94 N.Y.S. 1099 | N.Y. App. Div. | 1905
This appeal calls for the construction of the 10th and 17th paragraphs o£ the will of Owen Nolan, deceased. Those paragraphs read as follows:
“ Tenth. I give and bequeath to my friend Rev. James S. Duffy, the sum of Five thousand ($5,000.00) dollars, to be expended by him, as I have instructed him during my lifetime. * * *
“Seventeenth. I give and bequeath to my friend Rev. James S. Duffy, for his personal use the sum of One thousand ($1,000.00) dollars.”
The learned surrogate has held that the 10th paragraph is invalid because, while the bequest partakes of the general nature of a trust, the necessary requirements of a trust are not stated. He has also declined to sustain it as an individual bequest because the 17th clause, giving the same legatee $1,000 “ for his personal use,” indicates that the bequest of $5,000 in the 10th paragraph could not have been intended to go to the appellant individually. The case of Gross v Moore (68 Hun, 412) is cited in support of these conclusions.
That case is distinguishable, I .think, in two essential particulars. The gift there under consideration was not to .any legatee or devisee by name, but to the executor of the testator, and concluded with the words, “to be distributed by him, according to instructions given to him by me.” This direction amounted to a plain negation of any idea that the executor was to retain for himself the substance of the gift. A distribution was wholly inconsistent with a retention of the property by the executor. No such manifest inconsistency is presented by the language of the 10th paragraph of the will in the
The substance of their argument on this subject is well summed up by the following extract from their ¡brief.: “ The two provisions may well have been in effect as follows: ‘ I give the first gift accompanied by instructions,, which are purely precatory, .because I would like to have it devoted to a certain purpose, but the gift is not conditioned upon the fulfilment of my request. In the second gift I describe it as for the legatee’s personal use because it is not incumbered even by my wish or desire.’ ” The difficulty which I find in assenting to this construction arises out of the force and effect which it seems to me must he given to the declaration accompanying the bequest of $1,-.000, which expressly provides that it is designed for the personal use of the legatee. Would it be either natural or appropriate for the testator .to insert such ;a direction if he had intended that the previous bequest of $5,00.0 should .under any circumstances be .applied to the personal use .of the same individual ? I hardly think .so. Although the intent of .the testator is by no means perfectly clear, and I -appreciate that different minds might fairly reach different -conclusions upon this question, I am impressed with -the idea that the testator intended that the beneficial enjpymeñt of the larger -bequest should go to some one or more persons .other than the appellant, or be devoted to some other object than his personal use,
For these reasons, but not without serious doubt, I advise an affirmance of the decree appealed from.
Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.
Decree of the Surrogate’s Court of Kings county,, in so far as appealed from, affirmed, with costs.