Opinion
August 12, 1959
Frank P. Giaramita for petitioner.
Fink Pavia for Antonio Di Dia.
In this executor's accounting a construction is sought of article "Eighth" of the will and declaring the legacies provided therein abated in favor of the alternative legatee.
By the terms of said article one half of the residuary is bequeathed to each of the two named legatees in trust "to be paid over to them at such time as they emigrate to the United States to become residents." It provides further for an abatement in favor of a son in the event of the lapse of five years without the condition being conformed with by the legatees. One may impose conditions to a gift providing the purposes are not unlawful or against public policy ( Matter of Engelking, 185 Misc. 866; Oliver v. Wells, 254 N.Y. 451; Matter of Liberman, 279 N.Y. 458). The court construes the condition in question as not being unlawful or against public policy. Inasmuch as more than five years have elapsed and the said two named legatees have failed to come to the United States and establish residence, the legacies to them have abated in favor of the alternative legatee, Antonio Di Dia. The account will be settled as filed.
Settle decree on notice.