121 N.Y.S. 982 | N.Y. App. Div. | 1910
This is an appeal by Rose Walters, as administratrix, etc., of Wilhelm Gieseler, deceased, from so much of a final decree of the Surrogate’s Court as provides that a certain legacy of $2,000 contained in the will of Albert Gieseler, deceased, is payable to the German Hospital, the residuary legatee named in said will.
There is no dispute as to the facts. By his will, Albert Gieseler, after certain specific legacies, gave his entire estate to his executors in trust tó pay oyer certain slims to certain specified persons. He directed them to retain and invest the sum of $2,000 for the benefit
“ And if at any time daring the period for which the said additional sum of two thousand ($2,000) dollars is so held in trust for my said son, his conduct shall be such as not to meet with the approval of the said trustees, then I hereby authorize and empower them to revoke the trust and gift of such additional sum of two thousand ($2,000) dollars and direct them to pay the same to my brothers Gustav Gieseler and Wilhelm. Gieseler hereinafter named in equal and like shares.” .
Wilhelm Gieseler died soon after attaining the age of twenty-one years. It is con ceded that up to the time of his death he led a good and honorable life, and that the executors of his father’s will never revoked the gift to him. This fact precludes any claim on the part of the brothers of the testator for the gift over to them was expressly conditioned upon a revocation of the gift by the executors. The only question remaining is whether in consequence of the. death of Wilhelm before attaining the age of thirty years, the legacy lapsed and went to the residuary legatee, or whether Wilhelm had such a title to or interest in the corpus of the fund as survived his death and became a part of his estate. The learned surrogate took tlie former view. We incline to the latter. An analysis of tlie will shows that it was the purpose of the testator to set apart and' segregate this sum of. $2,000 from the rest of his estate, and to create1 it a separate fund, as to the disposition of which he gave special instructions. .The fund was to be held primarily for the benefit of Wilhelm who was to receive the income until he arrived at the age of thirty years, and then, if he lived a good and honorable life, the principal was to be paid over
Clarke, McLaughlin, Miller and Dowling, JJ., concurred.
Decree so far as appealed from reversed and proceeding remitted to the surrogate for further action in accordance with opinion, with costs to appellant to be paid out of the estate.