafter acquire as that which I now possess, I give, devise and bequeath to the Hew York City Mission and Tract Society, The American Sunday-School Union, The Children’s Aid Society, The Hew York Juvenile Asylum, The Hew York Association for Improving the Condition of the Poor, the Orphan Asylum Society in the City of Hew York, the Lincoln Hospital and Home and the Prison Association of Hew York to be divided equally among them and to be held by each as an endowment fund named after the late Ambrose E. Ely, deceased.” Save as modified he ratified and affirmed hie will.
By the codicil admitted to probate executed June 23, 1911, he again revoked the 18th subdivision of the 1st paragraph of his will and all of the provisions contained in paragraph 4, which disposed of the rest, residue and remainder of his property in trust for the benefit of the thirty-six persons named therein. He revoked the appointment of the four executors named in paragraph “Fifth” of his will and in their place and stead appointed Cheever H. Ely, George B. Vanderpoel and Ambrose E. Vanderpoel executors and ratified all the other provisions of the said 5 th paragraph. He renewed the devise in the codicil of 1909 to his sister and to his brothers, William H. Ely and Edwin A. Ely, the survivors or survivor of them, of 47 West Fifty-seventh street and the Ely homestead farm and other real property at Livingston, H. J., “ all of the said parcels of real property to be divided among them share and share alike.”
He bequeathed to his executors $20,000 in trust to be invested and to pay over the net income thereof to Adelaide V. Ely
By the 5th clause he gave and bequeathed various sums of money to forty different persons, twenty-three of whom had been included in the 1909 codicil, three only named in said codicil being omitted. The four churches there named were included, three having their legacies increased; the legacy of the Morris County Children’s Home at Parsippany, N. J., was increased from $18,000 to $50,000; and the following new bequests were made: to the Fresh Air Home for Crippled Children known as “ Sea Breeze ” at Coney Island, N. Y., the sum of $50,000; to the East Side Mission of the Madison Square Presbyterian Church of the City of New York the sum of $50,000; to the West Side Day Nursery of the City of New York the sum of $10,000; to the Spring Street Presbyterian Church of the City of New York the sum of $10,000; to the Orange Memorial Hospital of Orange, N. J., the sum of $50,000; to the Morristown Memorial Hospital of Morristown, N. J., the sum of $50,000; and to the Overlook Hospital of Summit, N. J., the sum of $50,000, “provided that the said several sums of fifty thousand dollars shall be used by the said hospitals respectively to endow, in perpetuity, as many beds therein as the said several sums of fifty thousand dollars will permit, according to the by-laws of the said respective hospitals. The said beds shall be occupied by such persons as may be designated from time to time by my brothers and sister and their direct descendants.”
“ Seventh. After the payment of all other legacies and of the transfer taxes which may be lawfully imposed upon them, as in my will provided, I give and bequeath to The Children’s Aid Society of the City of New York, the sum of one hundred thousand dollars; to The New York Society for Improving the Condition of the Poor, of the City of New York, the sum of one hundred thousand dollars; to The Board of Church Erection of The Presbyterian Church in the United States, the sum of one hundred thousand dollars; and to The New York City Mission and Tract Society, of the City of New York, the sum of one hundred thousand dollars. Provided that the said several sums of one hundred thousand dollars shall each constitute
The court found that before executing such codicil testator devoted much time to preparing memoranda of the legacies to be given thereby, computing the aggregate amount of such legacies and estimating the value of his real and personal property; that he had in his possession a complete list of his personal property, and that list contained the market value as of the 5 th day of June, 1911; that while he was fixing the amounts of the legacies to be given, he computed the value of his personal property as shown by said list set forth therein as of the 5th day of June, 1911, at $639,802; that testator also had in his possession a list of his real property and while preparing instructions for this codicil he computed the aggregate value thereof, and exclusive of the property specifically devised it was about $600,000 — at the time of his death it had been found to be $456,111.77; that the legacies given or attempted to be given by the codicil to said will amount to $937,000, and with the legacies given or attempted to be given by the said will, aggregate $1,181,000; and that the value of testator’s entire personal property at the time of executing such codicil and at his death was about $660,000, and at the time of executing such codicil testator knew that his personal property was insufficient’to pay the legacies given thereby.
The debts of the testator, which were paid, amounted to $1,179.57.
Within a period of three years before his death the said
That the testator in using the words “personal estate” in paragraph 7 of the codicil to his will intended to distinguish between his own estate and that held in trust for his benefit under the trust deed made by him and above set forth; that the codicil was drawn by Ambrose E. Vanderpoel, a nephew of the testator and a son of his sister, Maria L. Vanderpoel, and the instructions for said codicil were given orally and were not taken down by said Vanderpoel; that he did not advise the testator that the effect of the last clause of paragraph 7 of the codicil as drawn by him would, if the language thereof was given its technical meaning, result in the testator dying intestate as to all his real property not specifically devised; that the testator intended to charge the payment of the legacies given by his will upon the real property not devised by him.
That the testator intended that all of the legacies given by his will and codicil should be paid in so far as bis real property not specifically devised and personal property might be sufficient therefor.
And as conclusions of law that the legacies given by the will and the codicil thereto are charged upon the real property of which he died seized and which was not specifically devised by. him; that the power of sale given to the executors is a valid. power, and should be exercised by them for the purpose of paying the legacies given by his will and the codicil thereto and the transfer and inheritance taxes; that the legacy given by subdivision 17 of article 1, to Ely Cemetery, in amount $5,000, is invalid; that the legacy to the Hew York Society for Improving the Con
That after the payment of all valid legacies and all transfer and inheritance taxes thereon, the executors should pay to the defendant, the Board of the Church Erection Fund of the General Assembly of the Presbyterian Church in the United States of America, the legacy given by article 1 of the codicil to said will to the Board of Church Erection of the Presbyterian Church in the United States.
That all of the legacies given by the said will and codicil and not hereinabove held to be invalid or to have lapsed, are valid legacies; that all rentals which became due in advance on the 1st day of July, 1911, upon property of which the testator died seized belonged to testator’s estate and should be distributed as a part thereof.
From the judgment entered thereon the defendants Maria L. Vanderpoel, Edwin A. Ely and M. Josephine Ely, individually and as executrix, appeal from the part thereof adjudging that the legacies are charged upon the real property not specifically devised; that the power of sale should be exercised for the purpose of paying the legacies and the transfer and
The Hew York City Mission and Tract Society appeals from so much of the judgment as decrees that the legacy of $100,000 given to it is invalid; the Hew York Association for Improving the Condition of the Poor appeals from so much of the judgment as adjudges that the legacy of $100,000 to it is invalid, and the legacy of $50,000 to the Fresh'Air Home for Crippled Children, known as “ Sea Breeze,” is invalid. The Attorney-General appeals from so much of the judgment as declares the $50,000 legacy to the Fresh Air Home for Crippled Children, known as “ Sea Breeze,” is invalid.
First. I am of the opinion that the testator intended that the legacies provided for by him should be paid; that he knew that the amount of his personal property was insufficient in and of itself to satisfy all the legacies; that he, therefore, intended that they should be charged upon his real estate, and that the will should be so construed. He had been mayor of the city of Hew York, and had occupied other public positions. He was eighty-six years of age, and had never married. His nearest relatives and natural heirs were two unmarried brothers and a married sister near his own age, each possessing a large and independent estate. Within a few years his brother, Ambrose K. Ely, had died, leaving an estate of about $6,000,000, much of which the family inherited. Certain of the large donations in the will were prescribed to be to perpetuate his memory. The will was the result of a number of years of thought and change. He remembered and took care of a lai’ge number of friends and relatives. He was a generous and public-spirited man who had given away during his lifetime large amounts. The changes in the testamentary provisions, illustrated by the will and the two codicils, in some instances grew out of the fact that he had made previous provision before his death which accounted for omission in the last codicil. By the trust deed he left a separate estate consisting entirely of personal property of $400,000, untouched and unaffected by the will, but illustrating his widespread interest in his friends and his care
In Taylor v. Dodd (58 N. Y. 335) testator provided in his Will for a large number of legacies, but there was no residuary clause. By a codicil he gave power of sale to his executors. In an action to construe the will the trial court found no satisfactory evidence of an intent on the part of the testator to charge his real estate or any part of it to the payment of legacies and held that his real estate was not so charged. For the Court of Appeals, Judge Folder said: “The personal estate of a testator is to furnish the fund for the payment of legacies. This is the general rule.- But the personal estate may be entirely exonerated, or the real estate may be made to aid the personal, if there be express direction to that effect in the will, or if such be the clear intent of the testator to be
Referring to the power of sale given to the executors by the codicil: “There are but two purposes disclosed by the will. One is the creation of the fund for the improvement, by the application of the income thereof, of the cemetery lot. The other is, the payment of the various legacies given by the will.
“It is plain that the testator was earnest and sincere in the gift of these legacies. They are made with a purposeful discrimination and thoughtfulness. The claims of blood are remembered and considered.' Gratitude for favors done and kindness shown enters into them. So does a design to reward faithful service. They were none of them made in a trifling disposition, nor without cordiality. They were not meant to be nugatory or unavailing. When we find, then, after the testator has made his will, and after an interval for consideration, a power given by the codicil to his executors, to sell any and all parts of his real estate in their discretion, * * * and there appears no other cause for giving such power, nor any other considerable object for its exercise, than the possible need of money for the payment of the legacies, we find there the intent of the testator manifested, that the real estate should be converted, if need be, in aid of the personalty, so that the legacies might not go unprovided for. * * * As in the contemplation of the will and codicil, there was substantially no need of money, save for the payment of legacies, so the power to sell to meet that need must be to get money for that payment.”
And the judgment of the General Term reversing the trial court was affirmed.
In Kalbfleisch v. Kalbfleisch (67 N. Y. 354), where legacies were not expressly charged upon real estate but by a codicil, the executors were given a power to sell. Folder, J., said: “When, then, we find in this codicil this power of sale, with no other purpose hinted at, and with no other object appearing for the exercise of it, than to make sure of a fund for these pecuniary legacies, we are led, as we were by like considerations in Taylor v. Dodd, to conclude that the testator meant that the residuary real estate should, or might be, converted in
In Hoyt v. Hoyt (85 N. Y. 142), in an action brought to have legacies charged upon real estate, Eolger, Oh. J., said: “ There is no express direction in this will that these legacies be charged upon the real estate. Yet legacies maybe charged upon real estate without express direction in the will, if the intention of the testator so to do can be fairly gathered from all the provisions of the will; and extraneous circumstances may be considered in aid of the terms of the will. The will'in this case is lean of the clauses and expressions that have been mainly rested upon in the earlier adjudications of this State as showing that intention. It does not direct the legacies to ‘ be first paid,’ and then devise the real estate; it does not devise the real estate, nor the remainder of the real and personal estate, ‘after the payment of the legacies;’ it does not devise the real estate to a person in his own right, or as executor, and expressly direct him to pay the legacies. It does not make a residuary devise of ‘all not herein otherwise disposed of.’ These several forms of expression have been held to indicate an intention in the testator to charge the payment of the legacies upon the real estate devised. Hone of them are here. * * * It is assumed that.no man, in making a final disposition of his estate, will make a legacy, save with the honest, sober-minded intention that it shall be paid. Hence, when from the provisions of a will prior to the gift of legacies it is seen that the testator must have known that he had already so far disposed of his personal estate as that there would not be enough left to pay the legacies, it is reasoned that the bare fact of giving a legacy indicates an intention that it shall be met from real estate. So it was reasoned in Goddard v. Pomeroy [36 Barb. 546, 556].”
There was a power of sale given by the codicil in this case and the court again said: “It is so, then, that this power of sale thus given and thus worded is of much significance in getting at the intention of the testator. And we can but draw
In McOorn v. McCorn (100 H. Y. 511), in an action to have a legacy adjudged to be a charge upon the real estate, Finch, J., said: “Whether a legacy is charged upon the real estate of the decedent is always a question of the testator’s intention. The language of the will is the basis of the inquiry, but extrinsic circumstances which aid in the interpretation of that language, and help to disclose the actual intention, may also be considered. * * * His personal estate was insufficient even to pay his funeral expenses, and the two legacies to the widow and son were mere mockeries unless meant to be a charge upon the real estate. The testator must have known that he had no personal estate with which to pay the smallest portion of his bequests, and unless he meant to charge them upon the land we must impute to him the deliberate and conscious intention of making bequests to his wife and son which he knew could never be paid. * * * The situation is such that all possibility of innocent mistake is removed, and the facts drive us to the alternative of believing that the testator in making his last will, under the solemnity of approaching death, indulged in bequests known to be useless and vain, or meant that they should be paid from the only possible source. Ho reasonable intelligence can hesitate to draw the latter inference.”
In Irwin v. Teller (188 N. Y. 25) it was found by the trial court that testator left no personal property. The court said: “Starting out with these findings, the conclusion follows under the settled law of this State that these legacies are a charge upon the real estate of the plaintiffs devised to them by the testator. In Brill v. Wright (112 N. Y. 129) this question was thoroughly discussed by Andrews, J. The learned judge says: ‘ * * * We think the cases in this State establish these two propositions: First. That general language in a will, giving legacies, followed by the usual residuary clause, is alone
In Briggs v. Carroll (117 N. Y. 288) Judge Finch, writing for the court, cites with approval Brill v. Wright (supra) and McCorn v. McCorn (supra). Referring to the merits of the case in which he was writing he said: “The testator,by his will gave to his wife a legacy of $2,500 to be accepted by her in lieu of dower; to his son Charles $1,500, ‘to be held and used by his mother as necessity might require for his education;’ and to his grandson, the plaintiff, $500. * * * Here were legacies of $4,500 with hut $1,500 worth of personal property out of which to pay them. One of these was in lieu of the wife’s dower, and another for the education of the son Charles. The declared purpose of each gift leads strongly to an inference that the testator did not suppose that they would, or mean that they should, abate, and he largely reduced. * * * Either he intended to sacrifice the comfort and welfare of his wife and son Charles for the benefit of his older and married children, and deliberately continued to make their situation worse by putting personal estate into land and incurring debts, or he supposed that their legacies would rest upon his real estate. I think we are justified in holding that the latter was his understanding of the will.”
In Richardson v. Richardson (145 App. Div. 540) Rich, J., said: “The testator knew'when he executed his will that his personal property was insufficient to pay even the amount he had determined his executors should receive for their services, and it is not to be presumed that he intended to prefer the corporations to the exclusion of his own kindred, and it is noticeable that he disposed of both his real and personal prop
The heirs appellant rely upon Fries v. Osborn (190 N. Y. 35), but that case is clearly distinguishable. In that case there was no mention or disposition of any real estate and there was no power of sale conferred upon the executors. Judge Hiscock said: “Many cases have been cited by the learned counsel for the respondent, and many more might have been added in which extrinsic evidence has been allowed to aid the court in interpreting provisions of wills which gave legacies and disposed of real estate, and whereby the conclusion was aided that the devise of the real estate was made subject to the payment of the legacies. But no case has been cited, or, as we believe, can be found, in which it has been decided that evidence extrinsic to the will may be made the basis of construing into the will provisions charging real estate with the payment of legacies where the will as actually written by the testator contained not one word even indirectly relating to this subject, and was absolutely silent upon the subject of the testator’s real estate, not taking notice or disposing of it in any way whatever.”
In the case at bar there was a disposition of certain of the real estate and there was a power of sale.
Second. I think the learned Special Term was right in determining that the legacy of $50,000 to the Overlook Hospital was valid. For some time before and at the time of testator’s death William H. Lawrence conducted a hospital at Summit, H. J., known as Overlook Hospital. It was neither incorporated nor was it an unincorporated association. It was con
Trustees of Sailors’ Snug Harbor v. Carmody (211 N. Y. 286) is the latest of a long line of cases in this State construing chapter 701 of the Laws of 1893, as amended and revised. Hogan, J., said: “In construing the statute, this court held that the Legislature intended by that law to restore the law of charitable trusts as declared in the case of Williams v. Williams (8 N. Y. 525), which holds that the law of charitable uses as recognized in England prior to the Eevolution was in force in this State. (Allen v. Stevens, 161 N. Y. 122; Matter of Griffin, 167 N. Y. 71; Bowman v. D. & F. M. Society, 182 N. Y. 494; Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, 206 N. Y. 601.)”
We think that this legacy created a trust for charitable uses and that if no trustee competent to take had been named the legacy would not have failed. (Matter of Miller, 149 App. Div. 113.) In Manley v. Fiske (139 App. Div. 665; affd., 201 N. Y. 546) the court, in sustaining a gift as for charitable uses, said: “ It is next contended, however, that the statute was intended only to save trusts for charitable uses, and that no trust was
A hospital is one'of the earliest forms of charitable uses, and a gift to endow beds in a hospital in perpetuity obviously imports a charitable trust. As the Overlook Hospital is now incorporated and is by its charter empowered to maintain beds and to receive legacies, bequests and donations by will or otherwise for such purposes, and the by-laws of said hospital provide that free beds may be endowed in perpetuity, the decision of the Special Term that the Overlook Hospital is entitled to take said legacy is right.
Third. The Hew York City Mission and Tract Society appeals from so much of the judgment as decrees the legacy of $100,000 given to it is invalid. This society was incorporated by special act (Laws of 1866, chap. 63, as amd. by Laws of 1870, chap. 27; Laws of 1890, chap. 418, and Laws of 1896, chap. 505). The codicil which contains the legacy of $100,000 to this society was executed eight days prior to the death of the testator and hence was within two months thereof. Section 19 of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18), formerly part of section 6 of chapter 319 of the Laws of 1848 (as amd. by Laws of 1903, chap. 623), provides: “ Ho such devise or bequest [to any institution or corporation formed under laws of eighteen hundred and forty-eight, chapter three hundred and nineteen] shall be valid, in any will which shall not have been made and executed at least two months before th e death of the testator. ” In Kerr v. Dougherty (79 N. Y. 327-340) the court held that a bequest to this identical society was invalid because of the provision of chapter 319 of the Laws of 1848. The appellant urges that as section 19 of the Decedent Estate Law was absolutely repealed by chapter 857 of the Laws of 1911, which became a law on July twenty-ninth of that year, more than two weeks before the admission of decedent’s will to probate and less than a month after he died, it is entitled to take. But the will speaks from the
Fourth. The New York Association for Improving the Condition of the Poor appeals from so much of the judgment as adjudges that the legacy of $100,000 to it is invalid and the legacy of $50,000 to the Fresh Air Home for Crippled Children known as “ Sea Breeze ” is invalid, and the Attorney-General appeals from so much of the judgment as declares the latter legacy invalid.
The New York Association for Improving the Condition of the Poor was incorporated December 16, 1848, under the provisions of chapter 319 of the Laws of 1848. Therefore, the bequest to it of $100,000 was invalid under Kerr v. Dougherty (supra); Stephenson v. Short (92 N. Y. 433) and Matter of Cooney (112 App. Div. 659). As to the Sea Breeze Hospital the court has found: By the gift to the Fresh Air Home for Crippled Children, known as “ Sea Breeze,” Coney Island, N. Y., contained in subdivision 42 of article 5 of the codicil to the last will and testament of Smith Ely, the testator intended the hospital for crippled children at Coney Island, part of the work known as Sea Breeze which is affiliated with the New York Association for Improving the Condition of the Poor. The said hospital at Sea Breeze is an unincorporated charity, which, though affiliated with the New York Association for Improving the Condition of the Poor, is a self-governing body. It is managed by boards and officers of the corporation with the assistance of an advisory medical board exclusively attached to this hospital and not to any other activity of the New York Association for - Improving the Condition of the Poor. And as conclusion of law that the said legacy is invalid. Mr. Opdycke, the vice-president of the New York Association for Improving the Condition of the Poor, testified: “ Sea Breeze Home, the convalescent work and rest cure arrangements for the old and babies, and so forth, is carried on solely, supervised solely, by officers and committees of our Association. The hospital work is carried on, not only by those officers and members of the Board of Trustees, but also by a medical advisory Board, who have nothing whatever to do with our
I regret to be forced to the conclusion that Sea Breeze is in fact the Hew York Association for Improving the Condition of the Poor, and that as a bequest to that association under this codicil is invalid, this bequest is invalid.
The absolute gift cannot be sustained to “ Sea Breeze ” if it be considered as an unincorporated voluntary association independent of the Hew York Association for Improving the Condition of the Poor, under Fralich v. Lyford (107 App. Div. 543; affd., 187 N. Y. 524).
Fifth. The heirs appeal from that part of the judgment which provides that certain rents, amounting to $1,355.42, which became due in advance on the 1st day of July, 1911, under certain leases made by the testator upon property of which the testator died seized, and which was not specifically devised by him, belonged to testator’s estate and be distributed as part thereof. The testator died at one o’clock a. m., July 1, 1911. Section 2712 of the Code of Civil Procedure provides: “The following shall be deemed assets and go to the executors or administrators, to be applied and distributed as part of the personal property of the testator or intestate, and be included
There seem to be no New York cases upon the. precise point here involved, but it is the general rule that the law does not take into account fractions of a day. As, therefore, the testator was alive and in possession of the property upon the day upon which the rents accrued, we conclude that the Special Term correctly decided that said rents belonged to his estate.
The judgment appealed from should be affirmed, with costs to all respondents filing briefs upon the appeal.
Ingraham, P. J., and Hotchkiss, J., concurred; McLaughlin and Scott, JJ., concurred, except as to Sea Breeze, as to which they dissented.
Judgment affirmed, with costs to all respondents filing briefs upon the appeal. Order to be settled on notice.