In re the Judicial Settlement of the Account of Rosa — 39 N.Y. St. Rep. 917

Majority

p. 917

In the Matter of the Judicial Settlement of the Account of Hyman B. Rosa, Ex’r of Amelia Caroline Griffin, Deceased.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Will—Legacy—Bemaieder undisposed of.

By her will testatrix, after giving certain articles to her relatives, gave pecuniary legacies to certain charitable and religious corporations, but the will contained no residuary clause. By a codicil she gave a cousin §600 and. the income of $2,000 during her life, directing that on the death of the cousin the principal should be disposed of in conformity to her will. Feld, that the $2,000 was undisposed of by the will, and, upon the death of the cousin, went to the next of kin; that the declaration of the will that the estate was disposed of for religious and benevolent purposes was not enough to enlarge the legacies to the corporations in the absence of a beneficiary named.

Appeal from decree of surrogate directing the distribution of the principal of a trust fund among certain corporations, legatees under the will

The beneficiary of the trust created by the codicil having died, the question involved was, whether the principal of the fund passed to the religious and charitable corporations named in the will or to the next of kin ás undisposed of.

W. Farrington and Henry M. Taylor, for app’lts; M. A. Fowler, for ex’rs; J. S. Van Cleef, C. E. Tracy, H. D. Van Orden and Wager Swayne, for resp’ts.

—There is nothing in the will and codicil which deprives the next of kin of their right to distribution. The deceased, in the year 1845, made her will ' By it she gave $2,000 to the American Bible Society; $300 to the Domestic Mission of the Dutch Church, and $300 to the Foreign Mission of the same church. She gave $300 .to the American Tract Society, and a deposit in a Hew York savings bank to a society for the relief of aged, indigent females. There was a specific bequest of books to one person, and of her mother’s mimiature to another.. There was no residuary clause, and the will contained this clause:

“In thus willing my property I wish it to be understood that I dispose of it for religious and benevolent purposes, not as undervaluing my own relatives, for whom I entertain the kindest feelings, but having received my property of the Lord, I feel it my duty to devote to the Lord that which, if divided among my numerous relatives, would be to each an inconsiderable sum.”

In 1868 the deceased made a codicil. By it she gave to a cousin $600 and the income on $2,000 for the life of the cousin, and “ at her death such principal sum shall be disposed of in conformity with my said will.”

p. 918

The testatrix died in 1881. No savings bank deposit was ever found. The $2,000 was undisposed of by the will. There is no gift to the charitable societies beyond that specified in the will. There is nothing in the words expressing a motive for the will which enlarged the gifts to the societies named in the will. An intention to give to charity is not enough. There must be a beneficiary named, or the intent of the testatrix fails.

The decree of the surrogate should be reversed and the proceedings remitted, to the end that distribution may be made to the next of kin, with costs to appellant out of the. estate.

Dykman and Pratt, JJ., concur.