77 N.Y.S. 528 | N.Y. App. Div. | 1902
By his last will and testament Andrew J. Garvey, who was a resident of the city of New York, left the rest, residue and remainder of his estate, after certain specific legaciés, to his executors, in trust to hold the same during two lives specified, and to divide the income received by them among certain hospitals and other beneficiaries; and upon the death of the survivor of the two lives named, he directed his trustees to divide the property so held in trust among the same hospitals and institutions to whom were given the income during the continuance of the trust. One of the hospitals named was “ The Skin .and Cancer Hospital.” At the time of the execution of this will and for some ten years prior to that time there had been in the city of New York a corporation named the “New York Cancer Hospital.” This corporation was incorporated by a special act of the Legislature, passed May 31, 1884 (Laws of 1884, chap. 429), and its hospital was erected upon a block of land between One Hundred and Fifth and One Hundred and Sixth streets- and Eighth and Ninth avenues in-the city of New York, which was used for the treatment of cancer and allied diseases. It also appeared that there was a corporation incorporated under the laws of this State on the 10thday of November, 1882, named the “New York Skin and Cancer Hospital,” which had been in operation in-
The testator was connected with neither of these institutions.- Both had been in existence for years prior to the making of the will, and both were institutions doing a work of the character that it appeared that the testator intended to assist. If neither of these institutions had had the words “ New York ” as a part of their corporate name, the name of the institution adopted by the testator would be exactly that of the respondent and it- would hardly be claimed that' any evidence would be admissible to contradict the express terms of the will. The fact that he eliminated from the chartered name of the institution the words “New York,” certainly does not of itself create an ambiguity ; and the addition of the words as a part of the title of the institution, “ Skin and,” words which are not connected in any way with the name of the appellant, would seem to indicate that it was an institution that treated diseases of the skin as well as cancers that the testator had in mind. The designation of the respondent is complete, except so far as it omits the words “ New York” as a part of the name of the institution, and - the omission of such words cannot, as I look at it, be said to be such a change in the name of the corporation as to render the bequest ambiguous, or allow the use of evidence other than that contained in the will itself to show the testator’s intention. I have examined with care the eases cited by the learned counsel for the appellant to see if there was any case that had held that the omission from the name of an institution of a portion of its name denoting the locality in which the institution existed, or the State which incorporated it, would make the bequest so ambiguous or uncertain as to justify the admission of extrinsic evidence; but I can find no case in which the omission of a part of the name of an institution, when the words used were identical with the remainder of the name, which held that . the court was justified in receiving evidence to show that the testator intended another institution, having for its name but a part of that used as describing the institution intended. If, from the will itself, there could be any doubt as to which institution the testator
It follows that the judgment appealed from must be affirmed, with costs to the respondent* payable out of the fund.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment affirmed,-with costs to respondent, payable out of the fund.
10 Hare, 348.— [Rep.