Unger v. Loewy

• Decision Date: 29 May 1923
• Citation: 140 N.E. 201,236 N.Y. 73
• Parties: UNGER et al. v. LOEWY et al.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 73

140 N.E. 201

UNGER et al.

v.LOEWY et al.

Court of Appeals of New York.

May 29, 1923.

Action by Henry W. Unger and another, as surviving executors of and trustees under the will of Benno Loewy, deceased, against Isabella Loewy and others. From judgment of the Appellate Division (202 App. Div. 213,195 N. Y. Supp. 582), reversing in part and affirming in part judgment of Special Term (116 Misc. Rep. 628,191 N. Y. Supp. 38) construing the will, defendant Cornell University appeals.

Judgment of Appellate Division reversed, and that of Special Term modified, and as so modified affirmed.

Appeal from Supreme Court, Appellate Division, First department.

Henry W. Sackett and Stanley D. Brown, both of New York City, for appellant.

Isidor Wels and Charles A. Strauss, both of New York City, for plaintiffs respondents.

Alfred D. Lind, Leonard Klein, and Norman L. Marks, all of New York City, for respondent Isabella Loewy.

John E. Roeser, of New York City, for respondents Ida Goldberger and others.

ANDREWS, J.

By his last will Benno Loewy divided his property into two parts. One consisted of a library apparently of considerable value, which he wished to maintain intact. The other part consisted of real and personal property which he devised and bequeathed to his executors in trust, with directions to sell the same, invest the proceeds, and pay the income for life to his wife, Isabella Loewy. This provision was stated to be in lieu of dower. As to the library he directed his executors to deliver it to Cornell University, under a contract by which the University covenanted to maintain it as a separate collection under the name of the Benno Loewy Library, itself providing for all expenses of maintenance. The contract was also to provide that, after Mrs. Loewy's death, the University should receive the balance of his estate under the agreement that the income should be used for the purchase of books to be added to the library, and for its extension and increase. Should Cornell University refuse to accept the library and the remainder under these conditions, it was to be offered first to Johns Hopkins University, next to Leland Stanford, Jr., University, and, if refused by both, to some other educational institution chosen by the executors. The testator left him surviving his widow and at least two cousins.

This action was brought by the executors and trustees to obtain a judgment as to the validity and construction of this will. The trial judge held that the provisions as to the library and as to the remainder were in effect a bequest to Cornell University, or to such other institution as might accept the gift, burdened with the conditions imposed. None of the parties to the action seem to question this result. He also held that the three institutions named came within the provisions of section 17 of the Decedent Estate Law (Consol. Laws, c. 13), and that therefore Mr. Loewy, leaving a widow, might not bequeath or devise to them more than half of his estate after the payment of his debts. He further held that Mrs. Loewy was not entitled to dower, and that the gift to the educational institutions constituted more than one-half of the estate of the deceased and was valid to the extent of that one-half and no more.

From his decision various appeals were taken. Mrs. Loewy and the two cousins of the deceased claimed intestacy as to the entire estate except as to the provision for the widow. Cornell University and John Hopkins University asserted that they were not such corporations as were defined by section 17 of the Decedent Estate Law and therefore were entitled to the entire estate. They each, and Mrs. Loewy also, appealed from the conclusion that the widow was not entitled to dower.

The Appellate Division affirmed the judgmentas to the meaning of section 17 of the Decedent Estate Law, but held that, because of the resulting diminution of the fund intended by the testator to increase and maintain the library, his main purpose in making a gift of the library failed. Therefore his gift to the educational institutions became inoperative and void. As to all of his property included in such gifts the testator died intestate, and his widow was entitled to receive all his personal estate, and his heirs at law all his real estate, subject to the right of dower therein of his widow. From the judgment of the Appellate Division, Cornell University alone appeals to this court.

[1] We agree with the courts below that Cornell University and the other institutions mentioned come within the provisions of the Decedent Estate Law to which reference has been made. Trustees of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876,37 L. R. A. 305;Robb v. Washington & Jefferson College, 185 N. Y. 485, 78 N. E. 359;Butterworth v. Keeler, 219 N. Y. 446, 114 N. E. 803. The deceased may not bequeath to them, therefore, more than one-half of his estate after the payment of his debts.

[2] As to the dower of the widow, s...