Michaels' Estate, In re

• Decision Date: 07 June 1957
• Citation: 7 Misc.2d 439,165 N.Y.S.2d 234
• Parties: In re ESTATE of Jacob H. MICHAELS. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 234

165 N.Y.S.2d 234

7 Misc.2d 439

In re ESTATE of Jacob H. MICHAELS.

Surrogate's Court, New York County.

June 7, 1957.

Lewis, Rassner & Bermas, Brooklyn, for Oscar A. Lewis and Hanover Bank, trustees, petitioners.

Henry Woog, New York City, for Dina Reichenberg and Sidney Reichenberg, respondents.

Moses & Singer, New York City, for Henry L. Moses and Robert M. Harriss, executors of last will and testament of Menos Gregory, deceased, respondents.

Tachna, Pinkussohn & Bauman, New York City, for Ann G. Pinkussohn and Jack F. Greene, respondents.

Louis J. Lefkowitz, Atty. Gen. (Julius Greenfield, Asst. Atty. Gen., of counsel), for indefinite and ultimate charitable beneficiaries, respondents.

Carson DeWitt Baker, Sp. Guardian, New York City, for James Pinkussohn and others, infants, respondents.

DI FALCO, Surrogate.

The remainder of the trust which is the subject of the present accounting proceeding, is bequeathed in various amounts in eleven paragraphs of article eighth of the will. Paragraph seventh reads: 'To Dr. Menos Gregory, the sum of Two Thousand ($2,000) Dollars, to be distributed by him among educational institutions and charities in the City of New York, in such amounts and in such manner as he in his uncontrolled discretion shall deem to be in conformity with my ideals and principles, of which he has knowledge, concerning gifts and donations for educational and charitable purposes.' Dr. Gregory survived the decedent but predeceased the life beneficiary of the trust. The court is asked to determine whether the trust shall be executed cy pres, as the Attorney General contends, or the specified sum passes under the gift of the balance of the fund in paragraph eleventh, as the special guardian and the beneficiaries under that paragraph argue.

All parties are in agreement that Dr. Gregory was intended to take in a fiduciary capacity, and not individually. The executors under his will suggest turning over the funds to them, but they offer the suggestion as a means of carrying out the testator's intention, because they say that they also are familiar with the testator's ideals and principles concerning educational and charitable gifts. The court is in accord with the parties in construing the gift to Dr. Gregory as a gift in trust.

The court holds that the gift is a valid gift in trust for charitable and educational uses. Matter of Durbrow's Estate, 245 N.Y. 469, 157 N.E. 747; Matter of Cunningham's Will, 206 N.Y. 601, 100 N.E. 437; Matter of Cohen's Estate, Sur., 58 N.Y.S.2d 924; Matter of Murray's Estate, 198 Misc. 45, 99 N.Y.S.2d 32; 3 Page on Wills, § 1232; 4 Scott on Trusts, 2nd ed., § 396; Restatement of Trusts, § 396. The fact that the trustee is clothed with a broad discretion in selecting the beneficiaries does not render the trust invalid or unenforceable. In cases where the named trustee is living and capable of executing the trust, the test of validity is whether the discretion granted to him is so great and the purpose of the testator is so indefinite that equity cannot define and enforce the trust. 'Broadness of scope and generality of purpose do not in themselves breed impossibility of execution. * * * Although a wide diversity of judicial opinion exists as to the meaning which should be given to the words 'indefiniteness of purpose' in this connection * * *, a rule of generous construction manifests itself in the more recent decisions * * *.' Matter of Durbrow's Estate, supra, 245 N.Y. at pages 475, 476, 157 N.E. at page 749.

The very nature of a gift to a charitable or educational institution for the aid of worthy and needy persons admits of a much greater freedom of choice in the trustee than does a gift for private uses. Frequently a testator makes the general decision to devote a portion of his funds to charitable uses before he considers the matter of actual allocation among particular institutions. Necessarily a period of time must elapse between the making of his will and the actual distribution of the funds, and where, as here, a trust administration intervenes, the period is appreciably longer. Needs and resources of particular institutions may very well change in the period. The use of the funds in works of charity can be more effectively directed immediately before their disbursement, in the light of presently existing conditions and needs. Hence a testator often is content merely to outline in broad terms the field of his choice and to leave the selection of beneficiaries to the one who is in a position to judge present needs and merits.

The charitable purpose of the testator will not be trustrated by expressions in his will which reflect his confidence that the named trustee is so familiar with the testator's principles and predilections and his loyalty is so far beyond question that the allocation of the funds will be substantially the same as if the testator had himself distributed them. It is to be expected that he would choose someone sympathetic with his ideas and worthy of his trust. Even where the will reveals that the testator had consulted with his trustee, the courts have upheld the trust. In Matter of Groot's Estate, 173 App.Div. 436, 159 N.Y.S. 1003, 1005, affirmed 226 N.Y. 576, 123 N.E. 867, the grant of discretion to the trustee to distribute the residue to worthy charities was qualified by the words 'he having been fully advised of my purposes and inclinations...