230 A.D. 290 | N.Y. App. Div. | 1930
Ida R. Opdyke, the testatrix, died in the city of Jamestown on the 12th day of May, 1927. Her son, Wilbur F. Opdyke, was her sole heir and next of ldn. She left a will which the executor named in it offered for probate. Brobate of the instrument was contested by her son. After a jury trial, in which the verdict on all points was against the contestant, an agreement was entered into between Wilbur F. Opdyke, the contestant, and the Southern Baptist Convention, a religious corporation incorporated under the laws of Georgia, the Title Guaranty and Trust Company, as trustee, the principal legatees in the will, and the special guardian for infant beneficiaries of the trust, and the executor, by the terms of which, in consideration of the payment to Wilbur F. Opdyke of $22,670 by the executor (to which payment the legatees and beneficiaries named consented), Wilbur F. Opdyke withdrew his objections to the probate and consented thereto, and further stipulated “ that all of the legatees mentioned in said will
The will of Ida R. Opdyke disposed of her estate as follows (disregarding certain small specific bequests): $300 was given to the Lakeview Cemetery Association of Jamestown, in trust, to use the income for the decoration and ornamentation of her cemetery lot. By paragraph “ Eighth,” “All the rest, residue and remainder of [her] my property of every sort and description ” was directed to “ be divided into two equal parts,” and out of one of the one-halves of her estate she bequeathed $5,000 to the First Baptist Church of Jamestown, in trust, to use the income for its corporate purposes. Then follows paragraph “ Ninth:” “ The balance of this one-half of my estate I give, devise and bequeath to the Southern Baptist Convention, to be used for the purpose of providing education for the mountain people under jurisdiction of said Convention.” Paragraph “Tenth” begins: “ Out of the other one-half of my estate, I give, devise and bequeath the sum of $20,000 to the Title Guaranty and Trust Company of New York City, in trust, nevertheless, * * *.” Then follows a full description of the trust, in substance, to hold and invest the principal and receive and pay the income to the testatrix’s son Wilbur F. Opdyke during his lifetime, with remainder to his son, George Francis Opdyke. By paragraph “ Eleventh ” a second trust of the same amount carved out of the second one-half of her estate was given to the same trustee with income payable to Wilbur F. Opdyke for life and remainder to
Section 17 of the Decedent Estate Law, as it existed at the time of decedent’s death, read as follows: “ No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall, be valid to the extent of one-half, and no more.” (As amd. by Laws of 1923, chap. 301.) The Southern Baptist Convention contends that its legacy does not offend such provision; that the religious corporations were given by the will less than one-half of the estate, and, consequently, that the will was in all respects valid, and that the religious corporations were entitled to the proportionate share in the increase after testatrix’s death. It relies largely upon the opinion in Hollis v. Drew Theological Seminary (95 N. Y. 166), where Judge
The provisions of section 17 of the Decedent Estate Law may be invoked not only by the relatives named in the statute but by any person receiving benefit therefrom. (Decker v. Vreeland, 220 N. Y. 326; Robb v. Washington & Jefferson College, 185 id. 485.) Wilbur F. Opdyke by his stipulation as to the validity of the bequests in the will, and the power of the legatees to receive such bequests, did not, in our opinion, waive the right to invoke the application of the statutory rule. The bequest as made was, at least in one sense, fully valid. The testatrix gave one-half of her estate to religious corporations and this she had full power to do. The only question involved is as to the interpretation of this gift in view of the statutory limitation referred to. In another sense, perhaps, it may be said that the statutory clause created an invalidity as to increases. If there was ambiguity, it has been resolved favorably to the testatrix’s son upon evidence taken before the surrogate.
The question remains as to the disposition to be made of the increase upon the half of the estate which is given to the religious corporations. Reading the will as a whole, it is clear that the fundamental purpose of the testatrix was to divide her estate into two equal parts, and to give one of these two equal parts to charity, and the other equal part to a trustee for the benefit of her immediate family. There was no general residuary clause. There was a
In our opinion, the increase upon the half of the estate bequeathed to chardy passes, subject to the expenses of administration, to Wilbur F. Opdyke as sole heir and next of kin of the testatrix.
The bequest of $300 to the Lakeview Cemetery, in trust, is not a bequest to any of the corporations or purposes mentioned in section 17 of the Decedent Estate Law, and should not be included in computing the total amount of legacies to corporations or purposes mentioned in that section.
The appellant convention also urges that the surrogate exceeded his authority in determining to what funds and legacies the payment to Wilbur F. Qpdyke’s attorneys’ fees mentioned above should be charged in the settlement of the estate. It bases this claim upon the orders which approved the settlement with Wilbur F. Opdyke, fixed the amounts allowed to the attorneys and directed the executor to make the payments to Wilbur F. Opdyke and the
We agree with the learned surrogate that the Southern Baptist Convention must pay the fees of its attorneys, but we are of the opinion that the sum of $22,670 paid to Wilbur F. Opdyke for the settlement of the litigation should be divided between the convention and the trust funds, and paid by the convention and the trustee, respectively, in the ratio of the amount of principal received by the convention to the amount of principal, including increase of principal, received by the trustee.
The decree should be modified in accordance with this opinion, and as modified affirmed, with one bill of costs to each party appearing by separate attorneys and to the special guardian of the infants, paya’ble out of the estate.
All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Decree modified on the law in accordance with the opinion and as modified affirmed, with a bill of costs to each party appearing upon this appeal by separate attorneys and fifing brief and to the special guardian, payable out of the estate.