Opinion
April 10, 1940.
Paul J. Batt [ Howard J. Van Nortwick of counsel], for the Abbey of Munsterschwarzach.
Matthew A. Tiffany, for the executor.
W. Franklin Ness, Jr., special guardian for unknown persons.
The deceased left a last will and testament providing, among other things:
" Sixth. I give and bequeath to the `Abtei der Benediktener-Missionare,' Munsterschwarzach bei Kitzingen am Main, Bavaria, Germany, the sum of Five thousand Dollars ($5,000.00) to establish a permanent fund for the education of candidates for the missionary priesthood."
It is the duty of the surrogate to see to it that the intention of the deceased is carried out in so far as he can. Under the conditions existing in Germany at this time and with the antagonism of the Hitler regime toward religious denominations, it is possible that a large part of this legacy will not be used for the purpose intended by the testator should the money be sent there.
Proof has been presented that a German branch of the Order of St. Benedict is maintained at Schuyler, Neb., and is known as the Mission Home, and that by directing the payment of this legacy to this branch of the order a permanent fund for the education of candidates for the missionary priesthood can be established which was and is the purpose of the giving of the bequest, thus leaving the money in the United States of America where it can be invested more safely and assuring the education of the young men at the Abbey of Munsterschwarzach.
I, therefore, decree that this legacy be paid to the Mission Home of the Order of St. Benedict at Schuyler, Neb., and in doing so I feel I am exercising reasonable prudence in the furtherance of justice and equity.