220 A.D. 313 | N.Y. App. Div. | 1927
Estelle B. Crawford made and executed her last will and testament on November 4, 1925. She died on November 7, 1925, in the village of Monticello, Sullivan county, N. Y. The 13th clause of her said last will and testament reads as follows:
“ Thirteenth. I give, devise and bequeath all the rest, residue and remainder of my estate, including all trust funds created heretofore as soon as the respective trusts shall end, and the principal thereof be paid into my residuary estate, and including both real and personal property, and the real property of which shall be converted into cash by my executor as hereinafter provided, and
The question on the appeal is the validity of said 13th clause. In the probate proceeding before the surrogate the competency of the testatrix, her freedom from undue influence and the validity of the - execution of the will were all admitted. The appellant by her answer averred that the said 13th clause was made pursuant to article 7 of the General Municipal Law and that it was invalid under section 146 of that law because it was made less than two months before the decedent’s death. Section 146 of the General Municipal Law reads as follows:
“ § 146. Devises and bequests restricted. This article shall not be construed or held to authorize any devise or bequest whatever, unless the will was executed at least two months before the decease of the testator or testatrix, nor of more than one-half of the estate of the testator or testatrix over and above the payment of debts, liabilities and expenses, in case he or she shall leave a husband, wife, child, or parent him or her surviving.”
The court below held that the said 13th clause was valid. When the appeal was presented to us upon the former argument the validity of said clause was tested in oral argument and upon the
There must be an entire reconsideration of the appeal for the purpose of determining whether the object of the testatrix set forth in said 13th clause may be validly carried out under the provisions of the Education Law and other pertinent statutes or whether we must continue to infer that the testatrix relied solely upon the said provisions of the General Municipal Law to effectuate her purpose. It is a well-settled canon of construction of wills that, if possible, such construction as will prevent intestacy will be adopted rather than one which renders the will invalid. (Du Bois v. Ray, 35 N. Y. 162.) “ When either of two constructions is possible, one of which would be valid and the other invalid, the former will be preferred because it is presumed to accord with the actual intention.” '(Seitz v. Faversham, 205 N. Y. 197, 202.) We have before us the usual question of construction requiring a determination of the intent of the decedent from the face of the will. The appellant offered no evidence whatever to sustain a finding that the testatrix intended her object to be effectuated pursuant to article 7 of the General Municipal Law. The testatrix designated no law by name nor is there any intimation of such designation to be found from the circumstances surrounding the testatrix at the time of the execution of her will. If it is to be found at all it must appear upon the face of the will. The object she sought to attain is clear. The doubt, if any, is whether she intended it to be effectuated pursuant to said article 7 of the General Municipal Law or pursuant to any law under which her purpose might best be accomplished.
Section 59 of the Education Law (Laws of 1910, chap. 140) provides as follows:
“ § 59. Charters. Under such name, with such number of trustees or other managers, and with such powers, privileges and duties, and subject to such limitations and restrictions in all respects as the Regents may prescribe in conformity to law, they may, by an instrument under their seal and recorded in their office, incorporate any university, college, academy, library, museum, or other institution or association for the promotion of science, literature, art, history or other department of knowledge, or of education in any way, associations of teachers, students, graduates of educational institutions, and other associations whose approved purposes are, in whole or in part, of educational or cultural value deemed worthy of recognition and encouragement by the university. No institution or association which might be incorporated by the Regents under this chapter shall, without their consent, be incorporated under any other general law.”
Under subdivision 2 of section 1117 of the Education Law (as amd. by Laws of 1921, chap. 385, and Laws of 1922, chap. 345) it is provided as follows: “ The term ‘ association ’ library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, corporation, or as trustees under the provisions of a will or a deed of trust.”
Under section 1118-a of the Education Law (added by Laws of 1921, chap. 385) it is provided: “ Any authority named in Section eleven hundred and eighteen [county, city, village, town, school district, or other body authorized to levy and collect taxes] may grant money for the support of free association libraries provided such libraries are registered by the Regents.”
Examining the said 13th clause of the will in connection with the foregoing provisions we find that said provisions of the Education Law are perfectly adapted to effectuate every expressed purpose of the testatrix. We find moreover the mandatory provision of section 59 of the Education Law that if incorporation by the Regents may be accomplished under the Education Law, it shall not be accomplished under any other general law without the consent of the Regents. There is express authority for corporations organized under the Education Law to acquire by devise or bequest
The decree of the surrogate so far as appealed from should be affirmed, with costs to all parties to be paid out of the estate.
Van Kikk, Acting P. J., McCann, Davis and Whitmyeb, JJ., concur.
Decree affirmed, with costs payable out of the estate to all parties filing briefs.