1 Misc. 2d 206 | N.Y. Sur. Ct. | 1955
This is a proceeding for settlement of the account of the trustees of the residuary trust and for construction of the will for the purpose of determining the devolution of a bequest of one third of the remainder. Testatrix died on July 11,1930, leaving a will in which she bequeathed her residuary estate in trust, $4,000 payable annually to the life beneficiary and the balance of the income to be divided equally among three charities: The Cathedral Church of St. John the Divine, Loomis Sanatorium, and St. Luke’s Hospital. At the death of the life beneficiary the remainder is given outright one third each to the
The life beneficiary died on June 26, 1952, and question has arisen as to the disposition of the bequest of one third of the remainder to Loomis Sanatorium.
From the date of its incorporation as a charitable institution in 1896 until 1938 the Loomis Sanatorium had been maintained for the treatment of tubercular and thoracic diseases, with hospital, laboratory, and research facilities. Prior to her death in 1930, testatrix had been a patient of the institution on a number of occasions. The institution suspended operation in 1938, was reopened in 1939, was closed from 1942 to 1944, and ceased to operate as a tubercular sanatorium in 1948 as the result of a directive issued by the New York State Department of Health. In 1950, the sanatorium sold all its real and personal property, paying the proceeds to the Bernarr MacFadden Foundation, Inc., in part payment for loans made to the sanatorium. By proclamation pursuant to the provisions of section 57 of the Membership Corporations Law, Loomis Sanatorium was dissolved on October 15, 1952. The dissolution was annulled on October 15, 1953.
The court is called upon to decide whether, under the circumstances disclosed at the hearing and in the stipulation filed herein, the bequest to Loomis Sanatorium has failed and, if so, to determine the legal consequences. St. Luke’s Hospital, one of the legatees, contending that the sanatorium was not qualified to receive the bequests at the date of death of the life tenant nor is it presently competent, urges the court to apply the doctrine of cy pres. The Attorney-General and the Cathedral Church of St. John the Divine, another residuary legatee, concur in these views. The next of kin and the special guardian for unknown distributees agree that Loomis Sanatorium is not qualified but contend that the one-third remainder lapses and passes to the intestate takers.
It thus becomes necessary for the court to decide whether the bequest lapses or devolves by application of the doctrine of cy pres. As the Loomis Sanatorium was an existing corporate entity at the date of death of the testatrix and at the time of the termination of the trust, there is no occasion to consider application, as urged by the special guardian and the next of kin, of the rule that an outright bequest to a named charitable corporation which at the effective date of the gift is not in existence passes by intestacy and not under the cy pres doctrine. (See Wright v. Wright, 225 N. Y. 329; Matter of Westheimer, 124 N. Y. S. 2d 784; Matter of Walker, 185 Misc. 1046; Matter of Joseph, 62 N. Y. S. 2d 197, and cf. Personal Property Law, § 12, subd. 2-a, and Beal Property Law, § 113, subd. 2-a.) The doctrine of cy pres is incorporated in section 12 of the Personal Property Law and section 113 of the Beal Property Law which provide that whenever it shall appear to the court that circumstances have so changed since the execution of an instrument containing a gift * * * to * * * charitable * * *
The language used in this will does not reflect an intention so to confine the bequest to the sanatorium as to bring about an intestacy in the event that intervening circumstances made it impossible for the institution to carry out the purposes for which it had been founded and with which the testatrix was thoroughly familiar, both as patient and as benefactress. The fact that the testatrix failed to mention any of the persons who argue for intestacy but disposed of her $400,000 estate almost entirely for charitable and religious purposes, supports this conclusion. In this connection the decision of Surrogate Slater in Matter of Mills (121 Misc. 147, supra) is enlightening. At pages 149-150 he said: “ The will of the decedent exhibits an intention to have her property pass to charity, in fact, from a very large estate, all save $19,000, is given for charitable purposes. The general charitable purpose was prominent in her mind. At her death the particular charity was not operating, but the charitable intention could be carried out by other and similar charities. The purpose of the charity could be carried out — the donation was a valid gift to public charity in its broad sense, to be administered by the court — whether the gift is a trust, or a donation. Matter of Allen, supra, 128 [111 Misc. 93, affd. 202 App. Div. 810, affd. 236 N. Y. 503]; Gladding v. St. Matthew’s Church, supra [25 R. I. 628]; Teele v. Bishop of Derry, 168 Mass. 341. The gift in the instant case was to the objects of the corporation, not to itself. Bliss v. American Bible Society, 2 Allen, [Mass.] 334; Matter of Deming, 112 N. Y. Supp. 170. The gift was marked as charitable.
Proceed accordingly.