In re Murray's Will

In the proceeding to prove the will of the deceased, the validity of the residuary clause is asked to be determined. This clause is in the following words :

“Eleventh. All the restj residue, and remainder of my estate I give, devise, an'd bequeath to my executor, in trust to invest, keep invested, and pay the principal and income thereof towards the purchase of a plot in Calvary, or other cemetery, Calvary being my choice, and to the erection of a monument, and the care of said plot and monument, as my said executor may see fit to make payments therefor.”

By this provision, the testatrix attempted to create a trust which should bind her residuary estate for an indefinite period of time, not measured by any specified lives, and for a purpose not religious, educational, charitable, or benevolent, for the benefit of indefinite unknown persons who might be employed by her executor or his successor, at his discretion. Such a trust is void. Holland v. Alcock, 108 N. Y. 312 , 16 N. E. 305 ; In re Raab’s Will, 42 App. Div. 141 , 58 N. Y. Supp. 1043 ; Allen v. Stevens, 161 N. Y. 122 , 55 N. E. 568 . It is not a direction to the executor concerning the expenditure of a specified sum of money for an interment of a kind approved by the decedent, and in accordance with her means, and so not within In re Frazer, 92 N. Y. 239 . The executor will, of course, be charged with a duty to attend to the proper interment of the testatrix, but the clause in question is not divisible into parts, and is entirely void.

Decreed accordingly.