218 A.D. 392 | N.Y. App. Div. | 1926
The question on this appeal is the validity of the 13th or residuary clause of the will of' Estelle B. Crawford, deceased, who died three days after the execution of the will on November 4, 1925. Said residuary clause creates a trust for the establishment of a public library in the village of Monticello, N. Y. Such a trust is authorized by article 7 of the General Municipal Law (as amd. by Laws of 1910, chap. 163). The will was carefully and scientifically drawn, evidently with the statutory requirements of said article 7 in mind. There is no vagueness or indefiniteness in the testamentary provisions and it is unquestioned that on the face of the will a lawful trust was created for the purpose intended by the testatrix. But it is claimed that her death three days after the execution of the will invalidated the trust provision because of section 146 of the said article 7 of the General Municipal Law which is as follows: “ This article shall not be construed or held to authorize any devise or bequest whatever, unless the will was executed at least two months before the decease of the testator or testatrix, nor of more than one-half of the estate of the testator or testatrix over and above the payment of debts, liabilities and expenses, in case he or she shall leave a husband, wife, child, or parent him or her surviving.” The deceased left no husband, child or parent her surviving. The respondent contends that the concluding words of said section 146, “ in case he or she shall leave a husband, wife, child, or parent him or her surviving,” qualify the entire section and that the two months’ clause
The respondent contends that the repeal of sections 18, 19 and 20 of the Decedent Estate Law by chapter 857 of the Laws of 1911 indicates a repeal by implication of section 146 of the General Municipal Law. Said sections 18, 19 and 20 place limitations on devises and bequests to institutions or corporations formed under particular statutes therein specified. If the Legislature had intended to repeal said section 146, it would have mentioned that statute as well as the others. The fact that it was not mentioned, although all the others were mentioned, would seem to indicate that there was no intention to repeal the former.
The decree should be modified by striking therefrom the provision adjudging that the 13th clause of the will is valid, and inserting therein a provision that said clause is invalid because of the death of the decedent within two months after the execution of the will, with costs to both parties payable out of the estate.
Decree modified in accordance with opinion and as so modified unanimously affirmed, with costs to both parties payable out of the estate.