Opinion
June 28, 1943.
Present — Close, P.J., Hagarty, Carswell, Johnston and Taylor, JJ. [ 178 Misc. 401.]
In this proceeding to settle the account of respondent City Bank Farmers Trust Company, as trustee, and for the construction of paragraph "Sixth" of the will, it was properly decided that the bequest to respondent County of Miami, Ohio, for the charitable purposes set forth in the will was not void for remoteness of vesting nor as unlawfully suspending the power of alienation. Although a canon of construction, such as the so-called "divide and pay over rule" may be invoked to ascertain the undisclosed intention of a testator or to corroborate the finding of a particular intention on the part of the testator, it cannot be applied as a force to pervert an intention particularly expressed or obvious from a consideration of the will in its entirety. To apply such canon to the subject will would effectively vitiate the testator's expressed intention of benefiting the people of Miami County. The Surrogate correctly determined that the act of acceptance required of the voters of Miami County was intended by the testator to be a condition subsequent to the vesting of the gift in the County of Miami, which was competent to receive the same. The cases relied upon by appellants, in which acts of third parties or acts foreign to the gift were required, are not applicable to the present situation for the reason that those decisions necessarily rested upon findings that the respective testators did not intend that the bequests should vest until the happening of the particular conditions imposed. Decree of the Surrogate's Court of Kings County, insofar as appealed from, unanimously affirmed, with costs to all parties filing briefs, payable out of the estate.