Majority
p. 169Kings County. Hon. ABRAHAM LOTT, Surrogate. June, 1888. Schwartz v. Bruder. In the matter of the probate of the will of Anna E. Schwartz, deceased. The testatrix had a right to provide in her will that
Headnote
The following provision in a will: “ I hereby direct that my executor hereinafter named to have masses read for the repose of my soul for which I direct him to expend the sum of five hundred dollars,”—Held, void.
Holland v. Alcock, 108 N. Y., 312 —followed.
Construction of decedent’s will, upon application, by Joseph Bruder, therein nominated sole executor, for a decree admitting the same to probate. John Schwartz and another, next of kin of decedent, appeared as contestants.
Henry Fuehrer, for petitioner:
p. 170:a reasonable amount should be expended by the executors for masses for the repose of the soul. The amount directed to be expended for that purpose does not exceed the amount limited by statute which can be bequeathed to religious societies (the estate being something over $3,000), nor will the person who objects to that clause of the will be benefited by the invalidation of that part of the will. In judging of this part of the will the Surrogate has :a right to take into consideration all the circumstances ■of the case, the fact that decedent left no children, that the estate is amply sufficient and that there is not a particle of evidence on the part of the contestant, that the provision of the will in question is an improper one. The direction for masses is void. The case at bar is stronger than that of Holland v. Alcock ( 108 N. Y., 312 ), for, in that case, there was a direction that the masses should be offered in a Roman Catholic church to be selected by the executors while here no beneficiary of any kind is named; no defined or ascertainable living person, or even corporation, has or ever can have any temporal interest in the bequest; and the court says that even if a specified church had been named, a different question would arise. Cites, also, Gilman v. McArdle ( 99 N. Y., 451 ); Power v. Cassidy (79 id., 602); Prichard v. Thompson (95 id., 76).
Edward P. Schell, for next of kin :
In this proceeding I am required to pass upon the validity of the following clause of
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the will of decedent: “ I hereby direct that my executor hereinafter named to have masses read for the repose of my soul for which I direct him to expend the sum of five hundred dollars.” I am constrained by the decision of the Court of Appeals in the case of Holland v. Alcock ( 108 N. Y., 312 ) to determine this disposition to be invalid.