Estate of Moderno — 5 N.Y. St. Rep. 362

Majority

p. 362

Estate of Antonio J. Moderno, deceased.

(Surrogate's Court, New York County,

Filed November 3, 1886.)

Headnote

Wills — Cohsteuctioe — Charitable bequests — Laws 1860, chapter 360.

The testator devised all his estate “ with the exception of my real estate in the Island of Madeira, (of which I have made testamentary disposition in accordance with the laws prevailing there,”) to his executors in trust, to pay the income to his wife, and after her death to divide the principal sum equally among certain charitable societies in New York. Held, that before the court could determine whether the bequest to the societies in question is to any extent invalid under Laws of 1860, chapter 360, the value of the whole estate owned by the testator at his death, must be ascertained, and the nature of this testamentary disposition of the real property in Madeira. Tlie court must also be advised as to the value of the trust provision for the widow’s benefit.

B. J. Newland, for petitioner; Bunniny Fowler, W. A. W. Stewart, B. F. Bunniny and F. L. Faneher, for legatees.

The surrogate is asked to determine, in accordance with section 2634 of the Code of Civil Procedure, the validity and effect of certain dispositions contained in this testator’s will.

The sole dispositive provision of that instrument is as follows : “ All my estate of every name and kind and wheresoever

p. 363

situate, with tbe exception of my real estate in tbe Island of Madeira, (of wbicb I have made testamentary disposition in accordance with tbe laws prevailing there,) I give, devise and bequeath unto my executor in trust to invest and keep the same invested, and to collect the interest and income thereof and to apply the said interest and income to the use and benefit of my wife for and during her natural life, and at the death of my said wife I give and bequeath the said principal sum to my executor in trust to divide the same in equal portions among the following named institutions.” Then follow the names of four charitable and benevolent societies in the city of New York.

Chap. 360 of the Laws of 1860, entitled “ An act relating to wills” (3 Banks, 7th Ed., 2288), declares that “ no person having a husband, wife, child or parent shall by his or her last will and testament devise or bequeath to any benevolent or charitable society more than one-half 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.”

It is claimed in behalf of this testator’s widow that, for the purpose of this section, his “ estate ” should be treated as co-extensive with the property of which this will undertakes to make disposition, and that the real estate in Madeira should be thrown out of consideration.

This contention seems to be unsound. Before the court can determine whether the bequest to the societies in question is to any extent invalid, the value of the whole estate owned by the testator at his death must be ascertained and the nature of the testamentary disposition of the real property in Madeira. The court must also be advised as to the value of the trust provision for the widow’s benefit.

I can give no direction respecting the cost of making the suggested presentation of facts. I doubt my authority to direct the executor to expend moneys in this regard; and, even if the authority were beyond dispute, it would nofbe proper under the circumstances disclosed by the papers before me to require the representative of the estate, at the petitioner’s instance, to incur expenses which events may possibly proved to be justly charge able to the petitioner herself.