In re the Construction of the Last Will & Testament of Moore

241 A.D. 873

Opinion

Order of the Surrogate’s Court of Nassau county, in so far as it holds that paragraph tenth of the will vests in the executors a valid power in trust, reversed on the law and the facts, with costs to appellants, payable out of the estate, and matter remitted to the surrogate to enter an order accordingly. The specific legacy of $1,000 contained in said paragraph of the will is a valid bequest, but the provision under consideration attempts to confer upon the executors a power too vague and indefinite to constitute a testamentary gift. Lazansky, P. J., Kapper and Hagarty, JJ., concur; Tompkins, J., with whom Scudder, J., concurs, dissents and votes to affirm on the opinion of Hon. Leone D. Howell, surrogate of Nassau county, and Matter of Allen (111 Misc. 93) and Collister v. Fassitt (163 N. Y. 281).