Opinion
April 1, 1938.
Present — Martin, P.J., O'Malley, Townley, Glennon and Untermyer, JJ.; Martin, P.J., and Untermyer, J., dissent; dissenting opinion by Untermyer, J.
Appeal from Surrogate's Court of Bronx County.
The decree, so far as appealed from, construes that portion of the last will and testament of James Collins, deceased, by which a legacy was left to "Children of St. Joseph's Hospital, 143rd Street and Brook Ave.," and adjudicates that said legacy lapsed and that as to his residuary estate the testator died intestate.
Decree, so far as appealed from, affirmed, with costs to the respondent Seymour payable out of the estate. No opinion.
Post, as special guardian of Katherine Collins, an infant, and Frank Collins,
I dissent from the affirmance of the decree of the surrogate, which results in nullifying the charitable intention of the testator. In executing that intention it should be our aim to effectuate rather than to frustrate the beneficent purposes of section 12 Pers. Prop. of the Personal Property Law. ( Matter of Durbrow, 245 N.Y. 469.) Section 12, in my opinion, is not limited, as the surrogate held, to instances where the bequest is in trust, but applies wherever there exists a "gift, grant or bequest" for charitable purposes. ( Sherman v. Richmond Hose Co., 230 N.Y. 462; Matter of Gary, 248 App. Div. 373; affd., 272 N.Y. 635.)
If St. Joseph's Hospital cannot administer this bequest in the manner contemplated by the will, then, under its cy pres power, the court should direct that it be applied to some other purpose which, as nearly as possible, will accomplish the intention of the testator. Although it is true that the amount here involved is not substantial, the principle to be decided may control the disposition of charitable bequests in future cases involving larger sums.
The decree should be reversed and the matter remitted to the surrogate to apply to the bequest the provisions of section 12 Pers. Prop. of the Personal Property Law.
Martin, P.J., concurs.