In re the Judicial Settlement of the Account of United States Trust Co.

Majority

p. 643

Matter of the Judicial Settlement of the Account of United States Trust Co., as Executor, Etc., of Mary C. Johnes, Deceased.

(Surrogate's Court, New York County,

December, 1898.)

Headnote

Corporations — Power of a hospital to take a smaller sum than would endow a bed under its rules.

A clause in a will provided “ I give and bequeath to the New York Hospital now located on West Fifteenth street, in the city of New York, the sum of five hundred ($500) dollars to be used to endow a bed ha

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said institution in perpetuity”. The by-laws and ordinances of the hospital provided for the endowment of beds and gave the donor certain rights in regard to them, provided, however, that the amount contributed should not be less than 5,000.

Held, that it was not to be presumed that the testatrix had the‘bylaws in mind and that, although her gift was only the sum of $500, the legatee had a right to take it and to apply it pro tanto to the maintenance of a bed.

Proceedings upon judicial settlement of the accounts of an executor.

Edward W. Sheldon, for accounting trustee.

Charles E. Miller, for New York Foundling Asylum.

Wilson M. Powell, for Society of New York Hospital.

James E. Kelly, special guardian.

As incident to the distribution to be made upon the judicial settlement of the accounts of the executor of the will of the decedent, a question as to the effectiveness of the bequest contained in the sixth clause of her will is raised. That clause is as follows: “ I give and bequeath to the New York Hospital, now located on West Fifteenth street, in the city of New York, the sum of five hundred (500) dollars, to be used to endow a bed in said institution in perpetuity.” The by-laws and ordinances of the hospital make provision for the endowing of beds and the enjoyment of certain rights and privileges by any person making a contribution for the purpose of such endowment, where the amount contributed shall not be less than $5,000. In this case the testatrix manifestly could not have had in mind, in making the gift in question, the bylaws and ordinances referred to, and could not have intended any such endowment as they provide for. It does not appear that the testatrix was aware of their requirements or of their existence, much less of the privileges and advantages inuring to the donor of a contribution made in conformity to them. She probably made the gift in question in entire ignorance of the by-laws and ordinances, and with the object of making, or contributing toward the making, of a provision for the maintenance of a free bed by the hospital. It is extremely improbable that she would think that the bequest

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which she had made would of itself be sufficient for, or be accepted by the donee as sufficient for, the maintenance of a free bed for the length of time contemplated by the bequest. It is more likely that the testatrix intended that her gift should be used in connection with funds of the legatee already appropriated, or which it is in the habit of appropriating, or is willing to appropriate, to the purposes which she had in view; that is, the maintenance of a bed, or beds, for the sick, free of charge. If the legatee is willing to accept and apply the legacy for that purpose, I see no valid objection to its right to receive it. See Hayden v. Conn. Hospital, 64 Conn. 324 .

Decreed accordingly.-