137 Misc. 730 | N.Y. Sur. Ct. | 1930
This is an application by the United States Trust Company of New York, the sole surviving trustee, to vacate that part of the decree of this court made November 6, 1929, which directed the payment to the Home for the Aged of the Little Sisters of the Poor of certain benefits under the will. The specific amounts adjudged to be paid were a pecuniary legacy in the sum of 150,000 and an interest in the residue. After this decree was entered and on April 11, 1930, the trustees of the home, to whom these amounts were directed to be paid, by formal resolution, renounced and declined the legacy and the other benefits under the will. It appears that this renunciation was due to the rules of the order which forbid the receipt of funds to which a specific condition is attached, or which are to be retained in a permanent trust with directions to use the income only for a limited purpose. The provisions of the will of Mr. Meyer and the conditions attached to the gift by him were deemed by the trustees of the charity to be within these restrictions.
It further appears, by reason of the magnitude of the gifts to charity contained in the will, that its terms were in violation of section 17 of the Decedent Estate Law (as amd. by Laws of 1929, chap. 229). That section provides: “ No person having a husband, wife, child or descendent or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of bis or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of" one-half, and no more.”
The renunciation of the benefits by the Home for the Aged has, however, completely changed the situation in the estate and renders necessary the determination of certain preliminary questions of construction which have arisen and the final question as to whom the amounts renounced shall be paid.
(1) As to the question of the interpretation of the will caused by the relinquishment by the Home for the Aged, it is beyond dispute that the pecuniary legacy to it lapsed and became a part of the residuary estate. The residue was originally created by the terms of the will into a trust, with income to be paid to the widow of the testator. After her death, the testator directed that two trust funds be set up for the fife of individual beneficiaries, $382,000 was given to charities (of which the pecuniary bequest to the Home for the Aged was one), and the residue was to be divided into three equal shares, of which one-third was directed to be paid to the Home for the Aged; a second one-third to a children’s hospital, and the remaining part disposed of by a gift of one-sixth to each of two educational institutions. Under the rule which deals with the vesting of a “ residue of a residue,” the legal effect of the renunciation by the Home for the Aged is to devolve its lapsed share, by intestacy, on the next of kin of the testator. (Wright v. Wright, 225 N. Y. 329, at p. 340.) To them likewise goes the proportionate share of the Home for the Aged in the lapsed pecuniary legacy which fell into the residue.
(2) With these legal principles settled, the distribution of the estate and the correction of the prior decree become a simple question of the mathematical recomputation of the amounts which may be legally paid to the remaining residuary charities. The effect of the renunciation or disclaimer of the Home for the Aged is to remove that institution, from the very death of the testator, as a beneficiary under the will. Its interests never became effective for any purpose. The relinquishment was not a conveyance, and by its refusal the bequests to the Home for the Aged became null. (Burritt v. Silliman, 13 N. Y. 93; Matter of Merritt, 155 App. Div. 228; Matter of Wolfe, 89 id. 349; affd., 179 N. Y. 599; Matter of Clarkson, 137 Misc. 741.) The bequest never took effect and the title to it never vested. (Albany Hospital v. Albany Guardian Society, etc., 214 N. Y. 435.) In the latter case the effect of a disclaimer or a relinquishment by a legatee was thoroughly
(3) The remaining question involves the right of the estate of Lizzie 0. Meyer, the widow of the deceased, to participate in the distribution of the intestate property. The next of kin of the testator contend that under the terms of the will the widow is confined to the specific benefits created for her and was not entitled to share in the fund which passed by operation of law. This question I hold to be res adjudicata by virtue of two prior decrees in this estate. The next of kin themselves were the petitioners in the construction proceeding and they procured a decree dated August 15, 1928, which specifically adjudged that the persons entitled to participate in the intestate fund, in accordance with the Statute of Descent and Distribution, were (1) themselves as the heirs and next of kin of the testator, and (2) “ Lizzie O. Meyer, widow of said decedent.” My decision in that proceeding (N. Y. L. J. July 11, 1928) recites that the construction proposed by the next of kin was consented to by all the parties. An examination of the papers in the construction proceeding clearly establishes that there was a complete acquiescence by the next of kin as petitioners in the decree ultimately made. No appeal was taken and the adjudication must be deemed to be conclusive. It should also be noted that there was further acquiescence in the same method of distribution in the subsequent decree on accounting made on November 6, 1929. While it is thus immaterial here because of this conclusion just discussed, I would hold, if the matter were before me anew, that the terms of the will did not exclude the widow or her estate from receiving her intestate share of the property.