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In re the Probate of the Last Will & Testament of O'Regan

62 Misc. 592 Court N.Y. Sur. Ct. English

Contents

Majority

p. 592
Matter of the Probate of the Last Will and Testament of Patrick B. O’Regan, Deceased.
(Surrogate’s Court, Kings County,
March, 1909.)

Headnote

Wills — Interpretation and construction — Nature and quality of estates — Trusts or individual interests — Trusts implied — From precatory words.
Where testator gave the residue of his estate to his executors for their use and benefit, with a request to them that a portion thereof be used for masses for the repose of his soul and the balance tq be given to some deserving charity, the prayer that the residue be devoted to the uses mentioned rests only upon the conscience of the legatees and does not impair the personal quality of their ownership.
Proceeding upon the probate of a will.
Anthony F. Tuozzo, for proponent.
Michael A. O’Neill, special guardian.

In probate proceedings, construction is asked for the following clause of the will:

“ XI. I give, devise and bequeath all the rest, residue and remainder of my estate of every nature and kind soever and wherever situated, unto my said Executors for their-use and benefit.. With a request to them, that a portion of said residue be used for Masses for the repose of my soul, and the balance given to some deserving charity.”
p. 593
The will appoints two nephews as executors.

This gift was to the persons who were named as executors, and has the same effect as if .it were made to them nominatim.

It was not for them in their capacity as executors. Indeed, as such, strictly, they have no capacity to administer it, and no flavor of a trust outside of their executorship is found.

That the gift was to them personally appears in its limitation “ to their use and benefit.” The prayer that the residue shall be devoted to certain uses rests only upon the conscience of the legatees and does not impair the personal quality of their ownership.

This interpretation, so far as it can affect the personal property, should be expressed in the decree of probate.

Decreed accordingly.