
    LIVINGSTON v. GORDON.
    
      N. Y. Supreme Court, First Department ;
    
    
      Special Term, May, 1879.
    Construction op Will.—Legacy.—Condition.—Lapsing.—Void •for Uncertainty.
    A legacy to a benevolent society was on condition that the society maintained for life a certain person named and designated as then an inmate of its institution, with a provision that if, during Ms life, the society should cease to exist or maintain an institution suitable for the care of the blind, then the legacy should go to whatever society he should select, and which would maintain him, —Hein, that he had no right under any contingency to any part of the legacy or the income thereof, and before the happening of the event mentioned in the will could not select any other society to maintain him, so as to entitle it to the legacy.
    Also that his refusal to be maintained by the society, it being ready and willing, was not a breach of the condition.
    The fact that he was not an inmate of the society’s institution at the testator’s death will not cause the legacy to lapse.
    But the bequest to a society to be named by such person is void for vagueness and uncertainty.
    
    On a failure of the bequest, the amount of the legacy becomes a part of the residuary estate.
    Trial by the court.
    This action was brought by William S. Livingston, Jr., and another, as executors, &c., against William Gordon, Frances Livingston, The St. Joseph’s Home, and The Society for the Belief of Destitute Blind, to construe a provision of the will of Ernest L. McCrackan.
    This will was dated October 11, 1875, and Mr. McCrackan died in February, 1878.
    The provision of the will referred to is as follows: “ I give and devise to my executors the sum of thirty-two thousand dollars, in trust, to invest the same and pay the interest thereof, semi-annually, to the New York Home for the Blind, of 219 West 14th street, so long as that institution shall maintain and care for William Gordon, now an inmate of that institution ; and in case he shall be so cared for and maintained during the balance of his life, then in trust to pay the principal sum of said thirty-two thousand dollars to said institution. And- in case the said society shall cease to exist or to maintain an institution suitable for the care of the blind during the life of said William Gordon, then in trust to pay the income of said thirty-two thousand dollars to any other society that will maintain and care for said William Gordon, and which he may select, and to pay the principal of said thirty-two thousand dollars to such society as shall at the death of the said William Gordon be supporting and maintaining him.”
    At the date of the will William Gordon was an inmate of the institution maintained at 219 West 14th street, in the city of Hew York, by the defendant, the Society for the Belief of the Destitute Blind of the city of Hew York.
    In October, 1877, he was expelled for refusal to comply with some of its rules, and has never since been an inmate of the institution, and refuses to become an inmate thereof.
    On August 25,1878, after he became acquainted with the contents of the will, he selected the defendant, the St. Joseph’s Home, as the society or institution to care for and maintain him, and he has ever since been an inmate of the last named institution, and is cared for and maintained by it without compensation.
    The will in question was admitted to probate on May 28, 1878. In May, 1879, the defendant, the “ Society for the Belief of Destitute Blind,” having learned of the provisions of the will, informed Gordon that they were ready and willing to care for and maintain him at their institution, or elsewhere, during his life, in conformity with the requirements of the will.
    The following questions were presented for solution.
    “1. Whether the said defendant, The Society for the Belief of the Destitute Blind, of the city of Hew York and its vicinity, is the institution intended to be designated by the said Ernest L. McCrackan, by the name The New York Home for the Blind, of 219 West 14th street, as in said will and above set forth 1
    
    
      “2. Whether the entire devise of said sum does not fail by reason of the said William Gordon not being an inmate of the said Society for the .Belief of the Destitute Blind of the city of New York and its vicinity, at the time ’of the death of said Ernest L. McCrackan ?
    ‘ ‘ 3. Whether the devise to a society, to be named by said William Gordon, is not void for vagueness and uncertainty %
    
    “4. Whether the said William Gordon has any interest in the said fund of $32,000, or any right to any part of the same or the income thereof ?
    “5. Whether, in case the devise should fail, so far as the said Society for the Belief of the Destitute Blind of the city of New York and its vicinity is concerned, the income of the said fund is to be paid to the St. Joseph’s Home for the Aged, in case it should be selected by said William Gordon, or whether the said William Gordon has any right to alter the designation of the society to which said income shall be paid, from time to time, as he may choose %
    
    “ 6. Whether the principal of said fund, upon the death of the said William Gordon, is to be paid to any society in which said William Gordon may be then maintained and cared for ?
    “7. Whether, in the event of said devise failing, the said $32,000 does not fall into and become part of the residuary personal estate of said Ernest L. McCrackan ?”
    
      John M. Knox, for plaintiff.
    
      John E. Devlin, for The St. Joseph’s Home.
    
      Sidney S. Harris, for “The Society for the Belief of Destitute Blind.”
    - Jas. W. McDermott, for William Gordon.
    
      
      John M. Knox, for Frances Livingston.
    
    
      
       See also Stanton v. Miller, 58 N. Y. 192; rev’g 1 Sup'm Ct. (T. & C.) 23; S. C., 65 Barb. 58.
    
   Van Brunt, J.

It is evident that the “Society for the Relief of the Destitute Blind” in the city of New York was the institution referred to by the testator in his will.

The contingency by which, according to the terms of the will, any other society could obtain any share or interest in the legacy in question, is stated to be “in'case the said society shall cease to exist, or maintain an institution suitable for the care of the blind, during the life of the said William Gordon.” That this contingency has ever happened is not contended by any of the parties to this action. It is only upon the happening of this contingency that William Gordon was to have the right to máke any selection of any other institution or society, to maintain and care for him.

This proposition seems so plain that it needs no argument for its establishment, as the will is perfectly clear and explicit upon this point. It is also equally clear that the defendant Gordon has no right, under any contingency, to any part of the legacy, or the income thereof.

The more difficult question, however, is as to whether the legacy has lapsed, because Gordon at the death of the testator was not being maintained and cared for by the Society for the Relief of the Destitute Blind.

I see nothing in the terms of the will which requires the said institution to maintain and care for the said Gordon within its own walls; the use of the words in the will “ now an inmate of that institution ” being intended merely to designate the William Gordon. I do not think that it could possibly have been the intention of the testator, in case this institution had maintained and cared for Gordon during the greater part of his life, and Gordon had refused to be further maintained by them, that the society should lose the benefit of the legacy, which would be the case if the .language of the will is to be strictly construed.

Taking into consideration this fact, the object that the testator undoubtedly intended to attain (viz.: the maintenance of Gordon during the balance of his life), the fact that the testator intended to benefit the particular institution named in the will, which intention is undubitably shown by the circumstance that it was only in case the said society ceased to exist, or to maintain an institution suitable for the care of the blind, any other society could possibly participate in the legacy, it would seem to be the manifest intention of the testator to give this $32,000 to the said society, upon condition that they should maintain and care for during his life the said William Gordon.

If this was the case, and such was the intention of the testator, the legatee, after being informed of the legacy, had the option to accept it and perform the condition imposed, or reject it.

The society in question, upon being informed of the legacy, notified Gordon that they would maintain and care for him according to the terms of the will, and his refusal to be maintained by them cannot be held to be ■ a breach of the condition.

This interpretation would seem to carry out the intention of the testator, whereas any other would defeat every object which the testator desired to attain by the clause of his will in question. It follows, that the first, third and seventh of the questions presented must be answered in the affirmative, and the balance in the negative.

Judgment accordingly. 
      
       Sec also Betts v. Betts, 4 Abb. New Cas. 322, note.
      
     
      
       Compare Five Points House of Industry v. Amerman, 11 Hun, 161, rev’g Booth v. Cornell, 2 Redf. Surr. 261.
     
      
       For the interpretation of various other testamentary provisions for support, see Gilman v. Reddington, 24 N. Y. 9, affi’g 1 Hilt. 492; Downing v. Marshall, 4 Abb. Ct. App. Dec. 525; Thompson v. Carmichael, 3 Sandf. Ch. 120; Tolley v. Green, 2 Id. 91; King v. Woodhull, 3 Edw. 79; Van Veghten v. Van Veghten, 8 Paige, 104; Craig v. Craig, 3 Barb. Ch. 76; Brundage v. Foreign and Domestic Missionary Society, 60 Barb. 204; Moore v. Moore, 47 Id. 257; Magee v. Magee, 67 Id. 487; Camp v. Gifford, Id. 434; Ferris v. Purdy, 10 Johns. 359; Dresser v. Dresser, 35 Barb. 573; Rhodes v. Rhodes, 3 Sandf. Ch. 279.
      For a convenient clue to the scattered cases on contracts for support and maintenance, see Jackson v. Topping, 1 Wend. 388; Pool v. Pool, 1 Hill, 580; Hart v. Hart, 22 Barb. 606; 14 How. Pr. 418; Butler v. Tucker, 24 Wend. 447; Wetterwulgh v. Knickerbocker Building Association, 2 Bosw. 381; McKellip v. McKellip, 8 Barb. 552; Hawley v. Morton, 23 Id. 255; Loomis v. Loomis, 35 Id. 624; Merritt v. Seaman, 6 N. Y. 168; Stanton v. Miller, 1 Sup'm Ct. (T. & C.) 23, rev’d in 58 N. Y. 192; Schell v. Plumb, 55 N. Y. 592, affi’g 16 Abb. Pr. N. S. 19; Knapp v. Warner, 57 N. Y. 668; Mott v. Richtmeyer, 67 Id. 49; Dutcher v. Porter, 63 Barb. 15; Wetmore v. Jaffray, 9 Hun, 140; Green v. Green, 32 Ind. 276; Howe v. Howe, 10 N. H. 88; Keeler v. Baker, 1 Heisk (Tenn.), 639; Austin v. Austin, 9 Vt. 420; Bethlehem v. Annis, 4 N. H. 35; Shaffer v. Lee, 8 Barb. 412; Robinson v. Robinson, 9 Gray, 447; Welch v. Welch, 103 Mass. 562; Speers v. Sewell, 4 Bush. (Ky.) 239; Ackerman v. Ackerman, 24 N. J. Eq. 315; Thompson v. Stevens, 71 Pa. St. 161.
     