7 N.Y.S. 836 | N.Y. Sup. Ct. | 1889
The appellants failed in their application because, in the opinion of the learned surrogate, they were not persons interested in the estate or fund in the hands of the executors, within the meaning of the Code; and the only question presented by this appeal is whether that view is correct. We think it is. The claim of the city to any interest in the estate of the testator rests upon the second subdivision of the seventh article of the will, which seeks to establish a trust in three executors, for purposes which are thus stated: “To create, endow, and forever maintain an institution in the city of New York, to be called ‘The Samuel Wood Benevolent Institute,’ and to vest in said institute all of my property and estate not otherwise disposed of, and for the use and purposes thereof as the same are hereinafter declared; and to the end that the said ‘ The Samuel Wood Benevolent Institute ’ may, by the laws of this state, be capable of taking and holding real estate and other gifts and donations to its use, I hereby direct and order my executors, as soon as may be after my decease, to apply to the legislature of this state for an act of incorporation incorporating the said ‘The Samuel Wood Benevolent Institute,' with power to take and hold real estate for the purposes of said institute, and to prosecute said application until a charter shall be obtained conformably to this my will, and to be governed as hereinafter provided; and, in case said charter shall not be obtained within the life of the longest liver of my executors, I give, devise, and bequeath the said rest, residue, and remainder of my estate, real and personal, to the mayor, aldermen, and commonalty of the city of New York, in their corporate capacity, to be strictly devoted by the city of New York to the charitable uses in this my will declared. ” The primary gift, for the establishment of the Samuel Wood Benev