In re the Probate of the Will of Murray

New York Surrogate's Court

In re the Probate of the Will of Murray

2 Mills Surr. 141, 34 Misc. 39, 69 N.Y.S. 491

CourtNew York Surrogate's Court

DecidedFebruary 15, 1901

StatusPublished

Cited by1 cases

This text of 2 Mills Surr. 141 (In re the Probate of the Will of Murray) 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.

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In re the Probate of the Will of Murray, 2 Mills Surr. 141, 34 Misc. 39, 69 N.Y.S. 491 (N.Y. Super. Ct. 1901).

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Opinion

Thomas, S.

— Jn the proceeding to prove the will of the deceased, the validity of the residuary clause is asked to be determined. This clause is in the following words: “ Eleventh. All the rest, residue and remainder of my estate I give, devise and bequeath to my executor in trust to invest, keep invested and pay the principal and income thereof towards the purchase of a plot in Calvary, or other cemetery, Calvary being my choice, and to the erection of. a monument and the care of said plot and monument as my said executor may see fit to make payments therefor.” By this provision the testatrix attempted to create a trust which should bind her residuary estate for an indefinite perior of time, not measured by any specified lives, and for a purpose not religious, educational, charitable or bene? volent, for the benefit of indefinite unknown persons who might be employed by her executor or his successor at his discretion. Such a trust is void. Holland v. Alcock, 108 N. Y. 312; Matter of Raab, 42 App. Div. 141; Allen v. Stevens, 161 N. Y. 122. It is not a direction to the executor concerning the expenditure of a specified sum of money for an interment of a kind approved by the decedent, and in accordance with her means, and so not within Matter of Fraser, 92 N. Y. 239. The executor will, of course, be charged with a duty to attend to the proper interment of the testatrix, but the clause in question is not divisible into parts, and is entirely void.

Decreed accordingly.

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Thomas, S.

— Jn the proceeding to prove the will of the deceased, the validity of the residuary clause is asked to be determined. This clause is in the following words: “ Eleventh. All the rest, residue and remainder of my estate I give, devise and bequeath to my executor in trust to invest, keep invested and pay the principal and income thereof towards the purchase of a plot in Calvary, or other cemetery, Calvary being my choice, and to the erection of. a monument and the care of said plot and monument as my said executor may see fit to make payments therefor.” By this provision the testatrix attempted to create a trust which should bind her residuary estate for an indefinite perior of time, not measured by any specified lives, and for a purpose not religious, educational, charitable or bene? volent, for the benefit of indefinite unknown persons who might be employed by her executor or his successor at his discretion. Such a trust is void. Holland v. Alcock, 108 N. Y. 312; Matter of Raab, 42 App. Div. 141; Allen v. Stevens, 161 N. Y. 122. It is not a direction to the executor concerning the expenditure of a specified sum of money for an interment of a kind approved by the decedent, and in accordance with her means, and so not within Matter of Fraser, 92 N. Y. 239. The executor will, of course, be charged with a duty to attend to the proper interment of the testatrix, but the clause in question is not divisible into parts, and is entirely void.

Decreed accordingly.

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2 Mills Surr. 141, 34 Misc. 39, 69 N.Y.S. 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-murray-nysurct-1901.

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