32 A.D.2d 849 | N.Y. App. Div. | 1969
Appeal from a decree of the Surrogate’s Court of Tioga County, entered January 17, 1969, in a construction proceeding which adjudged that one third of decedent’s residuary estate be paid to Newark Valley Lodge No. 614, F. & A. M. Frederick W. Martin died April 3, 1968 leaving a will in which one third of the residue of his property was devised and bequeathed to the “ Masonic Brotherhood Fund, having a Post Office Address of 71 West 23rd Street, New York, New York, 10001 and if for any reason whatsoever said one-third share of my residuary estate cannot be so devised and bequeathed to said organization, then said one-third share of my residuary estate is to be devised and bequeathed to Newark Valley Lodge No. 614, F. & A. M., having an office at Whig Street, Newark Valley, New York, and I request that said local lodge use said monies for said Masonic Brotherhood Fund.” Appellant concedes that the Masonic Brotherhood Fund is a committee and not a legal entity, and it is well settled that an unincorporated association or group is incompetent to take and hold property by devise and bequest (Matter of Merritt, 280 N. Y. 391, 399; but cf. EPTL 3-1.3, subd. [b]). The prime consideration of all construction proceedings is the intention of the testator as expressed in the will, all canons of interpretation being subordinate to this regard (Matter of Larkin, 9 N Y 2d 88, 91); and the second rule is that this intention must be gleaned, not from a single word or phrase, but from a sympathetic reading of the document as a whole (Matter of Thall, 18 N Y 2d 186, 192; Matter of Fabbri, 2 N Y 2d 236, 239-240; cf. Matter of Potter, 307 N. Y. 504, 517). Furthermore, the most liberal construction will be given to the terms of a will in order to validate a charitable bequest (Matter of Potter, supra; Matter of Durbrow, 245 N. Y. 469, 474; Matter of Aramian, 9 Misc 2d 148, 149; 1 Harris, Estates Practice Guide [3d ed.], p. 88). Although resort might be had to the rulings, where there is a parent organization legally capable of taking and holding property, upholding such gifts as gifts in trust to such parent organization for the benefit of the associations, to the end that the charitable purpose be not frustrated (New