35 N.Y.2d 381 | NY | 1974
Lead Opinion
We are called upon to construe the will of Godfrey Nurse, made in 1961. Our attention is focused upon Article “ TENTH ” pouring over his residuary estate to an inter vivos charitable trust, created in 1956. Before the testator’s death in 1968, that trust was the subject of a 1967 judgment of the Supreme Court. The issue is whether by that judgment the trust was terminated or merely amended. If terminated, the pour over provision lapses and the residuary estate passes by intestacy to the statutory distributees, including the six appellants, who are testator’s half sisters and issue of predeceased half sisters and half brothers, in the West Indies. If amended, there is compliance with the controlling statute, EPTL 3-3.7, and the residuary passes to the Godfrey Nurse Fund, a charitable entity held and administered by the City of New York.
In pertinent part, EPTL 3-3.7 provides:
“ (a) A testator may by will dispose of or appoint all or any part of his estate to a trustee of a trust, the terms of which are evidenced by a written instrument executed by the testator, # * * provided that such trust instrument is executed and acknowledged by the parties thereto in the manner required by the laws of this state for the recording of á convey
“(b) The testamentary disposition or appointment is valid, even though:
“ (1) The trust instrument is amendable or revocable, or both, provided, however, that the disposition or appointment shall be given effect in accordance with the terms of the trust instrument, including an amendment thereto, as they appear in writing on the date of the testator’s death * * * if the instrument evidencing such amendment is executed and acknowledged in the manner herein provided for executing and acknowledging the instrument which it amends. V-A Mg TV w TV
“ (e) A revocation or termination of the trust before the death of the testator shall cause the disposition or appointment to fail, unless the testator has made an alternative disposition.”
For reasons which follow, we have concluded that the contested article of testator’s will effectively pours over his residuary estate to the Godfrey Nurse Fund, and agree with the Surrogate and the majority in the Appellate Division that the Supreme Court judgment constitutes an amendment to the inter vivos charitable trust originally created in 1956, within the meaning of EPTL 3-3.7 (subd. [b], par. [1]).
The Original Trust Instrument
Godfrey Nurse was a prominent physician in Harlem. On May 23, 1956 he created an irrevocable inter vivos charitable trust named the Godfrey Nurse Fund for the purpose of furnishing and appropriating “ funds necessary for the operation of the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital in the City of New York or its successor or successors.” The corpus of $105,000 was transferred to Thomas B. Dyett and City Bank Farmers Trust Company as trustees with instructions to pay the income and up to $10,000 per a.rmnm of the principal to Harlem Hospital to be used for building, equipping and operating the laboratory. The entire principal was to be paid over to Harlem Hospital at the end of 10 years. The trust instrument provided for termination “ [i]f at any time the said Laboratory shall cease to function as such ” in
The Will
On June 16, 1961, Dr. Nurse executed his will bequeathing $33,000 to friends, $5,000 to the Harlem branch of the YMOA, $25,000 to the University College of the West Indies, $50,000 to his sister and $25,000 to her son, his nephew. The controversy grows out of the will’s tenth article which reads as follows: ‘ ‘ All the rest, residue and remainder of my property, of whatsoever kind, nature or description and wheresoever the same may be situate, of which I may die seized or possessed, or to which I may be entitled at the time of my death, I give, devise, and bequeath unto City Bank Farmers Trust (Now First National City Trust Company), and Thomas B. Dyett, as Trustees of a certain inter vivos charitable trust made by me as settlor and dated 23rd day of May, 1956, and known as the Godfrey Nurse Fund for the benefit of the Godfrey Nurse Laboratory for Experimental Surgery At Harlem Hospital in the City of New York with direction to the Trustees to apply and distribute the said funds in accordance with the provisions of the said trust.”
The Supreme Court Proceeding and Judgment
For reasons which do not appear, the specific purpose of the trust — the creation of the Godfrey Nurse Laboratory — was never realized. Although some of the interest from the fund was applied with Dr. Nurse’s approval to surgical projects, lectures, scientific travel and scientific activities, by November of 1966 there remained over $117,000 of principal and accumulated income in the hands of the trustees. At that time the trustees petitioned the Supreme Court for a judicial settlement of their account and for instructions “ as to the proper disposi-. tion of the trust funds to the end that the judgment to be entered herein will direct the administration and expenditure of the trust funds in a manner which will most effectually accomplish the general purpose of the trust.”
Although by terms of the trust instrument, the entire principal was to be paid to Harlem Hospital at the end of 10 years, this payment was never made. Bather, on March 31, 1967, the
The Supreme Court approved and incorporated the terms of the stipulation into its judgment, entered on May 29, 1967. Godfrey Nurse died 20 months later, on December 22, 1968, without making another will or changing by codicil the bequest of his residuary estate to the inter vivos trust. Thereafter, the will was admitted to probate and Dr. Nurse’s executor commenced the instant proceeding for construction of its tenth article, the residuary clause. The residuary estate amounts to over $250,000. As stated, the issue is whether the Supreme Court judgment, instructing the trustees as to the disposition of the trust fund, constitutes an amendment of the inter vivos trust originally established in 1956, so as to comply with EPTL 3-3.7, or whether it terminated the trust and created some other wholly new entity.
It is apparent from the divided court in the Appellate Division and the dissent within our own court that the contested pour over provision of the will is susceptible of more than one
Because of the ambiguity surrounding the testator’s intent, we have been guided by certain general principles and policies of the law, embodied in “ presumptions ” and “ rules of construction ”, in reaching our decision that the pour over provision should be given effect in this case. We note particularly the presumption against intestacy (Matter of Hayes, 263 N. Y. 219, 225; Matter of Dammann, 12 N Y 2d 500, 504) particularly strong as to residuary bequests (Matter of Fabbri, 2 N Y 2d 236, 243) and the long-standing principle of construction that “ where a testator has apparently sought to leave money for a charitable purpose, a liberal construction is to be given to the terms of the will in order to uphold it and- validate the bequest.” (Matter of Potter, 307 N. Y. 504, 517.) These principles, founded in experience and policy, guide our inquiry.
We focus upon the nature and result of the Supreme Court proceeding and are not persuaded by appellants’ contention that the trust was terminated either by its own terms or by the judicial decree. We note that where a lapse of the testator’s residuary bequest would result, termination must be convincingly shown. (Of. 4 Scott, Trusts [3d ed.], 401.2; Bogert, Trusts and Trustees [2d ed.], § 420.) It is clear that the trust’s provision for automatic termination if the laboratory ceased to function was never triggered. The other event which arguably might have ended the trust by its terms — payment of the entire principal to Harlem Hospital at- the end of 10 years — never occurred. Moreover, the judgment incorporating the stipulation makes no mention of termination. The trust was in existence at the time of the stipulation and, upon the Supreme
We agree with the Surrogate that the judgment incorporating the stipulation was an application of the doctrine of cy pres to the inter vivos trust. The original trust agreement provided that at the end of 10 years “ the Trustees shall pay over to [Harlem] Hospital the entire principal of the trust fund then held by them hereunder.” Harlem Hospital would then, as we read the original trust agreement, be required to apply that corpus to the Godfrey Nurse Laboratory contemplated under the trust agreement. The instrument, however, did not provide for a reverter or alternative disposition of the corpus if the laboratory never came into existence. Thus, though the laboratory was unrealized, by the terms of the trust the corpus was nonetheless to pass to Harlem Hospital at the end of 10 years. Since that corpus obviously could not be applied to the laboratory, it could be expended for purposes other than those set forth in the trust agreement. It was to avoid this result that the trustees instituted the Supreme Court proceeding which ended in the judgment amending the trust by approving the application of the fund to its next best use.
In that proceeding, the trustees’ petition, framing the issue before the court, alleged that “ A question may exist as to whether circumstances have so changed since the execution of the trust agreement that it is impracticable to carry out the intention of the testator by a literal compliance with the terms thereof ”. Authority for the proceeding is found in the parallel language of the then-effective subdivision 2 of section 12 of the Personal Property Law (now, with minor changes, EPTL 8-1.1, subd. [c]) which, in relevant part, provided: “ whenever it shall appear to the court that circumstances have so changed since the execution of an instrument containing a gift, grant or bequest to religious, educational, charitable or benevolent uses as to render impracticable or impossible a literal compliance with the terms of such instrument, the court may, upon the application of the trustee or of the person or corporation having the custody of the property, and upon such notice as the court
The particular purpose of the trust was altered but the fund was consistently applied to advance the growth of surgery at Harlem Hospital and the position of the Negro in the field of surgery — ■ aims which may be regarded as Dr. Nurse’s “ general charitable intent ” sufficient to warrant the Supreme Court’s exercise of discretion in applying subdivision 2 of section 12 of the Personal Property Law to the trust. (Cf. City Bank Farmers Trust Co. v. Arnold, 283 N. Y. 184, 194; Sherman v. Richmond Hose Co., 230 N. Y. 462, 473.) By its judgment, the Supreme Court, in effect, concluded that the settlor’s intent was not fixed so profoundly on the specific purpose named that the trust was incapable of modification to accomplish similar purposes and to avoid devolution of the entire corpus for the unrestricted use of Harlem Hospital. The settlor was present to voice his intention regarding the next best use for the fund (see Bogert, Trusts and Trustees [2d ed.], § 442) and he consented to the amendment along with all other parties concerned in the original trust agreement. Finally, the alteration of the specific trust purpose received the required imprimatur of the Supreme Court when the stipulation was reduced to judgment. (Personal Property Law, § 12; EPTL 8-1.1, subd. [c] ; Bogert, Trusts and Trustees [2d ed.], § 383; Scott, Trusts [3d ed.], § 367.2; Restatement, Trusts, 2d, § 399.) Though this judgment is not directly before us for review, by our decision we are effectuating it. This, of course, implies our own judgment that the Supreme Court did not abuse its discretion in approving the stipulation and thereby in satisfying itself, as it was required to do, that the realization of the testator’s initial specific plan for the fund — the laboratory — cannot be regarded as a necessary condition of the trust or an “ express command ” sufficient to foreclose application of the doctrine of cy pres to
By its judgment, the Supreme Court permitted a deviation from the terms of the trust. The unrestricted gift over to Harlem Hospital at the end of 10 years was prevented. This was the event which could have terminated the trust hy its terms but which the settlor and trustees sought successfully to avoid. The Supreme Court satisfied itself that a modification of the specific trust purpose would more effectually accomplish the purpose of the trust and the settlor’s charitable intent. AH we hold today is that where a trust is so modified during the settlor’s lifetime, by application of the ancient doctrine of cy pres, the judgment permitting the modification constitutes an “ amendment ” within the meaning of EPTL 3-3.7 (subd. [b], par. [1]) which preserves rather than terminates the original trust.
Because this type of trust amendment is accomplished by court order, as it must be, there is compliance with the requirements of EPTL 3-3.7 (subd. [a] and subd. [b], par. [1]) that the amendment be “ executed and acknowledged by the parties thereto in the manner required by the laws of this state for the recording of a conveyance of real property ”. What is required is that the instrument of amendment be recordable. Section 297-b of the Real Property Law provides that the certified copy of “ a judgment, final order or decree * * * rendered by a New York state court of record * * * affecting the title to or possession, use or enjoyment of real property * * * may be recorded * * * in the same manner as a conveyance duly acknowledged or proved and certified so as to entitle it to be recorded ”. The amendment meets the requirements of the recording laws of this State. The EPTL provides that these requirements be met, not so that the instrument of amendment can actually be recorded, but in order to safeguard against fraud and overreaching. The Legislature in section 297-b of the Real Property Law has deemed a judgment to meet the otherwise specified requirements of execution and acknowledgement and has thereby regarded a judgment, of itself, as sufficient
In regarding the Supreme Court’s judgment incorporating the stipulation of the interested parties as an amendment of the original inter vivos trust, we have liberally construed the provisions of EPTL 3-3.7, as applied to this particular charitable trust. The statute does not expressly circumscribe the type of allowable “ amendments ” to an inter vivos trust instrument which is identified in a testamentary pour over provision. (See Report No. 6.IB, Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, N. Y. Legis. Doc., 1963, No. 19, pp. 286, 307, 313.) This is a task more properly left to the judiciary. It is still our task
Nonetheless, in determining the nature and extent of allowable amendments to a particular inter vivos trust, our inquiry remains ultimately cast in the framework of the policies underlying that same Statute of Wills — the avoidance of fraud, chicahery, mistake (Matter of Rausch, 258 N. Y. 327, 333) or the possibility of foisting upon the testator a document which fails to declare his purpose (Matter of Fowles, 222 N. Y. 222, 233). “ Some reference to matters extrinsic is inevitable.
Accordingly, we would affirm the order of the Appellate Division.
. Pursuant to EPTL 8-1.1 (subd. [£]) (formerly, Personal Property Law, § 12, subd. 3), the Attorney-General represents the beneficiaries and acts as the protector and enforcer of charitable trusts.
. The City of New York is the owner of Harlem Hospital.
. By its sanction of pour over provisions meeting certain requirements, the statute obviates the necessity of resort to the overlapping doctrines of “ incorporation by reference ” and “ facts of independent significance ” in explaining the reasons for our decision. (See Commission Report 6.1B, p. 368; see, generally, McClanahan, Bequests to an Existing Trust — Problems and Suggested Remedies, 47 Cal. L. Rev. 267; Palmer, Testamentary Disposition to the Trustee of an Inter Vivos Trust, 50 Mich. L. Rev. 33; Note, 34 N. Y. U. L. Rev. 1106; Ann., 12 ALR 3d 56.)
Dissenting Opinion
(dissenting). In a will construction proceeding, testator’s statutory distributees appeal. The Surrogate’s decree, affirmed by a divided Appellate Division, accepted a “ Godfrey Nurse Fund ”, reconstituted in 1967, as the designated residuary legatee under testator’s will.
The issue is whether the Godfrey Nurse Fund established in his lifetime in 1956 by the testator expired in 1966, or was only restructured and its purposes recast by a judgment based on a stipulation in the final accounting of the “ expired ” trust. Put another way, the question is whether the 1967 judgment disposed merely of the remainder interest in an expired and frustrated trust or whether it continued unbroken the life of the 1956 trust so that it might qualify as the named residuary legatee in the 1961 will.
I dissent and would reverse the order of the Appellate Division, and would hold that the 1967 rearranged “ trust ” did not qualify as the residuary legatee.
The trust created in 1956 was intended to establish and operate the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital in the City of New York. It ‘ ‘ expired ’ ’
Dr. Godfrey Nurse was a wealthy and distinguished physician in New York City’s Harlem. Desiring to benefit the Negro physician and the community where he had made his name and fortune, he established, on May 23, 1956, an irrevocable inter vivos trust known as the 11 Dr. Godfrey Nurse Fund The sole purpose of the trust was “ to furnish and appropriate funds necessary for the operation of the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital ”. The trustees were to pay to the hospital, in their discretion, an annual sum up to $10,000 out of income, and, if necessary, out of principal, for the establishment and operation of the laboratory. At the end of 10 years, or sooner if the laboratory ceased to'function, the principal of the trust, as noted earlier, was to be paid over to the hospital for its general purposes. The trustees were Thomas B. Dyett and the then City Bank Farmers Trust Company.
In his last will dated June 16, 1961, Dr. Nurse bequeathed the residuary of his estate to the trustees of the inter vivos trust known as “ the Godfrey Nurse Fund ” for the benefit of the Godfrey Nurse Laboratory for Experimental Surgery. Notably, in naming the fund, its specific purpose was spelled out by the will so that there can be no mistake which fund was meant.
The purposes of the inter vivos trust were never effected. As Dr. Nurse wrote on May 4,1966 to Dr. Yerby, the then City Commissioner of Hospitals, he had wished that the laboratory in experimental surgery be set up under the aegis of his friend and colleague, Dr. Aubre de L. Maynard, the Director of
A petition to settle and conclude the trust was filed by the trustees in Supreme Court on November 1, 1966. The petition recited that the trust had terminated. During the proceeding a stipulation by the attorneys for the parties, dated March 31, 1967, agreeing to the disposition of the fund principal, was reached, with Dr. Nurse’s approval. By the stipulation, the fund principal was to be paid to the City of New York, to be held and administered by it as a fund also to be known as “ The Godfrey Nurse Fund ”. Its terms, generally for the benefit of Harlem Hospital, included establishment of lectures, research and travel grants, and a fellowship, all named after the benefactor. The directors, with power only to pass on applications for grants, were to be Dr. Maynard, two other physicians, and the Commissioner of Hospitals. The stipulation was embodied in the Supreme Court judgment entered on May 29, 1967.
(Assuming, dubiously, that posttestamentary evidence of intention is admissible, at about this time, according to the late Mr. Dyett, Dr. Nurse asked him to prepare a codicil to his will leaving the residuary of his estate to the University College of The West Indies, Kingston, Jamaica. The codicil was prepared and delivered, but never executed because Dr.
Mr. Dyett, as executor under the will, brought the present proceeding to construe the will. Despondent distributees, who are various next-of-kin, contend that since the fund, for which Dr. Nurse intended the residuary, no longer existed, the residuary -should pass to the statutory distributees by intestacy. The Surrogate properly found no general charitable intent by which to invoke the cy pres doctrine. In support of his holding the Surrogate quoted: “ Where it clearly appears that the testator intended that the property should be applied only to the particular purpose which failed, or for the -benefit of a particular association or corporation which was dissolved, it has been held that the doctrine of cy pres is not applicable and that the property reverts to the settlor or his estate.” (4 Scott, Trusts [3d ed.j, § 399.3.) But he nevertheless found “inter vivos cy pres ” in the stipulation of March 31, 1967, which he construed to amend the original trust declaration rather than to create a new fund. The Godfrey Nurse Fund, was still extant, he thus held, and therefore the beneficiary under the residuary clause of the 1961 will. The Appellate Division affirmed over a strong dissent.
A testator may by will appoint all or part of his estate to a trustee of a pre-existing trust, the terms of which are evidenced by a written, executed instrument, incorporated by reference into, the will (EPTL 3-3.7). There are, however, among others, two prerequisites for such a testamentary disposition. First, the trust instrument must have been executed and acknowledged by the parties, in accordance "with the requirements for the conveyance of real property, prior to or contemporaneously with the execution of the will (EPTL 3-3.7, subd. [a]). And second, the trust must not have been revoked or terminated before the testator’s death (EPTL 3-3.7, subd. [e]).
The Godfrey Nurse Fund “ for the benefit of the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital,” the trust thus designated and limited in. purpose, is the residuary beneficiary of Dr. Nurse’s will. It terminated, according to the instrument of its creation, in May, 1966, 10
The 1967 device was perhaps not even a trust but most likely only a conditional gift (see, generally, e.g., 7 N. Y. Jur., Charities, §§ 5, 9, 10; see, especially, St. Joseph’s Hosp. v. Bennett, 281 N. Y. 115, 118-123). That the 1967 device was not clearly a trust but perhaps a conditional gift emphasizes that the 1967 occurrence, whatever else it was, was not a continuation of the 1956 trust.
Paramount doctrine in interpreting a will requires following the intention of the testator when he executed it (Matter of Englis, 2 N Y 2d 395, 404; Matter of Hoffman, 201 N. Y. 247, 255). In his 1961 will Dr. Nurse spelled out his residuary beneficiary as “ the Godfrey Nurse Fund for the benefit of the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital in the City of New York ”, Obviously, the identity of name between the 1956 trust and the 1967 fund is of no consequence. The nomenclature served only the purpose of continuing the name of the original but frustrated donor. Without recourse to nontestamentary documents, the will negates the possibility that Dr. Nurse intended, despite his frustration, to leave the residuary to a trust, no longer extant and the primary purpose of which had never been fulfilled and would never be fulfilled.
When the 1956 trust fund had terminated on May 23, 1966, Dr. Nurse having retained no power to modify or revoke the
Although a second fund, also dubbed the Godfrey Nurse Fund, was ultimately set up to receive and hold the remainder of the expired trust, this was a new fund created out of the unrestricted remainder, not an amended version of the limited trust designated in the will by name and there defined by purpose as the residuary legatee. The Supreme Court judgment, born of a stipulation by the attorneys for the parties, established the substitute fund only because of a controversy over the disposition of the remainder of the expired trust. True, Dr. Nurse had acquiesced in the use of the original Godfrey Nurse Fund for purposes other than those specified in the trust instrument. A primary reason, as it emerges from his correspondence in the record, was his high regard for Dr. Maynard. When, however, Dr. Nurse realized that, with the ending of the trust and the impending passing of the remainder to the hospital and the city, neither he nor Dr. Maynard would or could continue to control the use of the trust corpus, he finally sought judicial intervention to redirect its use. It is significant that the expired frustrated trust embraced a substantially smaller sum than the anticipated residuary of the estate.
The trustees ’ petition for a judicial settlement and an accounting was to prevent the devolution of a remainder to the city unrestricted except that it had to be used for the general purposes of the hospital. The judicial proceeding was not necessary, however, to terminate the 1956 trust. The specified duration was 10 years and the trustees ’ petition stated that the trust had terminated on May 23,1966. The court, of course, except in extraordinary circumstances, lacked power to extend the trust (see, generally, Ann., Trust Term — Extension, 46 ALR 2d 907).
The stipulation signed by the attorneys for the parties with Dr. Nurse’s consent nowhere suggests, let alone states, that it was intended to amend the original unamendable trust. More
With this history of the 1956 ‘ ‘ Fund ’ ’ and the radical change in its structure, management, and purpose, it is unacceptable to regard the later fund as a continuation of the first. The only strings of identity are the corpus and the honorific name of the “ Fund ”. This satisfies neither the intention of Dr. Nurse either as settlor or testator, nor does it meet the minimal requirements of the statute which authorizes a “ pour-over ” testamentary disposition into an existing trust.
Moreover, the Surrogate’s reasoning in rejecting the application of the cy pres doctrine to the residuary clause was, as noted earlier, quite correct, because the testator’s will had not evidenced a general charitable intent. It is difficult to see how a more generalized intent was applicable to the inter vivos trust, before or after the 1967 judicial surgery. Before the judicial surgery the inter vivos declaration of trust was as specific in intent as the residuary clause. After the judicial surgery, the new fund’s purpose could not satisfy the specific intent of the residuary clause. In any event, that judicial surgery could not qualify as an amendment to a “ pour-over ” trust because the form of the “ amendment ” did not satisfy thq • statute.
Indeed, the underlying stipulation for the judgment could not qualify as an amendment to a “ pour-over ” trust under EPTL 3-3.7. Paragraph (1) of subdivision (b) of the statute requires that any amendment to a trust must be “ executed and acknowledged in the manner herein provided for executing and acknowledging the instrument which it amends.” Under EPTL 3-3.7 (subd. [a]) the trust instrument must be executed and
Of course, the requirement of EPTL, concerned only with the manner of execution of a trust instrument, is not met by an instrument of record, even a judgment. It is met only by an instrument executed by the settlor in a manner, that is, with the formalities, that a recordable instrument must be executed. The trust instrument need not be “ recordable ”. Indeed, unless real property or a security interest is involved, it will be rare, or never, that a trust instrument or its amendment will be recorded. The statutory reference to a manner of execution is to assure authentic execution and not to produce a recorded or recordable instrument. Hence, the fact that the judgment in the 1967 proceeding is a record instrument, because rendered in a court of record, is just as immaterial as if it were a Us pendens or a pleading which would also be of record. Section 297-b of the Beal Property Law is not concerned with the manner of execution of an instrument and applies only to a judgment affecting title to real property and permits recording in the index of real property records.
The Legislature, in enacting EPTL 3-3.7, was aware of possible abuse in permitting an estate to devolve by nontestamentary documents. If pour over trusts were to be allowed, their unrestricted amendment was deemed vulnerable to fraud and mistake (Beport No. 6.1B, Temporary State Commission on the Modernization, Eevision and Simplification of the Law of Estates, N. Y. Legis. Doc., 1963, No. 19, pp. 286, 313). EPTL 3-3.7 was therefore intended to enforce the recognized requirements for valid incorporation by reference, namely, that the will refer to a then-existing document, describing it so that it
Whichever way one turns, the 1967 stipulation-judgment fails to sustain a continuing amended trust. As an amendment it does not satisfy the requirements for execution mandated by statute. In content it does not supply an amendment to an unamendable trust declaration but sets up a different fund without a trustee and with different purposes. In purpose and intention it was only to placate the frustrated benefactor by placing some limitation on the use of the otherwise largely unrestricted remainder of the inter vivos trust. The stipulation-judgment is a far cry from establishing a pour over trust into which the residuary clause can be twisted to pass the residuary of the estate.
Tested, as it must be, by these standards, the 1967 fund as interpreted by the courts below would be an open-ended, free-floating testamentary document that EPTL 3-3.7 does not and was never intended to allow. As for Dr. Nurse’s intention, the residuary clause is explicit and it is legally perverse to look elsewhere. Moreover, as the dissenters below aptly noted, it is cruel irony indeed that the residuary should pass to an improvised fund whose very existence he had been forced reluctantly to accept by way of compromise, caused only by the absence of a reverter provision in the 1956 inter vivos trust instrument. In short, the manipulation of the trust into the rearranged fund as a continuing legal entity is legally impermissible, and the violation of testator’s intention gross. Even if one knew that he would have consented to such a result, and one knows the contrary, the law of testamentary disposition and the devolution of trusts would forbid it.
The law prefers, it is true, to avoid intestacy; but it absolutely rejects rewriting another’s will after his death and prefers intestacy to the more abhorrent result (Matter of Englis, 2 N Y 2d 395, 401, 405, supra).
Accordingly, I dissent and vote to reverse the order of the Appellate Division and to remand the proceeding to the Surrogate’s Court for distribution of the residuary by intestacy.
Judges Gabbielli, Jones and Wachtleb concur with Judge Babin ; Chief Judge Bbeitel dissents and votes to reverse in a
Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.
