In re the Judicial Settlement of the Account of Proceedings of Fifth Avenue Bank

Appellate Division of the Supreme Court of New York

In re the Judicial Settlement of the Account of Proceedings of Fifth Avenue Bank

257 A.D. 972, 13 N.Y.S.2d 35, 1939 N.Y. App. Div. LEXIS 8744

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 12, 1939

StatusPublished

This text of 257 A.D. 972 (In re the Judicial Settlement of the Account of Proceedings of Fifth Avenue Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Judicial Settlement of the Account of Proceedings of Fifth Avenue Bank, 257 A.D. 972, 13 N.Y.S.2d 35, 1939 N.Y. App. Div. LEXIS 8744 (N.Y. Ct. App. 1939).

Pincite

Opinion

Decree of the Surrogate’s Court of Queens county settling the trustee’s accounts and directing payment to substituted trustees, etc., and order appointing trustees of the trust created by the Ninth paragraph of the will reversed on the law, without costs, and the matter remitted to the Surrogate’s Court to proceed on the application after notice to the Attorney-General. It appears that when a literal compliance with the terms of a will creating a charitable trust is impossible and the application of the cy pres doctrine is necessary, which in our opinion is the situation here, the Attorney-General should be given notice of the proceeding to construe the will. (Pers. Prop. Law, § 12, subd. 3; Rothschild v. Goldenberg, 58 App. Div. 499; Rothschild v. Goldenberg, 103 id. 235; Matter of Lyon, 173 id. 473; Ely v. Megie, 219 N. Y. 112; Matter of Swan, 237 App. Div. 454; Matter of Skuse, 165 Misc. 554; Informal Opinion of the Attorney-General, 51 State Dept. Rep. 295.) Carswell, Adel and Taylor, JJ., concur; Hagarty, J., concurs in result only, with the following memorandum: The trust for the benefit of members of a lodge of a fraternal organization, their wives and children, is not one for a general charitable or benevolent use which warrants the application of 'the cy pres doctrine. “ The purpose, whatever be its particular object, must benefit some indefinite class or portion of the public; for mere private charities are governed by the rules which apply to ordinary private express trusts.” (3 Pomeroy’s Equity Jurisprudence [4th ed.], § 1020, pp. 2268, 2269.) The trust fails because it violates the Statute of Perpetuities. Upon remission, the effect of the further provision of the will bequeathing the corpus to St. Luke’s Hospital and the alleged renunciation of the latter should be given further consideration in determining the ultimate disposition of the fund. Lazansky, P. J., dissents, with the following memorandum: The only matter properly before the court was the appointment of a trustee in place of St. Luke’s Hospital, which had renounced the trust. New trustees may be able to provide a bed in that institution. The trust is for a valid charitable use, since it confers a public benefit. (2 Bogert Trusts and Trustees, 1106; Matter of Skuse, 165 Misc. 554; Restatement of the Law of Trusts, §§ 368, 369, 372, 375; Roberts v. Corson, 79 N. H. 215; 107 A. 625.) The order and the decree, to the extent indicated, were properly made. The decree should be modified accordingly.

Free access — add to your briefcase to read the full text and ask questions with AI

Decree of the Surrogate’s Court of Queens county settling the trustee’s accounts and directing payment to substituted trustees, etc., and order appointing trustees of the trust created by the Ninth paragraph of the will reversed on the law, without costs, and the matter remitted to the Surrogate’s Court to proceed on the application after notice to the Attorney-General. It appears that when a literal compliance with the terms of a will creating a charitable trust is impossible and the application of the cy pres doctrine is necessary, which in our opinion is the situation here, the Attorney-General should be given notice of the proceeding to construe the will. (Pers. Prop. Law, § 12, subd. 3; Rothschild v. Goldenberg, 58 App. Div. 499; Rothschild v. Goldenberg, 103 id. 235; Matter of Lyon, 173 id. 473; Ely v. Megie, 219 N. Y. 112; Matter of Swan, 237 App. Div. 454; Matter of Skuse, 165 Misc. 554; Informal Opinion of the Attorney-General, 51 State Dept. Rep. 295.) Carswell, Adel and Taylor, JJ., concur; Hagarty, J., concurs in result only, with the following memorandum: The trust for the benefit of members of a lodge of a fraternal organization, their wives and children, is not one for a general charitable or benevolent use which warrants the application of 'the cy pres doctrine. “ The purpose, whatever be its particular object, must benefit some indefinite class or portion of the public; for mere private charities are governed by the rules which apply to ordinary private express trusts.” (3 Pomeroy’s Equity Jurisprudence [4th ed.], § 1020, pp. 2268, 2269.) The trust fails because it violates the Statute of Perpetuities. Upon remission, the effect of the further provision of the will bequeathing the corpus to St. Luke’s Hospital and the alleged renunciation of the latter should be given further consideration in determining the ultimate disposition of the fund. Lazansky, P. J., dissents, with the following memorandum: The only matter properly before the court was the appointment of a trustee in place of St. Luke’s Hospital, which had renounced the trust. New trustees may be able to provide a bed in that institution. The trust is for a valid charitable use, since it confers a public benefit. (2 Bogert Trusts and Trustees, 1106; Matter of Skuse, 165 Misc. 554; Restatement of the Law of Trusts, §§ 368, 369, 372, 375; Roberts v. Corson, 79 N. H. 215; 107 A. 625.) The order and the decree, to the extent indicated, were properly made. The decree should be modified accordingly.

Cite This Page — Counsel Stack

Bluebook (online)

257 A.D. 972, 13 N.Y.S.2d 35, 1939 N.Y. App. Div. LEXIS 8744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-account-of-proceedings-of-fifth-avenue-nyappdiv-1939.

Opinion

Related

Cite This Page — Counsel Stack