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In re the Judicial Settlement of the Account of Philbrick

74 Misc. 327 Court N.Y. Sur. Ct. English

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p. 327
In the Matter of the Judicial Settlement of the Account of Edwin C. Philbrick and Paul M. Warburg, as Executors of the Last Will and Testament of Julia Hallgarten, Deceased.
(Surrogate’s Court, New York County,
November, 1911.)

Headnote

Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Fiduciary or individual, legal or equitable and other qualified interests — Trusts implied.
A bequest to one with the added words, “ it being understood between us that she is to spend said amount in charity, both in the Kingdom of Italy and in the City of New York, U. S. A.,” is not a personal bequest to the legatee, but was intended to be held by ' her in trust and used for'purposes so indefinite and uncertain as to render the gift-'void.
Proceeding upon the judicial settlement of the accounts of .executors.
Duer, Strong & Whitehead (Marshal Stearns, of counsel), for executors.
Thomas Garmody, Attorney-General, for State.

Testatrix died on the 1st day of June, 1909, leaving a last will and testament dated March 21, 1908, and a codicil thereto dated December 16, 1908. Upon the judicial settlement of the accounts of the proceedings of the executors the question of the validity of the following paragraph of the codicil is raised: “ I give, devise and bequeath the amount which has been bequeathed to me by'the.last will and testament of my son to my daughter, it being understood between us that she is to. spend said amount in charity, both in the. Kingdom of Italy .and in the City of Hew Yorlc, U. S. A.”'

The bequest evidently was intended by the testatrix not for the personal benefit of-the legatee, but to be held by her in trust and used for the general purpose specified by her. Gross v. Moore, 68 Hun, 412 , 414; affd., 141 N. Y. 559 , upon opinion below; Matter of Keenan, 107 App. Div. 234 . That purpose may.comprehend a variety or infinitude of objects and purposes as contradistinguished from beneficiaries, any one of which may or may not have been contemplated by the testatrix, making utterly improbable the ascertainment and execution of her purposes and intentions by any court owing to their great indefiniteness and uncertainty.

The bequest mustj' therefore, be declared void, and this notwithstanding the greatly enlarged powers to make gifts for charitable and benevolent objects given by chapter 701, Laws of 1893, and chapter 291, Laws of 1901, which, so far as they affect -personal property, are now embodied in section 12, article 2, chapter 41 of the Consolidated Laws. Matter of Scott, 31 Misc. Rep. 86 , 87; Manley v. Fiske, 66 id. 390, and 139 App. Div. 667 ; Matter of Shattuck, 193 N. Y. 446 . The amount ineffectually attempted to. be bequeathed passes bo the residuary legatees under the will of decedent.

Decreed accordingly.

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