25 Misc. 253 | N.Y. Sur. Ct. | 1898
The decedent died September 1, 1894, within two months after the execution of his will. Consequently, by force of the statute (Laws 1848, c. 319), the devise to St. Joseph’s Home for the Aged is invalid, the institution in question having been incorporated under and pursuant to that act. The testator, however, by a subsequent clause of his will, provides that, if the said bequest to St. Joseph’s Home should for any reason be invalid, then and in that case he gives, devises, and bequeaths unto the sister superior or reverend mother who shall at the time of his death be in charge of the St. Joseph’s Home for the Aged all the property he had' attempted to bequeath to said home. In order to sustain a trust the beneficiary need not be described by name; any other designation or description by which he can be identified will suffice. Nor is it an objection that the trust is for the benefit of one who shall for the time being perform certain duties, and that the beneficiaries may change. It is not material to the validity of a legacy that the legatee should be definitely ascertained and known at the date of the will, or at the death of the testator. It is sufficient if he is so described that he can be ascertained and known when the right to receive the legacy accrues. Holmes v. Mead, 52 N. Y. 332; Power v. Cassidy, 79 N. Y. 610; Shipman v. Rollins, 98 N. Y. 328; Tilden v. Green, 130 N. Y. 72, 28 N. E. 880. It is in evidence here that Mary Rose Dolan, who now claims the bequest, was the sister superior and reverend mother in charge of the St. Joseph’s Home at the time of the testator’s death. The bequest is an absolute one upon its face, not coupled with any trust, not limited or directed to be applied to any charitable use or to any use other than that of the legatee named. It is claimed by the next of kin of the testator, on the issue now presented under section 2624 of the Code of Civil Procedure, for the determination of the surrogate as to the construction, validity, and effect