192 Misc. 618 | N.Y. Sur. Ct. | 1948
Four questions requiring construction of deceased’s will are presented in this proceeding for the settlement of the account of the executors. In the first paragraph of her will the testatrix directed her executors to give out'of her estate to a cemetery “ as a trust in perpetuity such reasonable sum as will produce an income sufficient for the perpetual care of said entire Bethel Cemetery.” The cemetery to which reference was made is maintained in conjunction with the Bethel Methodist Church in Beadsville, Missouri. In a subsequent paragraph of her will the testatrix made a bequest of $10,000 in trust “ to the trustees or other governing body of the Bethel Methodist Church, now located near Beadsville, Callaway Co., Missouri,” the income of which fund was directed to be applied to payment for the services of clergymen “ from time to time ministering to the congregation of said church.”
The capacity of the named legatees to take each of these bequests must be determined in accordance with the laws of
The testatrix bequeathed a share of her residuary estate ‘1 to St. Agnes Chapel (Trinity Church, New York City).” St. Agnes Chapel was established by the Trinity Church corporation and maintained by it. The ministers who served its parishioners were under the direct supervision of the church and Trinity was responsible for all of its' obligations. The chapel was not incorporated and functioned solely as a subsidiary body of the parent church. The fact that the legacy was made to the chapel, an unincorporated entity, requires the application of the rule in Kernochan v. Farmers’ Loan & Trust Co. (supra). The gift which the testatrix left to St. Agnes must therefore go to the parent church corporation and the court so holds.
The testatrix gave another share in her residuary estate to her sister Mrs. Lulu J. Machin who predeceased her. The text of the residuary clause was followed by a direction to the effect that “ if any of the legatees hereinabove named shall predecease me, then the bequest to the legatee so dying shall lapse and the amount thereof shall be disposed of as a part of my residuary estate. ’ ’ The court holds that the quoted text renders section 29 of the Decedent Estate Law inapplicable in respect of the gift to Mrs. Machin (Matter of Neydorff, 193 App. Div. 531; Matter of Rosenthal, 185 Misc. 168). The language of
Submit decree on notice construing the will in accordance with the foregoing and settling the account of the executors.