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In re the Probate of the Will of Ingersoll

42 N.Y. St. Rep. 752 Court N.Y. Decision date 1892-02-09 English

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p. 752
In the Matter of the Probate of the Will of Almira Ingersoll, Deceased.[1]
(Court of Appeals,
Filed February 9, 1892.)

Headnote

Will—Bequest for charitable uses—Trust.
The will of the testatrix stated in its eighth clause that she was desirous-of leaving some of her estate to aid in carrying on the work of the Christian, ministry, and that to that end she authorized her executor to expend, through the agency of the Baptist church and its various societies, missionary and educational, such a sum as he deemed hest, not to exceed §1,000; and in order that the executor might “ do so without hindrance,” she gave and bequeathed to him the said sum, “ and the same is to him and his assigns forever for the uses and purposes hereinbefore indicated.” Held, that this clause was void, as it created a trust which could not he carried out and did not make an unconditional gift of the money to the executor, which he could dispose of as he thought fit.
Appeal from judgment of the supreme court, general term, fifth department, reversing part of decree of surrogate adjudging a clause of the will void.
Fred. J. Blackmon, for app’lts; W. S. Thrasher, for resp’t.

We think the judgment of the general term, herein should be reversed and the decree of the surrogate affirmed..

p. 753
The eighth clause of the will we have no doubt creates a trust and does not make an unconditional gift of tlie money to the executor, which he could dispose of as he thought fit. The language is not merely precatory. It is clear, distinct and certain and it gives the money to the executor “for the uses and purposes” named in the clause. Those uses and purposes cannot be carried out. What follows that language is simply a written statement of what is implied in every gift to a trustee, viz: that the donor relies upon the trustee to carry out his wishes.

It is unnecessary to say more in this case than that we agree-generally in the views expressed in the dissenting opinion of Mr. Justice Macomber at the general term upon this point, while expressing no opinion upon the question therein also discussed, whether in any aspect the gift violates the statute in regard to bequests to charitable societies as made within two months before-the death of the testator.

The judgment of the general term must be reversed and the-decree of the surrogate affirmed, with costs of both parties payable out of estate.

All concur.