In re the Estate of Kane

New York Surrogate's Court

In re the Estate of Kane

162 Misc. 785, 295 N.Y.S. 671, 1937 N.Y. Misc. LEXIS 1688

DecidedApril 16, 1937

StatusPublished

This text of 162 Misc. 785 (In re the Estate of Kane) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Kane, 162 Misc. 785, 295 N.Y.S. 671, 1937 N.Y. Misc. LEXIS 1688 (N.Y. Super. Ct. 1937).

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Opinion

Henderson, S.

No objections to the account have been filed, but the executor seeks a construction of the following paragraph of the decedent’s will:

“ Second. I bequeath to my beloved niece, Catherine Wims, the sum of Twenty-five hundred ($2,500) Dollars, to be disposed of as I have orally requested her to do.”

The language is not ambiguous. Manifestly the testatrix did not intend to give her niece any beneficial interest in the legacy, except such part, if any, as was included in the oral request. It may be that when the decedent “ orally requested ” her desired disposition of the $2,500, her language was precatory. The language of her will, however, cannot be so construed. It is mandatory and bequeaths the specified sum to her niece for the sole purpose of its disposal in accordance with her wishes as orally expressed to her niece. In her will she gives her niece no discretion in the matter. If her niece takes at all, it must be as a trustee for the desired beneficiaries mentioned in such oral request. The legacy is not charitable. No beneficiary or beneficiaries of such disposition are designated. The attempted trust is void (Dec. Est. Law, § 16; Reynolds v. Reynolds, 224 N. Y. 429, 432), and the amount mentioned in the second paragraph passes under the residuary clause in the fourth paragraph.

The will is so construed.

Settle decree accordingly.

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Henderson, S.

No objections to the account have been filed, but the executor seeks a construction of the following paragraph of the decedent’s will:

“ Second. I bequeath to my beloved niece, Catherine Wims, the sum of Twenty-five hundred ($2,500) Dollars, to be disposed of as I have orally requested her to do.”

The language is not ambiguous. Manifestly the testatrix did not intend to give her niece any beneficial interest in the legacy, except such part, if any, as was included in the oral request. It may be that when the decedent “ orally requested ” her desired disposition of the $2,500, her language was precatory. The language of her will, however, cannot be so construed. It is mandatory and bequeaths the specified sum to her niece for the sole purpose of its disposal in accordance with her wishes as orally expressed to her niece. In her will she gives her niece no discretion in the matter. If her niece takes at all, it must be as a trustee for the desired beneficiaries mentioned in such oral request. The legacy is not charitable. No beneficiary or beneficiaries of such disposition are designated. The attempted trust is void (Dec. Est. Law, § 16; Reynolds v. Reynolds, 224 N. Y. 429, 432), and the amount mentioned in the second paragraph passes under the residuary clause in the fourth paragraph.

The will is so construed.

Settle decree accordingly.

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162 Misc. 785, 295 N.Y.S. 671, 1937 N.Y. Misc. LEXIS 1688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-kane-nysurct-1937.

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