In re the Estate of Burger

Richard E. Burger, at the time of his death, was engaged in the operation of retail furniture stores at Schenectady, Glens Falls, Poughkeepsie and Newburgh. He had no near relatives, and, after making many charitable bequests to-various organizations in these cities, gave the residue of his estate to Mary Perrott and Louise Green. The estate amounted to about the sum of $1,021,499.66.

The executors have petitioned for judicial construction of the following paragraphs of his will:

“Eighth. I give, devise and bequeath to. Tubercular Hospital of Newburgh, N. Y., the sum of Seven thousand ($7?QQ0) Dollars,

“Twelfth. I give, devise and bequeath to Tubercular Hospital of Poughkeepsie, N. Y., the sum of Three thousand ($3,000) Dollars.

“ Twenty-seventh. I give, devise and bequeath to Tubercular Hospital of Schenectady, N. Y., the sum of Seven thousand ($7,000) Dollars.

“Thirty-second. I give, devise and bequeath to Tubercular Hospital of Glens Falls, N. Y., the sum of Five thousand ($5,000) Dollars.

“Thirty-seventh. I give, devise and bequeath to Newburgh Chapter of the American Red Cross located at Newburgh, N. Y., the sum of Five thousand ($5,000) Dollars.

“ Thirty-eighth. I give, devise and bequeath to Poughkeepsie Chapter of the American Red Cross located at Poughkeepsie, N. Y., the sum of Five thousand ($5,000) Dollars.

“Thirty-ninth. I give, devise and bequeath to Schenectady Chapter of the American Red Cross located at Schenectady, N. Y., the sum of Five thousand ($5,000) Dollars.

“Fortieth. I give, devise and bequeath to Glens Falls Chapter tof the American Red Cross located at Glens Falls, N. Y., the sum of Five thousand ($5,000) Dollars.

“Forty-first. I give, devise and bequeath to the Newburgh Corps of the Salvation Army, Inc., located at Newburgh, N. Y., the sum of Five thousand ($5,000) Dollars.

“Forty-second. I give, devise and bequeath to the Poughkeepsie Corps of the Salvation Army, Inc., located at Poughkeepsie, N. Y., the sum of Five thousand ($5,000) Dollars.

“Forty-third. I give, devise and bequeath to the Schenectady Corps of the Salvation Army, Inc., located at Schenectady, N. Y., the sum of Five thousand ($5,000) Dollars.

“Forty-fourth. T give, devise and bequeath to the Glens Falls Corps of the Salvation Army, Inc., located at Glens Falls, N. Y., the sum of Five thousand ($5,000) Dollars.

“Forty-fifth. In the event of any of the person or persons who are to receive bequests under this my last will and testament should predecease" me, or if for any reason any of the charitable organizations should be unable as a matter of law to take or receive the bequests hereinbefore provided, then and in that event, it is my will that the moneys so bequeathed shall revert to and become a part of my residuary estate.”

The legacy of $7,000 to Tubercular Hospital of Newburgh, N. Y., is claimed by the county of Orange. The proof shows that “ Newburgh Tuberculosis Sanatorium ” was incorporated on or

The legacy of $7,000 to Children’s Home of Newburgh, N. Y., is claimed by the Commissions of the Home of the City and Town of Newburgh. This is a poor district within the county of Orange duly constituted as a municipal corporation by chapter 44 of the Laws of 1853 and continued by chapter 541 of the Laws of 1865, but the name was changed by chapter 467 of the Laws of 1905. This corporation was authorized by chapter 114 of the Laws of 1885 to purchase a lot of land in the city of Newburgh and erect a suitable building to be used and occupied as a home for dependent children. This was done and the property in question has since been known as the “ Children’s Home of Newburgh ” and there is no other institution known by such name in the city of Newburgh.

The legacy of $3,000 to Tubercular Hospital of Poughkeepsie, N. Y., is claimed by the city of Poughkeepsie. On February 15, 1910, the state commissioner of health granted a certificate to the city of Poughkeepsie authorizing the establishing of a tuberculosis hospital in the town of Poughkeepsie, Dutchess county. This is near the city of Poughkeepsie, and is known as the “ Tubercular Hospital of Poughkeepsie ” and also as the “ Samuel W. Bowne Memorial Hospital ” in honor of the person named because of substantial gifts made by himself and his wife. There is no other hospital in or near Poughkeepsie engaged in the care of persons suffering from tuberculosis.

The legacy of $7,000 to Tubercular Hospital of Schenectady, N. Y., is claimed by the county of Schenectady. The county of Schenectady consists of the city of Schenectady, containing about eighty-five per cent of the entire county population, and five adjoining towns containing about fifteen per cent of the entire county population. During the year 1908 the Red Cross organization established a camp for treatment of tuberculosis in the city of Schenectady. In 1909 the board of supervisors of -Schenectady county organized the Schenectady County Tuberculosis Hospital. In 1911 the name was changed to “ Glenridge Sanatorium ” because of objection to the word “ tuberculosis.” This is located in the town of Glenville, which is separated from the city of Schenectady by the Mohawk river. There is no other institution in Schenectady county engaged in the care of persons suffering from tuberculosis.

The legacies to the various chapters of the Red Cross are claimed by American National Red Cross, a federal corporation. The various local organizations are known as “ chapters ” and are not incorporated. The local organizations at the city of Newburgh and the city of Glens Falls are known as the “ Newburgh Chapter ” and the “ Glens Falls Chapter,” respectively, and the organizations at the city of Poughkeepsie and the city of Schenectady are known as “ Dutchess County Chapter ” and “ Schenectady County Chapter,” respectively.

The legacies to the various corps of the Salvation Army are claimed by the Salvation Army, a domestic corporation, authorized by law to establish and maintain places for religious work, lodging, shelters and other purposes throughout the state of New York. The local organizations are known as “ corps ” and are not incorporated.

The executors claim that each of the organizations above named is unincorporated and “ unable as a matter of law to take and receive the bequests; ” that the proper construction of paragraph marked “ Forty-fifth ” of said will is to make the legacies conditional; that the paragraph should be construed to mean that if any of the legatees named was not incorporated the legacy should become part of the residuary estate and that, in any event, the state tax commission construed testator’s will in the transfer tax proceeding and this court confirmed its decision by the order fixing tax and that it is of no consequence whether said decision was rendered in a transfer tax proceeding, probate proceeding or judicial settlement proceeding or a direct proceeding (to construe testator’s will), the legal effect is the same and the decision stands as the settled law in the construction of testator’s will until reversed or modified, and this, irrespective of who was a party thereto. The report of the transfer tax appraiser was to the effect that the legacies in question became part of the residuary estate and the amounts were added to the residue and taxed accordingly.

It is obviously necessary to determine this question first and it is my opinion that the claim is untenable and that the order in a transfer tax proceeding is binding on questions of taxation only

The remaining question for determination is as to the validity of the legacies. The will itself discloses the intention and purpose of the testator to leave substantial legacies to various fraternal and charitable organizations in the various sections where he maintained stores, including the Young Men’s Christian Association, Young Women’s Christian Association, St. Luke’s Hospital, and Masonic Club of Newburgh; Young Men’s Christian Association and Young Women’s Christian Association of Poughkeepsie; Young Men’s Christian Association, Young Women’s Christian Association, Ellis Hospital, Old Ladies Home, and Children’s Society of Schenectady; Young Men’s Christian Association, Glens Falls Hospital, Glens Falls Home for Aged Women, and Masonic Club of Glens Falls. After the legacies to each group named in each of the said cities, we find the legacy to the Tubercular Hospital in that city and, in connection with the Newburgh organizations, the legacy to the Children’s Home of Newburgh. The intention and purpose of the testator is manifested from the language and arrangement of the provisions of the will alone and makes it unnecessary to resort to extraneous evidence. It was his intent and purpose to leave substantial legacies to the tuberculosis hospitals operating in the various sections where he maintained stores and the geographical location, whether within or without the city limits, is of no importance nor is the name under which they operated or the question as to whether or not the hospitals were operated as independent corporations or as branches or departments of municipal corporations. It is likewise clear from the will itself that he desired to aid in the work of the Red Cross and Salvation Army in these various sections and the question as to whether or not these were operated as independent corporations or as branches of a state or federal corporation is of no importance. His intention and purpose are clear and should be carried out unless unlawful. The legacies to the Tubercular Hospital of Newburgh, Children’s Home of Newburgh, Tubercular Hospital of Poughkeepsie, Tubercular Hospital of Schenectady, and to the various chapters of the Red Cross and Salvation Army fall within the well-established principle that in order to sustain testator’s purpose, the legacies go to the corporation where a branch or department or subsidiary of it is named as legatee, and the respective legacies will be paid accordingly. Kernochan v. Farmers Loan & Trust Co., 187 App. Div. 668 ; affd., 227 N. Y. 658 .

The evident purpose of the first part of paragraph marked "Forty-fifth ” was to limit legacies to specified persons and the second park, was the usual precaution of a careful attorney to guard against intestacy. The testator clearly intended to aid in the work of the various charities mentioned without regard to the name of the particular organization which carried on this work, and the construction suggested by the executors would defeat his intention. To hold otheiwise would be in effect to say that this was a mere idle gesture on his part and that he intended that the amounts named should not be used for this charitable work but should go to the residuary legatees named in his will.

Decreed accordingly; settle decree on three days’ notice.