In re Lyon

The appeal is interesting for its novelty, and not free from difficulty. The testator’s will, made in 1913, undertook to create a trust for his sister for her life in all the property of which he attempted disposition, then a second life estate insufficient of the estate to pay an income of $600; then he committed the remainder to a board of trustees, constituted as provided: (1) From the rents, issues, of the remainder, “to plan,- lay out and build a public cemetery, which cemetery is to be known as ‘the Merritt Public Cemetery,’ upon the farm of land upon which I now live on Ridge street, in the towns of Rye and Harrison, Westchester county, New York, for the purpose of providing plots or places wherein the people of the village of Port Chester and vicinity may be buried without charge as soon as they, my said charity trustees, or a majority of them shall see fit”; (2) to use the income “forever thereafter” to support the cemetery, to build one or more vaults therein, and to keep in good condition a small burial plot wherein his parents and other relations are buried. The testator enjoins “courts of law and equity” to construe the will so as to apportion his estate to such uses, and “that the same should in no case, for want of legal form or otherwise, be so construed that my rela

The will was admitted to probate upon the petition of John M. Lyon, who became sole executor, and who, with George A. Slater, was appointed committee of the person and the estate of the testator’s sister, Emma E. Merritt, who was his sole next of kin and heir at law, and who was adjudged incompetent on July 15th of the same year. There were found 11 instruments executed by the sister to the testator—2 purporting to convey four parcels of land, since appraised at $88,900, and 9 purporting to assign bonds and mortgages aggregating $52,800; but at the instance of the committee they were all adjudged void as procured fraudulently. It is shown by the final account of the executor that the testator’s entire net estate is $15,314.16, subject to some deductions for costs of administration and other purposes, leaving a balance of about $12,000. It appears now (1) that the testator did not own the land which he directed to be converted into a cemetery; (2) that there are no rents to lay out and to support any cemetery; (3) that the only personal estate from which income could arise for that purpose is now about $12,000. Upon the final accounting the executor asked for a construction of the will, so far as it would create a charitable use, and from the decree that the provisions were valid the executor and committee appeal.

[1,2] Had the testator owned the property, the question would fall within Inglis v. Trustees of the Sailors’ Snug Harbor, 28 U. S. (3 Pet.) 99, 7 L. Ed. 617 , and Trustees of Sailors’ Snug Harbor v. Carmody, 211 N. Y. 286 , 105 N. E. 543 , provided a charitable use for a public cemetery is authorized by law. Section 13a of the Personal Property Law, and section 114a of the Real Property Law relate to private burial lots—but not to public cemeteries. But the land, which underlay the testator’s project, was not his property. He had conveyances of it, and was the apparent heir to it. But his tenure, if under the deeds, has been declared fraudulent, and his succession was defeated by his sister’s survival. The same is true of the greater part of the personal estate. There remains nothing but his intention to provide a free public burial place for the people in the environment of his residence, irrespective of their condition. I accept, with much hesitation, the conclusion of Surrogate Sawyer’s opinion that the purpose is charitable. In any case, it would be a good trust as to the family lot. The intended method of realizing the purpose largely failed. There cannot be such a cemetery as the testator planned. There is left a small sum of money. The trustees can and must invest it as the will directs. With the income they can buy burial privileges in some cemetery, but they cannot maintain a public cemetery. The money cannot be regarded as a free public burial fund for all the people of Port Chester. The testator’s vision has vanished. What he conceived is no longer conceivable.

[3] At such a time, resort is had to present section 113 of the Real Property Law, relating to “grants and devises of real property for charitable purposes.” It treats of indefiniteness or uncertainty of

[4, 5] But decision now would be premature. It is not for the surrogate or this court to decide whether the Supreme Court will execute the trust in some degree. The final direction rests with the Supreme Court upon the application of the charity trustees. That can be done when the life estates expire. Circumstances may change. The incompetent may be restored, and elect to take under her brother’s will. Then the testator’s plan could be executed: Meantime the committee should not accept the provision made for her under the will. She cannot accept its benefits and reject it otherwise, and they should not elect for her.

The decree should be amenable to whatever disposition the Supreme Court may make of the question. In case it should refuse to administer the trust, the decree should be amendable to make disposition of the property. The decree, modified to meet such a possible exigency, is affirmed, without costs. All concur.