In re the Judicial Settlement of the Account of Philbrick

134 N.Y.S. 235 | N.Y. Sur. Ct. | 1911

Cohalan, S.

Testatrix died on the 1st day of June, 1909, leaving a last will and testament dated March 21, 1908, and a codicil thereto dated December 16, 1908. Upon the judicial settlement of the accounts of the proceedings of the executors the question of the validity of the following paragraph of the codicil is raised: “ I give, devise and bequeath the amount which has been bequeathed to me by the last will and testament of my son to my daughter, it being understood between us that she is to spend said amount in charity, both in the Kingdom of Italy and in the City of New York, U. S. A.”

The bequest evidently was intended by the testatrix not for the personal benefit of the legatee, but to be held by her in trust and used for the general purpose specified by her. Gross v. Moore, 68 Hun, 412, 414; affd., 141 N. Y. 559, upon opinion below; Matter of Keenan, 107 App. Div. 234. That purpose may comprehend a variety or infinitude of objects and purposes as contradistinguished from beneficiaries, any one of which may or may not have been contemplated by the testatrix, making utterly improbable the ascertainment and execution of her purposes and intentions by any court owing to their great indefiniteness and uncertainty.

The bequest must, therefore, be declared void, and this not-

withstanding the greatly enlarged powers to make gifts for charitable and benevolent objects given by chapter 701, Laws of 1893, and chapter 291, Laws of 1901, which, so far as they affect personal property, are now embodied in section 12, article 2, chapter 41 of the Consolidated Laws. Matter of Scott, 31 Misc. Rep. 86, 87; Manley v. Fiske, 66 id. 390, and 139 App. Div. 667; Matter of Shattuck, 193 N. Y. 446. The amount ineffectually attempted to be bequeathed passes to the residuary legatees under the will of decedent.

Decreed accordingly.