120 Misc. 535 | N.Y. Sur. Ct. | 1923
John B. Donchian died on September 14, 1921. His will was admitted to probate on the 18th day of November, 1921. He left him surviving a widow, two brothers, since deceased, a sister and two groups of nieces and nephews, children of a deceased brother and a deceased sister. The estate approximates $400,000.
In this proceeding for a construction of the will several questions have arisen:
First. The testator by paragraph 2 of his will bequeathed to his wife “ The sum of Five thousand Dollars and all jewelry, automobiles, furniture and other household effects of which I shall die seized and possessed, absolutely and forever.” After making other general bequests he bequeathed the residue to his trustees in trust “ To hold, invest and reinvest the same, collect the income thereof and to pay Eight thousand Dollars of such income, in equal quarter yearly payments to my wife Evelyn S. Donchian, during the term of her natural .life. Whenever the annual revenue derived from my estate is insufficient to yield said sum of Eight thousand Dollars, my said Trustees are hereby authorized and directed to provide the deficiency out of the principal of my said estate.” The first question to be determined is as to the effect of paragraph 6 of the will, which reads as follows: “ Sixth. The
Second. The 7th paragraph of the will reads as follows: “ Seventh. Upon the death of my wife, Evelyn S. Donchian, I hereby give, devise and bequeath the entire principal of my estate, including any accumulated income, unto the ' American Board of Commissioners for Foreign Missions/ incorporated in Massachusetts in 1812, and having a branch office at #105 East 22nd Street, Borough of Manhattan, City of New York, upon condition that the corpus of my said estate be segregated as the ‘ John B. Donchian Foundation Fund ’ and that the income derived therefrom be expended in the City of Diarbekar, Asia Minor, my birthplace, and also in the cities of Mardin and Harpout, Asia Minor for the charitable, educational, religious or eleemosynary purposes of asylums, hospitals, schools and churches in said cities.” By the widow’s election her life estate falls in and the disposition as to the excess income over $8,000 per year likewise fails. The direction for the accumulation of income in this paragraph is void. The remainder is accelerated, and should be paid to the American Board of Commissioners for Foreign Missions, the remainderman of the trust, subject to the conditions hereafter laid down. Matter of Silsby, 229 N. Y. 396, 404; Brinkerhoff v. Seabury, 137 App. Div. 916; Kalish v. Kalish, 166 N. Y. 368, 375; Matter of Kohler, 231 id. 353, 376.
Third. The most important question to be determined is the contention of the widow and several of the next of kin that the gift of the residue exceeding $300,000 to the American Board of Commissioners for Foreign Missions (a) is wholly void for indefiniteness and impossibility of compliance with the conditions attached to it by the testator; or (b) is partially void because it contravenes the provisions of section 17 of the Decedent Estate Law, since the decedent, leaving a widow, has devised or bequeathed to a benevolent, charitable, religious or missionary corporation more than one-half of his estate. It is claimed that this devise or bequest is valid to the extent of one-half of the estate, after the deduction
Fourth. The bequest to the American board is invalid under section 17 of the Decedent Estate Law in so far as it exceeds one-half of the estate, after the deduction of debts. Ascertainment of this amount must await the final accounting.
Fifth. The power of sale contained in paragraph 8 of the will is not affected by the widow’s election, and the executors have the necessary power to convert and distribute the estate in cash, as directed by the will.
Sixth. The American board must fully comply with the conditions contained in paragraph 9 wdth regard to the investment and retention of the fund in the United States. In view of the fact
Submit decree construing will accordingly.
Decreed accordingly.