In re the Will of Opdyke

The last will of Ida R. Opdyke directed that after the payment of her debts and funeral expenses, and the satisfaction of certain minor legacies of furniture, silverware and the like, “ All of the rest, residue and remainder of my property of every sort and description shall be divided into two equal parts.” Out of one part she bequeathed the sum of $5,000 to the First Baptist Church of Jamestown, N. Y. “ The balance of this one-half of my estate ” she devised and bequeathed, for educational purposes, to the Southern Baptist Convention. The other one-half part she devised and bequeathed to a trustee upon certain trusts for her son Wilbur F. Opdyke, her grandson George Francis Opdyke, and the issue of the latter, the nature of which is not material upon this inquiry.

The Decedent Estate Law (Cons. Laws, ch. 13), in section 17, as it read when the testatrix died, provided as follows: “No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more.” (L. 1923, ch. 301.) It is not possible to discover wherein these provisions have the remotest applicability to the will under consideration. The statute forbade Ida R. Opdyke, having a son, to devise or bequeath to any religious society “ more than one-half part ” of her estate. Ida R. Opdyke did bequeath

• The assets of the estate, appraised as of the time of death of the testatrix, had an approximate value of $400,000. Due to advantageous sales of her securities, made subsequently to her death, the assets now have a value of approximately $600,000. It has been held, Under the supposed authority of Matter of Seymour ( 239 N. Y. 259 ), that the statute did not permit the testatrix 'to leave to religious uses more than $200,000, or one-half of her estate at the date of her death, as then valued; consequently, that $100,000, the gain subsequently accruing upon that one-half, could not pass to the religious society named. The result flowing from this holding is curious: The gain which the society may not take does "iiot pass into the trust fund, for the reason that such fund is to be erected “ out of the other half,” and the gain does not proceed from such half. Consequently, as to it there is an intestacy. Yet, the gain accruing upon ‘the $200,000, which the trustee takes, emerges “ out of the other one-half” and constitutes a part __ thereof. Apparently, there are involved, in the holding, these anomalies: That there may be two unequal halves of the same thing; that a gift of two halves is a gift of less than the whole; that a bequest of “all the rest, residue and' remainder of my property of every sort and description ” is a gift only of a part. The explanation given is that the same thing is not halved; that one-half of an estate given to non-charitable purposes is one-half of the entire estate transferred; whereas, given to charities, it may not be, under the statute, more than one-half of the estate as valued at the date of the testator’s death. In point of fact, the statute makes no such provision, since its prohibition runs only against a gift by a testator of “ more than one-half part of his or her estate.”

In our case the testatrix has in express words provided that one-half of her net estate and no more shaE pass to religious uses. No matter what the estate might be, whether it gained or lost through administration, one-

The order should be modified in accordance with this opinion and, as modified, affirmed, with costs to the appellant.

Carduzo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.