In re the Judicial Settlement of the Account of Baldwin

Majority

p. 325

In the Matter of the Judicial Settlement of the Account of George Baldwin, John S. Mowry and Robert Keenan, as Executors of the Last Will and Testament of Robert Harris, Deceased.

(Surrogate’s Court, Kings County,

November, 1911.)

Headnote

Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Fiduciary or individual, legal or equitable and other qualified interests — Construction of provision in form of trust as a direct or absolute gift.

A bequest to an incorporated association, “for the purpose of founding a home midway on Long Island for destitute Masons, their widows or children, more especially for Brooklyn Masonic veterans, as it is my wish they should have the preference,” is an absolute gift to the corporation; and the words defining the testator’s desire in the application of the gift are merely precatory.

Judicial settlement of the accounts of executors.

Howard 0. Oonrady, for executors.

Albert W. Winton, for Ann Harris et al., objectors.

p. 326

Charles Fox, for the Limerick Protestant Orphan Society.

Rufus L.- Scott, for Trustees of the Brooklyn Masonic Veterans.

Fisher & Voltz, for Industrial School Association of Brooklyn, Eastern District.

The first paragraph of the will is as follows: ■

“First: I give to the Trustees of the Brooklyn Masonic Veterans the sum of One Thousand Dollars $1000.00 for the Purpose of Founding A Home Midway on Long Island for Destitute Masons, Their Widows or Children, more Especially for Brooklyn Masonic Veterans, as it my wish they Should have the Preference.”

The argument that this gift was invalid upon any of the grounds asserted depends upon the assumption that the gift was in trust to found the home or was qualified by a condition that the home must be founded. These questions are not reached, since the gift is absolute and the definition by the testator of the purpose to which he desired the gift to be applied is merely precatory. Johnston v. Hughes, 187 N. Y. 446 .

There the gift was to the trustees of St. Francis Hospital "for the benefit and use of the Blessed Virgin-Mary Purgatorial Fund of the said Hospital.” It was contended that the gift was void for the reason that there was no such fund and that the only possible object of such a fund was the saying of masses' for the spiritual welfare of the souls of the dead in purgatory, and. that "the corporation had no power to act as trustee for such a fund or purpose.' This attack upon the ■ gift was avoided by the express holding that the gift was absolute and was not cut down or qualified by any trust or condition.

It is obvious that the words of the will at bar which were appended to the gift-under examination contained nothing more to cut down or. restrict, the bequest -than was found in the words considered in the case last cited.

As was said upon the trial, there can be no direction with

p. 327

respect to the gift to “ The Industrial Home in South Third Street,” unless common law proof be given upon which a finding can be made of the identity of the legatee intended. The affidavit submitted in this respect is properly, objected to and must be disregarded. The executors can only be directed to pay the legacy to the Industrial Home in South Third street and, in paying it, must assume the perils of mistake.

The gift to the Protestant Orphan Society of the Oity of Limerick, Ireland, is properly payable to the Limerick Protestant Orphan Society in Ireland.

The legacies to the executors seem to be waived in schedule F of the account.

The account will be settled accordingly.

Decreed accordingly.

Cases cited

Johnston v. Hughes 187 N. Y. 446 N.Y. 1907-02-26 p. 326