
    In the Matter of the Estate of D. Leo Gimbel, Deceased.
    Surrogate’s Court, New York County,
    May 29, 1943.
    
      Barr & Barr and Myers, Goldsmith & Behr for Solo Blank, as administrator c. t. a., petitioner.
    
      Louis P. Neustein for Annette G. Strome, respondent.
    
      Grace Kelly Santo, special guardian for Carol Blank and others, infants.
   Foley, S.

By prior decision herein (N. Y. L. J., May 12, 1943, p. 1857) there was reserved for subsequent determination the construction of the codicil to the will. The provision to be construed reads as follows ;“I hereby give, devise and bequeath to my friend, Annette Guerlaine Strome, in appreciation of her many kindnesses and attentions to me, the sum of One hundred dollars ($100) a month for and during her life so long as she shall remain unmarried. Upon the marriage of the said Annette Guerlaine Strome or upon her death, whichever shall first occur, this provision and the payment thereunder shall wholly cease and terminate.”

The question presented is whether the provision in the codicil for payment of the monthly sums to the annuitant1‘ during her life so long as she shall remain unmarried ” is a limitation of payment until marriage or a condition in restraint of marriage. If it is a limitation, it is valid; if it is a condition in restraint of marriage, it is void and the annuitant would be entitled to the monthly payments for the duration of her life, free of any restraint upon her marriage at any future time.

By his will the testator left his entire estate to his sister, Cora Gimbel Groskin, with payment thereof to his niece, Dorothy Groskin Blank, if his sister should predecease him. By the first codicil to his will he specifically bequeathed all of his jewelry to a cousin. No other bequests than those mentioned were made by the testator either in his will or in his codicils.

It is contended by the annuitant that the testator attempted to impose a condition upon the gift which was in general restraint of marriage. If such were the purpose of the testator her contention would be correct because the law of this State still regards a condition which is calculated to induce a beneficiary to live in celibacy or adultery as a condition in general restraint of marriage and,, therefore, void, because contrary to public policy. (Matter of Liberman, 279 N. Y. 458; Matter of Seaman, 218 N. Y. 77, 81.)

I can find no intent, however, on the part of the testator to discourage the annuitant from marrying or to influence her to refrain from marrying or to impose any restraint whatsoever upon marriage. Bather is there indication here of intent to make the annuity payments during her lifetime while she remains in single status, with no thought of preventing marriage or promoting celibacy. As was said by the court in Matter of Hughes (225 App. Div. 29, affd. 251 N. Y. 529): “ An inference that one is moved by an improper or unlawful motive should never be drawn where a legitimate purpose is just as apparent.”

The annuitant at the date of testator’s death was a young woman about thirty-two years of age and unrelated by blood to him. He described her in the codicil as “ my friend.” He was. under no legal or moral duty arising either out of a marital or parental status or out of a blood relationship to provide for her maintenance and support. His gift to her was intended merely as a benefaction in appreciation of her many kindnesses and attentions ” to him. Undoubtedly it was his plan to help her support herself during her lifetime so long as she remained a single woman and until the obligation for her legal support became that of a husband whom she might marry. To that extent only did he permit the entire estate, which he bequeathed by his will to his sister, his sole next of kin, to be charged with the payment of the annuity to her. To that extent also did he fix the value of her “ many kindnesses and attentions ” to him.

I accordingly hold that the provision during her life so long as she shall remain unmarried ” is one of limitation which fixed the period during which the payments of the annuity were to be made and did not impose an unreasonable or illegal condition in restraint of marriage. Support for this conclusion may be found in the authorities of this State where similar provisions in wills have been construed as limitations and not conditions intended to be in general restraint of marriage, (Irwin v. Irwin, 179 App. Div. 871; Matter of Horton, 160 Misc. 64; see, also, Robinson v. Martin, 200 N. Y. 159.) The provision is, therefore, valid. Since the testator here has created a common-law annuity which is not payable out of the income of a trust but is a direct charge upon the whole estate bequeathed to his sister, upon the marriage of the annuitant or upon her death, whichever event shall first occur, the payments must cease and the estate will then be freed from its charge.

In my previous decision I directed the setting aside of the fund for the payment of the annuity. The decree, settling the account, may be submitted, on notice, in accordance with both decisions of the Surrogate.  