Purvey's Estate, In re

• Decision Date: 03 May 1962
• Parties: In re ESTATE of William J. PURVEY. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 180

229 N.Y.S.2d 180

34 Misc.2d 913

In re ESTATE of William J. PURVEY.

Surrogate's Court, New York County.

May 3, 1962.

John E. Christ, New York City, for petitioner Chemical Bank New York Trust Co., executor.

George W. Cornell, New York City, for respondent.

Mudge, Stern, Baldwin & Todd, New York City (John F. Brosnan and James W. Mason, New York City, of counsel), for respondents Seton Hospital Corporation and St. Joseph's Hospital, Yonkers.

Louis J. Lefkowitz, Atty. Gen. (Tony Berman, Asst. Atty. Gen., of counsel), for respondents, ultimate charitable beneficiaries.

Leo A. Larkin, Corporation Counsel, for respondent City of New York.

JOSEPH A. COX, Surrogate.

The testator bequeathed to his mother 'a life interest' in all of his property. The nature of this interest is more particularly defined by the testator's direction that his mother 'not have the power to dispose of any of my property but shall receive the income therefrom during the term of her natural life, the same to be paid to her by my Executor and Trustee, or Executors and Trustees hereinafter named, in quarter-annual payments each and every year during her lifetime.' The will contains the further direction that, upon the death of the testator's mother, 'the inccome or interest from my said estate I direct shall be and become the property of my brother JOSEPH PATRICK PURVEY, and to be paid to him in quarter-annual installments for his own personal use.'

The testator's mother predeceased him and the trustee asks whether the gift to the testator's brother of the income or interest from the estate is a bequest of a legal life estate or a bequest of trust income. If the testator intended to bequeath a life estate, the only duties of the trustee would have been in respect of the trust for the benefit of the testator's mother and, this trust not having come into existence, no occasion for the appointment of a trustee now would exist. Such a conclusion is not warranted from a reading of the will inasmuch as it clearly appears that the testator intended to create a primary trust for the benefit of his mother and a secondary trust for the benefit of his brother. The direction with regard to the mother's trust is that the income be paid to her by the executor and trustee and the direction with regard to the trust for the brother is that the income be paid to him in quarter-annual installments. Such directions contemplated the investment of principal by a trustee, the collection of income by a trustee and the payment over of net income by a trustee. These directions would have no application to a legal life estate. The intention of the testator in this respect is abundantly clear and the text of the will contains all the provisions essential to the creation of a testamentary trust namely, a fund, a beneficiary, a trustee and a disposition of the remainder (Brown v. Spohr, 180 N.Y. 201, 73 N.E. 14).

The record submitted to the court by stipulation of the parties provides the basis for a finding that any bequest directed by the will to be paid to Seton Hospital is payable to the corporation now known as The Seton Hospital Corporation and having its office at 127 South Broadway, Yonkers, N. Y. (Matter of Kearney's Estate, 199 Misc. 1085, 104 N.Y.S.2d 818; Matter of Bloch's Estate, 30 Misc.2d 959, 220 N.Y.S.2d 455).

The...