In re the Last Will & Testament & Codicils of Bertuch

225 A.D. 773

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1928
• Status: Published

Opinion

Order of the Surrogate’s Court of Suffolk county, made on the 10th day of September, 1928, denying the applications of appellants to direct the trustees to pay to them the principal sum bequeathed to each for the purchase of an annuity, reversed upon the law, without costs, and applications granted, without costs. Since the testamentary gift of an annuity must be regarded as a legacy of the definite sum required to purchase it (Matter of Cole, 174 App. Div. 534; affd., 219 N. Y. 435; Reid v. Brown, 54 Misc. 481), the subsequent provisions in the will that the direction to the executors and trustees to purchase the annuity shall be mandatory, and that the annuitants shall not be entitled to claim or accept direct payment in lieu of such annuity, are repugnant to the terms of absolute gift and of no effect. (Arden v. Goodacre, 11 C. B. 883; Stokes v. Cheek, 28 Beav. 620; Matter of Mabbett [Pitman v. Holborrow], L. R. [1891] 1 Ch. 707.) Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur. [132 Misc. 731.]