In re the Construction of the Will of Lewis

278 A.D. 888, 104 N.Y.S.2d 952, 1951 N.Y. App. Div. LEXIS 5067

Opinion

Decree and final order reversed on the law and facts and matter remitted to the Surrogate’s Court for further proceedings in accordance with the memorandum, without costs of this appeal to any party. Memorandum: The Surrogate has erroneously determined that paragraph “Eighth” of the will did not create a trust for a general charitable or benevolent purpose and has therefore refused the executor’s petition that the trust be administered cy pres. Paragraph “ Eighth ” of the will, in our opinion, does create a trust for a general charitable and benevolent purpose, and the decree should be reversed accordingly and the matter remitted to the Surrogate’s Court for such further proceedings as may be necessary in order that the Surrogate may give such instructions for the administration of the trust as will most effectively accomplish the general charitable purposes of the bequest. The order fixing allowances also should be reversed on the ground that the record contains inadequate proof as to the services performed by the various counsel. That matter also should be remitted to the Surrogate’s Court with directions to take proof establishing the character and extent of the services performed. (See Matter of Garloch, 252 App. Div. 419, 423 and Interstate Lien Corp. v. Family Service Soc. of Buffalo, 274 App. Div. 1026.) All concur. (Appeals from a decree which construes a will, and from a final order which makes allowances to various counsel.) Present — Taylor, P. J., MeCurn, Vaughan, Piper and Wheeler, JJ.