Opinion
December 14, 1995
Appeal from the Surrogate's Court, New York County (Eve Preminger, S.).
We agree with the Surrogate that notwithstanding the clearly precatory language used by the testator in "suggest[ing]" to her residuary beneficiaries that they use their legacies "to support and further the purposes of organizations and movements" with which she had been identified, an issue of fact exists as to whether the bequests were induced by the beneficiaries' promises to donate their legacies to the Communist Party. A high ranking member of petitioner Communist Party asserted that the decedent, in making absolute bequests to "trustworthy" Party members, was simply following his advice on Party procedures for avoiding the Party's incapacity, as an unincorporated association, from taking directly under a will, in accordance with the letter sent by appellant himself, a former member of the Communist Party. Accordingly, there are triable issues of fact as to whether a constructive trust should be imposed ( Trustees of Amherst Coll. v Ritch, 151 N.Y. 282, 323-325; Tebin v Moldock, 19 A.D.2d 275, 284-285; see generally, Simonds v Simonds, 45 N.Y.2d 233, 241).
Concur — Ellerin, J.P., Ross, Nardelli, Williams and Mazzarelli, JJ.