In re the Probate of the Last Will & Testament of O'Regan

7 Mills Surr. 123, 62 Misc. 592, 117 N.Y.S. 96

• Court: New York Surrogate's Court
• Decided: March 15, 1909
• Status: Published

Opinion

Ketcham, S.

In probate proceedings, construction is asked for the following clause of the will:

“ XI. I give1, devise and bequeath all the rest, residue and remainder of my estate of every nature and kind soever and wherever situated, unto my said Executors for their use and benefit. With a request to them, that a portion of said residue be used for Masses for the repose of my soul, and the balance given to some deserving charity.”

The will appoints two nephews as executors.

This gift was to the persons who were named as executors, and has the same effect as if it were made to them nominatim.

It was not for them in their capacity as executors. Indeed, as such, strictly, they have no capacity to administer it, and no flavor of a trust outside of their executorship is found.

That the gift was to them personally appears in its limitation! “ to their use and benefit.” The prayer that the residue shall be devoted to certain uses rests only upon the conscience of the legatees and does not impair the personal quality of their owner-

This interpretation, so far as it can affect the personal property, should he expressed in the decree of probate.

Decreed accordingly.