Opinion
Argued October 4, 1937
Decided November 23, 1937
Appeal from the Supreme Court, Appellate Division, Third Department.
G. Burchard Smith for appellant.
Charles L. Hoey, W.P. Butler and Charles F. King for Albert C. Wilson, respondent.
The construction of the ninth paragraph of Alice E. Wilson's will is involved in this appeal. It provides: "I give and bequeath to the Minister's and Missionary Benefit Board of the Northern Baptist Convention, New York City, sum of $2,000 as an annuity, the income from same to be paid to my brother Albert C. Wilson during his lifetime." Prior to the execution of this will, correspondence occurred between Miss Wilson and the Ministers and Missionaries Benefit Board, in the course of which the secretary of the board wrote: "Loved ones of course should be remembered. And Christ and His cause should share with others in direct bequests. You may also make the same bequest benefit a loved one for life, and, provide for a definite Christian service thereafter each year in perpetuity. * * * That which is left to this Board by Will or otherwise is never lost. Therefore, many people are specifying in addition to direct bequests, that certain other bequests shall be used at their decease to secure Annuity Bonds from this Board in favor of relatives or friends. Those so remembered receive generous incomes for life without danger of loss. The principal is kept intact as an Endowment Fund, and, after the decease of the one remembered the full principal sum continued to bear interest for the cause of Christ. It is true benevolence to give income to loved ones rather than responsibility. * * * It is the settled policy of the Ministers and Missionaries Benefit Board to place in Permanent Funds the total principal sums given on the Annuity Plan. A high annuity rate is paid for life and then, the full original amount continues to bear interest for the benefit of our Baptist Ministry. Thus your life is projected into the future in a gracious Christian service. * * * Perhaps you can help us. Many have made Wills remembering this cause. Some of them possess very little, but they are happy that they can make even small bequests which will be placed in permanent funds bearing their names. The income will be used forever to provide the necessities of life for our aged ministers and missionaries. * * * Some must make provision for loved ones by Will. In such cases a bequest may be made to this Board with the understanding that an annuity will be paid for life, to a son or daughter, or to husband or wife or friend."
The courts below have held that the ninth clause of the will directs the purchase of an annuity for the sole benefit of the brother without any valid gift over and that, therefore, he has the right to elect to take the capital sum instead of having it invested for the purpose of purchasing an annuity. As we interpret the language of that clause, the bequest is to the Board subject to payment of an annual income to the brother during his lifetime. We think such an intent was clearly expressed.
The orders should be reversed, without costs.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Orders reversed.