Estate of Murphy

Headnote

After an absolute bequest, precatory words of desire, request or recommendation that the legacy be applied to certain purposes, will convert the legatee into a trustee, where it is shown that the clause in question was inserted in the will on the express understanding and agreement that the bequest shall be so applied.

Appeal to the surrogate from an order entered on the report of the appraiser fixing the transfer tax upon the residuary estate.

The 20th clause of the will provides as follows: “ I give, devise and bequeath all the rest, residue, and remainder of my estate at the time of my death to the Very Rev. John M. Farley and Jeremiah Fitzpatrick, both of the city of Uew York, and to the survivor of them, and the heirs, executors, administrators and assigns of such survivor, absolutely and forever. It is my wish and request that the devise and bequest, and all ' the proceeds thereof be applied to and be distributed among all the Roman Catholic parochial schools of the city of ¡New York at the time of my death, fro rata, that is to say, in proportion to the average number of pupils attending such school at the time of my death. In making this request, it is not my intention or wish to interfere with the legal and personal character of this devise and bequest to the said Very Rev. John M. Farley and Jeremiah Fitzpatrick, and the survivor of them, and the heirs, executors, administrators and assigns of such survivor, forever, as an absolute bequest.”

The legatees, who are also the executors, swore that the residuary estate “ will be applied to and distributed among all

the Roman Catholic parochial schools of the city of New York existing at the time of testator’s death, according to his wish; that each of said schools is owned, maintained, governed and controlled by a Roman Catholic church, which is a religious corporation, and such church maintains said school for the purpose of imparting religious instruction as well as furnishing a secular education.”

John H. Farley, one of the executors and residuary legatees, is vicar general of the Roman Catholic diocese of the city of New York. He made a separate affidavit, in which he stated that he was a nephew of the testator, and had several interviews with him during his lifetime relative to the disposition of his estate; that the testator was an ardent advocate of the necessity of having Roman Catholic children educated in Roman Catholic parochial schools, and that he fully intended that the bequest described should be applied to those schools; and that there was a distinct understanding and agreement between him and the testator that the residuary estate should be distributed among those schools, which agreement will be faithfully carried out by the executors.