In the Matter of the Probate of the Last Will and Testament of Almira Ingersoll, Deceased

In the Matter of the Probate of the Last Will and Testament of Almira Ingersoll, Deceased. (Submitted January 22, 1892; decided February 9, 1892.) A clause in the will of L, after stating that she desired to leave some of her estate “to promote certain religious purposes,” authorized and empowered her executor “ to expend, .through the agency of the Baptist. Church and its various societies * * * such sum as he may deem best, not to exceed $1,000,” continuing as follows: “In order that my executor may be enabled to do so without hindrance, I give and bequeath to him said sum * * * to him and his heirs and assigns forever for the uses and purposes before stated, and I rely on him to carry out the wishes and purposes that I have hereinbefore indicated.” Held, that this was not merely an unconditional gift to the executor, but that the clause attempted to create a trust, which was void for uncertainty. Matter of Ingersoll (59 Hun, 571), reversed. Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made April 16,1891, which reversed a decree of the surrogate of Cattaraugus county, admitting to probate the will of Almira Ingersoll, deceased, except as to the eighth clause thereof, and declaring said clause void for uncertainty and indefiniteness, and remitted the case to said surrogate to enter a decree admitting the whole will to probate. The eighth clause of said will is as follows: “ I am desirous of leaving some of my estate to aid in carrying on the work of the Christian ministry and to uphold the doctrine and faith of the Bible, and to aid in extending the Christian religion in the world through the instrumentality of the preaching of the Gospel of Christ, and desirous of promoting these purposes, I do hereby authorize and empower my executor, hereinafter named, to expend through the agency of the Baptist Church and its various societies, missionary and educational, or in such other way through the said church or its organizations, as shall be deemed best likely to promote these purposes, such sum as he may deem best, not to exceed one thousand dollars; and in order that my executor may be enabled to do so without hindrance, I give and bequeath to ¡him the said sum of one thousand dollars, and the same is to him and his heirs and assigns forever, for the uses and purposes before stated, and I rely upon him to carry out the wishes and purposes that I have hereinbefore indicated, and that those interested in my estate will co-operate in carrying •on the work that I, by this bequest,- desire to promote.” The following is the opinion in full: “We think the judgment of the General Term herein should be reversed and the decree of the surrogate affirmed. “ The eighth clause of the will, we have no doubt, creates a trust, and does not make an unconditional gift of money to the executor, which he could dispose of as he thought fit. The language is not merely precatory. It is clear, distinct and certain,, and it gives the money to the executor “for the uses and purposes ” named in the clause. Those uses and purposes cannot be carried out. What follows that language is simply a written statement of what is implied in every gift to a trustee, viz., that the donor relies upon the trustee to carry out his wishes. “ It is unnecessary to say more in this case than that we agree generally in the views expressed in the dissenting opinion of Mr. Justice Macomber at the General Term upon this point, while expressing no opinion upon the question therein also discussed, whether in any aspect the gift violates the ■statute in regard to bequests to charitable societies as made within two months before the death of the testator. “ The judgment of the General Term should be reversed ■and the decree of the surrogate affirmed, with costs of both parties payable out of the estate.” Fred. J. Blackman for appellants. Thrasher & Leonard for respondent. [MAJORITY — Per Curiam] Per Curiam mem. for reversal All concur. Judgment reversed.