22 N.Y.S. 1019 | N.Y. Sup. Ct. | 1893
By this action it is sought to invalidate the residuary clause in the will of Harriet Gross, deceased, which reads as follows:
“X give, devise, and bequeath unto my executor hereinafter named all the rest, remainder, and residue of my personal estate, to be distributed by him according to the instructions given him by nie.”
Upon the trial it was not shown, either by writing or by paroi, what these instructions were. The only testimony looking to this end was that given by a son of the executor, who testified that his father told him “that he had received instructions from Harriet Gross to dispose of that residuary portion as he pleased, ‘only so
We think that the objection to such evidence was valid upon the last ground stated, if upon no other, but it is not necessary to place our decision upon this ruling, because, if regarded as competent evidence, and full force and effect be given to it, it would not change the conclusion to be reached; for it will be observed that no suggestion is made as to who were to be the beneficiaries under the residuary clause, the testimony being directed to showing that the testatrix expressed a wish, and gave instructions, to exclude her brother and sisters, towards whom, it would appear, she occupied an unfriendly attitude. If, therefore, the clause is to be construed as a trust, and not as an absolute gift to the executor, personally, then the only trust suggested is one to keep the property out of the hands of the next of kin. That such a trust is neither valid, nor within those enumerated and permitted by statute, requires no discussion. Ás said in Holland v. Alcock, 108 N. Y. 312, 16 N. E. Rep. 305:
“The existence oí a valid trust, capable of enforcement, is consequently essential to enable one claiming to hold as a trustee to withhold the property from the legal representatives of the alleged donor.’’
And upon the theory of a trust it is void for uncertainty, because no beneficiaries are designated, nor is there anything from which the court can determine who were intended to be the beneficiaries of the testatrix’s bounty. In Tilden v. Green, 130 N. Y. 29, 45, 28 N. E. Rep. 880, the court say:
“The remark of Judge Wright in Levy v. Levy, 33 N. Y. 107, that, ‘if there is a single postulate of the common law established !by an unbroken line of decisions, it is that a trust without a certain beneficiary, who can claim its enforcement, is Aroid,’ has been repeated and reiterated by recent decisions of this court, (Prichard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 N. Y. 312, 16 N. E. Rep. 305; Read v. Williams, 125 N. Y. 560, 26 N. E. Rep. 730;) and- the objection is not obA’iated by Hie existence of a power in tire trustee to select a beneficiary, unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain who were the objects of the power.”
It is unnecessary, however, to further pursue the question of whether this is or is not a trust, for we do not think that the appellant relies upon this ground; his contention being that the executor, under the bequest, takes the absolute interest in the property bequeathed. It is insisted that the language used gave to the executor, in trust for himself, an absolute interest; that the beneficiary was definite and certain, and he was to do with the property as he pleased. That this contention is unsound, we think is apparent, not only from the wording of the residuary clause itself, but by a consideration of the entire will. We think that the language di
It is suggested that the effect of this construction is to permit the very persons to obtain a large portion of her estate whom the testatrix intended to exclude. We are not responsible, however, for her failure to carry out her verbally expressed intention to exclude her brother and sisters, who were her only heirs and next of kin. Under the law, these would take property which by will had' not been otherwise disposed of; and as the law requires a valid' disposition of one’s property, in order to prevent his heirs and next of kin from taking, an intention to exclude them cannot be rendered' effectual where the person, without having made any disposition of' the property, with respect thereto dies intestate. We are of opinion, therefore, that the exceptions should be overruled, and the motion denied, with costs and disbursements. All concur.