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In re the Accounting of Rieg

Appellate Division of the Supreme Court of New York, First Department
May 25, 1967
28 A.D.2d 530 (N.Y. App. Div. 1967)

Opinion

May 25, 1967


Decree of Surrogate's Court, Bronx County, unanimously reversed, on the law, and no effective disposition having been achieved by subdivision (b) of Article Seventeenth of the will, that portion of the will is directed to be distributed as in intestacy, with $50 costs and disbursements to all parties filing briefs, payable out of the estate. All of the internal evidence in the will abundantly demonstrates that the intention of the testatrix was to take care of her relatives and close friends. The persons named by her for bequests or benefits had a natural or an understandable claim to her bounty. There is little or nothing in the will's language that would support a conclusion she (the testatrix) ever had in mind the creation of a trust for charitable purposes as it is known in the law. In the instances wherein she did make bequests of a charitable nature she delineated the objects with a meticulous accuracy. Further, extrinsic evidence was admissible to establish testamentary intent. The document known as Exhibit "A" was admissible for that purpose, although it could not, as the Surrogate ruled, be incorporated by reference into the will. Nor was the exhibit to be excluded because it emanated from an ostensibly interested source. Actually, the statement, admissible as to intent, would have militated against the interest of the coexecutor, and was within the rule followed in Matter of Comfort ( 203 Misc. 669). The internal and the extrinsic evidence indicate an intent to create a trust for particular individuals. This having failed, the trust falls.

Concur — Stevens, J.P., Steuer, Tilzer, McNally and McGivern, JJ.


Summaries of

In re the Accounting of Rieg

Appellate Division of the Supreme Court of New York, First Department
May 25, 1967
28 A.D.2d 530 (N.Y. App. Div. 1967)
Case details for

In re the Accounting of Rieg

Case Details

Full title:In the Matter of the Accounting of WILHELMINE RIEG et al., as Executors of…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 25, 1967

Citations

28 A.D.2d 530 (N.Y. App. Div. 1967)