Opinion
February 1, 1961
Lawrence Cohen for Chemical Bank New York Trust Company, petitioner.
Nordlinger, Riegelman, Benetar Charney for Mae D. Schleimer, as general guardian for Mark Schleimer and others, infants, respondent.
Arnold Katz for Jewish Child Care Association of New York, respondent.
Stroock Stroock Lavan for Montefiore Hospital for Chronic Diseases, respondent.
Weisman, Celler, Allan, Spett Sheinberg for Home Hospital of the Daughters of Jacob, respondent.
Austrian, Lance Stewart for Federation of Jewish Philanthropies of New York and another, respondents.
Louis J. Lefkowitz, Attorney-General ( Tony Berman of counsel), for ultimate charitable beneficiaries, respondent.
In this accounting proceeding a question of construction arises which involves the validity of a legacy of $2,500 of the remainder of the residuary trust to the Children's Haven of Far Rockaway, New York. The testator died in 1942. The legatee, a membership corporation, which was one of the objects of his generous bounty was dissolved in 1952. The trust terminated at the death of the life beneficiary in 1959. The general guardian for infant remaindermen argues that the dissolution of the Children's Haven brought about a lapse of its share of the remainder and that the bequest passes to her wards as part of the general legacy of principal pursuant to Paragraph Second, subdivision (j). It is the position of the general guardian that subdivision 14 of section 57 of the Membership Corporations Law operates to defeat this gift to a dissolved corporation. This statute has no application to this case, since a contingent gift is not involved. It is plain that the bequest to the Children's Haven of Far Rockaway vested in that corporation on the decedent's death. The charitable organization was then in existence and was not dissolved until 10 years thereafter. The gift to it of $2,500 of the remainder was absolute. This will contains nothing indicating a conditional limitation. The court finds that this gift vested at the testator's death and that there can now be no lapse as to same. ( Matter of Scott, 1 Misc.2d 206; Matter of Clark, 1 Misc.2d 869; Matter of Bowne, 11 Misc.2d 597; Sherman v. Richmond Hose Co. No. 2, 230 N.Y. 462; Matter of Ablett, 3 N.Y.2d 261.)
The cy pres power of the court will be invoked in order to prevent the general charitable purpose of the testator from being defeated by the change in condition that has resulted since his death. Accordingly, it is held that the $2,500 bequest of the remainder of the residuary trust vested in the Children's Haven of Far Rockaway, New York, but passes subject to the operation of section 12 Pers. Prop. of the Personal Property Law because of the dissolution of the designated legatee.
The court will confer with counsel at 12:00 M. on March 9, 1961, with a view toward selecting as the recipient of said bequest, an orphanage which will most clearly give effect to the intention of the testator.