
    In the Matter of the Judicial Settlement of the Account of James Keenan and Others, as Executors, etc., of Owen Nolan, Deceased, Respondents. Reverend James S. Duffy, Appellant; Nellie Nolan, Respondent.
    
      Will — one legacy “lobe expended by him (the legatee) as I ham instnicted him ” and another, to the same legatee, ‘ 'for his personal use ” — the foe'mer is invalid as a trust and cannot be sustained as an individual bequest.
    
    The 10th and 17th clauses of the will of a testator provided as follows:
    “ Tenth. I give and bequeath to my friend Rev. James S. Duffy, the sum of Five thousand ($5,000.00) dollars, to be expended by him, as I have instructed him during my lifetime. * * *
    “ Seventeenth. I give and bequeath to my friend Rev. James S. Duffy, for his personal, use the sum of One thousand ($1,000.00) dollars.”
    
      Held, that the 10th clause of the will was invalid;
    That it could not be sustained as a trust;
    That it could not be sustained as an individual bequest to the person named therein, because the 17th clause of the will, in which the testator gave the same person $1,000 “ for his personal use ” negatived the idea that the testator intended that the previous bequest of $5,000 should, under any circumstances, be applied to the personal use of the same individual. in said Surrogate’s Court on the 6th day of May, 1904, as adjudges the bequest, to the appellant in the 10th paragraph of the will to be illegal and void.
    
      Appeal by Reverend James S. Duffy, one of the legatees. under the last will and testament of Owen Nolan, deceased, from so much of a decree of the Surrogate’s Court of the county of Kings, entered
    
      
      Herbert T. Ketcham [Joseph E. Owens with him on the brief], for the appellant. ,
    
      William H. Stryker, for the executors, respondents.
    
      William F. Hagarty, special guardian for Nellie Nolan, respondent.
   Willard Bartlett, J.:

This appeal calls for the construction of the 10th and 17th paragraphs o£ the will of Owen Nolan, deceased. Those paragraphs read as follows:

Tenth. I give and bequeath to my friend Rev. James S. Duffy, the sum of Five thousand ($5,000.00) dollars, to be expended by him, as I have instructed him during my lifetime. * * *
“Seventeenth. I give and bequeath to my friend Rev. James S. Duffy, for his personal use the sum of One thousand ($1,000.00) dollars.”

The learned surrogate has held that the 10th paragraph is invalid because, while the bequest partakes of the general nature of a trust, the necessary requirements of a trust are not stated. He has also declined to sustain it as an individual bequest because the 17th clause, giving the same legatee $1,000 “ for his personal use,” indicates that the bequest of $5,000 in the 10th paragraph could not have been intended to go to the appellant individually. The case of Gross v Moore (68 Hun, 412) is cited in support of these conclusions.

That case is distinguishable, I .think, in two essential particulars. The gift there under consideration was not to .any legatee or devisee by name, but to the executor of the testator, and concluded with the words, “to be distributed by him, according to instructions given to him by me.” This direction amounted to a plain negation of any idea that the executor was to retain for himself the substance of the gift. A distribution was wholly inconsistent with a retention of the property by the executor. No such manifest inconsistency is presented by the language of the 10th paragraph of the will in the case at bar. If that paragraph .stood alone it would not be difficult to hold that an expenditure for the benefit of the legatee himself was contemplated by the testator when he required the $5,000 “ to be expended by him, as I have instructed him during my lifetime.” It 'becomes much less easy to adopt this view, however, when the 10th paragraph is read in connection with the 17th, wherein $1,000 is bequeathed to the appellant “ for his personal use.” These words imply that the $5,000 bequeathed by the previous 10th paragraph was not designed to be -applied to ‘the personal use -of the legatee, but was intended, rather to be received and disbursed by him for the benefit of some other person or persons. Looking at both paragraphs together, it would seem as though the testator had unsuccessfully endeavored to create a trust by the 10th paragraph, and having failed in that purpose, that the bequest has properly been adjudged to be invalid. Indeed, counsel for the appellant do not seek to sustain this bequest as -a trust, but they argue that it should be upheld as a gift to the appellant individually.

The substance of their argument on this subject is well summed up by the following extract from their ¡brief.: “ The two provisions may well have been in effect as follows: ‘ I give the first gift accompanied by instructions,, which are purely precatory, .because I would like to have it devoted to a certain purpose, but the gift is not conditioned upon the fulfilment of my request. In the second gift I describe it as for the legatee’s personal use because it is not incumbered even by my wish or desire.’ ” The difficulty which I find in assenting to this construction arises out of the force and effect which it seems to me must he given to the declaration accompanying the bequest of $1,-.000, which expressly provides that it is designed for the personal use of the legatee. Would it be either natural or appropriate for the testator .to insert such ;a direction if he had intended that the previous bequest of $5,00.0 should .under any circumstances be .applied to the personal use .of the same individual ? I hardly think .so. Although the intent of .the testator is by no means perfectly clear, and I -appreciate that different minds might fairly reach different -conclusions upon this question, I am impressed with -the idea that the testator intended that the beneficial enjpymeñt of the larger -bequest should go to some one or more persons .other than the appellant, or be devoted to some other object than his personal use, and that the smaller bequest is the only one designed for the benefit of the appellant personally. It is unfortunate of course that the first bequest should fail by reason of its insufficiency as a trust, but in the view which I take we should not be carrying out the intent of the testator by construing the 10th paragraph as an absolute individual bequest.

For these reasons, but not without serious doubt, I advise an affirmance of the decree appealed from.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county,, in so far as appealed from, affirmed, with costs.  