Majority
p. 903In the Matter of the Application of Rose Roth, Legatee, for a Construction of the Last Will and Testament of Mary Gerity, Deceased. Rose Roth, Appellant; Margaret Connolly, Individually and as Executrix, etc., of Mary Gerity, Deceased, Respondent.
Decree of the Surrogate’s Court of Queens county reversed on the law, with costs to appellant payable out of the estate, and the executrix directed to make payment of the legacy to the appellant, Rose Roth. The gift of $2,100 in paragraph ninth is absolute. The language following that
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absolute gift, respecting time of payment, is, at best, a condition subsequent, which is inoperative because there is no gift over in the event of a breach of said condition. It is impossible to comply with the condition because the lot upon which the building was desired to be placed is not accessible to the street except over the land of another. Under these circumstances the language expressing a desire that such a building be erected is precatory, not mandatory. (Matter of Vandevort, 62 Hun, 612 ; Matter of Donald, 149 Mise. 142; Allen v. Trustees of Great Neck Free Church, 240 App. Div. 206 .) Lazansky, P. J., Carswell, Davis, Johnston and Adel, JJ., concur.