109 Misc. 519 | N.Y. Sur. Ct. | 1919
This is a construction of the will of the above named testator which was reserved for consideration at this time in the decree admitting the will to probate.
The first question presented is as to the validity of the trust attempted to be created by the fourth article of the will, which reads as follows: “ Upon the death of my mother the property of my possessions in trust shall be handed over to Mr. Jose Castellot, so that the funds shall be used for the foundation of a Universal Journal or of any other enterprise which shall have for its purpose the betterment and improvement of the conditions of suffering mankind in general or in particular.”
It appears that article four cannot be held valid as a charitable trust because it does not state the purpose
The next question presented is as to the right of Mrs. Palmer to take the legacies bequeathed to her for the reason that she was a witness to the will. There are, however, three witnesses to this will, and the will was sufficiently proved by the testimony of the two other subscribing witnesses thereto, and the bequest to her is not invalidated by her additional testimony in support of the will. The statute provides that the interest of any beneficiary under a will shall be void when “ such will cannot be proved without the testimony of such witness. ’ ’ But where there are three witnesses to a will and the testimony of two is sufficient to warrant the admission of the will to probate, the legacy to the third witness is unaffected. Matter of Owen, 48 App. Div. 507.
Another question is asked as to whether or not the testator’s mother, Madame Anna Mercedes Tactician, to whom is bequeathed the income of all the testator’s real and personal property after the deduction of the debts, should take her legacy before certain other legacies are paid. I think not. While the testator has, by the second paragraph of the will, which is the first dispositive paragraph, given the income on all the residue of his property to his mother, and while she is the principal beneficiary of his estate, it appears that he intended nevertheless from the language of the subsequent paragraphs of the will that this gift
A decree may be submitted on notice construing the will in accordance with this opinion.
Decreed accordingly.