202 A.D. 213 | N.Y. App. Div. | 1922
For the purposes of this discussion it is necessary to recite the relevant provisions of the will in question:
“ Second. I hereby divide my property and estate, real, personal and mixed, into two parts or portions — the first consists .of my library of books, pamphlets, manuscripts, autographs, engravings and other illustrations, play bills, medals, coins and pictures — these together shall constitute the Benno Loewy Library, and shall, for all time, with their accessions and additions hereinafter provided for, be kept together and be always known and designated by that name and kept separate and apart from any and all other collections owned or controlled by the institution which may obtain the same.
“ Third. The rest, residue and remainder of my property and
“ Fourth. I direct my executors hereinafter named, or such as may qualify their and his successor and successors, to sell, at public or private sale, for cash or on secured credit, the premises No. 22 West 88th Street, in the Borough of Manhattan in the City of New York, and to give good and sufficient conveyance of the same, to collect my life insurance and to sell my personal property, other than that embraced, as above, in The Benno Loewy Library and to invest and from time to time reinvest the proceeds thereof, and to pay the whole of the net income to my beloved wife Isabella Loewy during her life, in lieu of dower and all other claims upon my estate.
“ Fifth. I direct my said executors to enter into a mutual contract with the Trustees of Cornell University at Ithaca, New York, under whatever corporate name it may be known at the time, by which The Benno Loewy Library, hereinbefore described, is turned over to said corporation upon the following conditions:
“ The said corporation will covenant for itself and its successors that they will, for all time, carefully care for, preserve and keep together and separate from all other collections and libraries the said The Benno Loewy Library; that it shall, for all time, be known and distinguished by that name, that nothing therein contained or which may at any time be required out of the income of my residuary estate, shall ever be sold, exchanged, lent, exhibited or consulted, except in the building in which said ‘ The Benno Loewy Library ’ is housed, that said corporation will, at its own expense, provide the necessary shelves and cases for the proper care and exhibition of the same in a suitable building, pay the salaries of the necessary librarians, custodians and other employees and that it will invest my entire residuary estate and keep the same invested in such approved securities in which guardians and trustees under the laws of the State of its incorporation are permitted to invest funds and to expend the whole income in the purchase, first of books and other literary material relating to the State and Shakespeariana (but not costumes), secondly, to books and other literary material relating to free masonry in all languages, including Masonic Medals, third to law books and especially works of International and Constitutional Law and comparative jurisprudence and the continuation of the several series of reports, to keep up the membership in the various societies of which I am a member,
“ Should the corporation of Cornell University be unwilling to enter into the agreement hereinbefore specified, then my said executors, are directed to enter into such agreement with the corporation owning and controlling Johns Hopkins University situated at or near Baltimore, Maryland, and if this corporation also refuses to enter into such contract, then I direct my Executors to enter into such contract with the corporation owning and controlling Leland Stanford Junior University in California, by whatever name it may be known, and if all three of said corporations refuse to enter into such contract, then I direct my said executors to enter into such contract with some other educational institution having a permanent corporate existence and which is exclusively unsectarian and not governed by, or controlled by any religion or denomination of any kind whatever. It is my wish that neither Columbia University in the City of New York, Harvard University at Cambridge, Massachusetts, nor Yale University at New Haven, Connecticut, shall under any circumstances, become beneficiaries under this, my last Will and Testament. ‘ The creation and perpetuation of The Benno Loewy Library has been the main effort of my life, and for it I have made many sacrifices, and my wife Isabella Loewy has approved of my plan and expressed her satisfaction with the provisions hereby made for her, and it is my will, and I hereby direct that if she, or any one in her interest or ■for her, should, by contest of this Will or by any action for the construction thereof by whomsoever brought (which includes each of my executors and every successor of them or any of them) seek to destroy or impair or evade this purpose or any part thereof, then and in any such event or effort, I do hereby give, bequeath and devise to my said wife, Isabella Loewy, her right of dower in and to the said premises 22 West 88th Street in the Borough of Manhattan in the City of New York, and it is my Will and I direct that she shall neither, directly or indirectly, have or receive any other or further part of or share in my said estate. And I da
“ Sixth. If my said wife, Isabella Loewy, should survive me and consent to the probate of this my last Will and Testament, I do hereby authorize and direct my said executors, until the income received from the investments of my residuary estate shall equal at least three thousand dollars per year, to pay to my wife the sum of Fifty dollars per week out of the principal thereof, and to that end, to sell such securities as may be necessary to provide funds therefor.”
The said will was admitted to probate on. the 12th day of December, 1919. The executors qualified and have brought this action to construe the will. The widow of Benno Loewy claimed upon the trial, and here claims, first, that the will in question comes within the condemnation of section 17 of the Decedent Estate Law, which provides that no person having a wife living shall by will devise or bequeath “ to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his * * * estate, after the payment of his * * * debts, and such devise or bequest shall be valid to the extent of one-half, and no more.” And, also, inasmuch as under that law almost the entire endowment fund provided for the keeping up of this library has failed, that the main purpose of the will is destroyed and that the entire provision as to the bequest to Cornell University and alternatively to other colleges, should be declared null and void. This also is the claim made by Ida Goldberger and Max Dombrowsky, who have an interest in the estate as to which the decedent died intestate.
The contention of Cornell University and of the Johns Hopkins University, as legatees under the same provision of the will, is that section 17 of the Decedent Estate Law does not apply to a college or university, and even if it does so apply, that the "legacy is good as to one-half of the estate.
We agree with the learned justice at Special Term (116 Misc. Rep. 628) that section 17 of the Decedent Estate Law contemplates
It is not contended here that the forfeiture declared in the will to any one who should contest the will by an action for construction thereof forfeits the. right of the widow to make this contention. It is impossible that a statute made for the benefit of a widow and next of kin could be avoidable by any such provision in a will.
A more interesting question arises under the contention of the widow and heirs at law that this whole legacy fails by reason of the fact that the endowment in large part has failed under section 17 of the Decedent Estate Law. The property left by Loewy amounted in value approximately to $200,000. The library, Shakespeariana, Masonic literature and other parts of what is designated in the will as the testator’s library, amounted in value approximately to about $65,000. That would leave only about $35,000, instead of $135,000, which would pass to the endowment fund to keep up this library. That this is a material factor in this will would appear from the fact alone that Cornell University has not accepted the gift of the library under the construction of the will given by the Special Term, and such acceptance is apparently withheld for no other discernible reason than to ascertain whether the endowment of $135,000 provided for in the will of the testator shall accompany the gift of the library for the purpose of purchasing books and otherwise maintaining and supplementing the gift of the library itself. Cornell University must provide shelter for the library and the librarian. The library must be kept in a separate apartment. Cornell University is required, to continue subscriptions to certain periodicals. But in the contract to be made by Cornell University which is made a condition of the gift to the university, there is no provision that Cornell should
Upon consideration of all the facts shown upon the record, we are of opinion that the failure of a substantial part of this endowment fund was so far material to the bequest as to render it unlikely that the bequest would have been made had such failure been contemplated, and, therefore, under well-settled rules of construction of wills, the legacy of the library to these institutions was void.
The judgment should, therefore, be reversed, with costs, and a final judgment directed in accordance with this opinion.
Clarke, P. J., Laughlin, Dowling and Page, JJ., concur.
Judgment reversed, with costs, and final judgment directed in accordance with opinion. Settle order on notice.