
    Matter of Proving the Last Will and Testament of Edith C. Dunlap, Deceased.
    (Surrogate’s Court, New York County,
    June, 1914.)
    Wills — construction of — when bequests and devises adjudged valid — Decedent Estate Law, § 17.
    Where by the will of an unmarried testatrix all of her small estate, both real and personal, was' given to her executors in trust to pay or apply the income thereof to her sister, an incompetent, during her life, with power in the trustees to consume the corpus by the application of the principal to said sister, but at the rate of a certain sum per annum, in addition to the income payable to her, with remainder over to three charitable or benevolent corporations, a contention that the will contravenes section 17 of the Decedent Estate Law, as it carries more than one-half of the estate after payment of debts to such corporations, is untenable and the bequests and devises will be adjudged valid.
    Proceeding upon the probate of a will.
    Olin, Clark & Phelps (Robert J. Holmes, of counsel), for proponent.
    
      Henry Staton, for New York Polyclinic Medical School and Hospital.
    George W. Elkins, for West End Presbyterian Church.
    John J. Hynes, special guardian.
   Fowler, S.

The script propounded as and for the last will of Edith C. Dunlap, deceased, has been duly proved according to the Statute of Wills and is entitled to our decree of probate in the regular course of business.

A question of construction on the probate is put at issue. By the will the testatrix, an unmarried female, bequeaths and devises all her estate, real and personal, to her executor on trusts in substance to pay or apply the net income thereof to her sister Ethel E. Dunlap, an incompetent, during the life of cestui que trust,, with power to such trustee to consume the corpus by application of the principal of the entire estate to the cestui que trust, but at the rate of $250 per annum, in addition to the income payable to such beneficiary, remainder over to three charitable or benevolent corporations. The special guardian for the incompetent contends that the will contravenes section 17 of the Decedent Estate Law (formerly Laws of 1860, chap. 360), as it carries more than one-half of the estate after payment of debts to such corporations. The estate is small. The guardian’s contention does not seem to me to be well founded in any event, as it is possible that the remainders over may be defeated by the execution of the power and the total consumption of the estate for the benefit of the sister of the testatrix. In that event the remaindermen will take nothing.

I have very often had occasion to consider anomalous limitations of this kind, permissible only since our Revised Statutes. While such remainders are in appearance contingent, I have generally regarded them as vested remainders, subject to be defeated by the execution of the power. Of course, such remainders or even such executory interests were never contemplated or permissible at common law, and neither Mr. Fearne nor Mr. Smith in their respective works on contingent remainders and executory interests could have had them for a moment in contemplation.

I shall not stop to elaborate my reasons, as I am for the moment much pressed by other business in this court. I am satisfied that as the beneficial interests of the cestui que trust cover the entire corpus or estate of testatrix the statute invoked has no application to the will before me.

But another point is argued, and that is that the testatrix, having no husband, wife, child or parent, was not prohibited by the statute from devising or bequeathing all her estate to charity. In other words, proponent contends that testatrix is not within the statute. While it is undoubtedly true, as argued by the special guardian, that any one interested in the estate may invoke the statute although not mentioned therein, yet that is quite another thing from extending the operation of the statute to a case not covered by it. I am fairly familiar with the many adjudications cited by the contending parties and I shall not stop to review them in detail. I have no doubt on the law of this case. The decree will be settled so as to adjudge the bequest •and devises to be valid.

Decreed accordingly.  