
    In the Matter of the Judicial Settlement of the Account of James S. Dempsey and John Lucy, as Executors, etc., of Luke Kennedy, Deceased.
    
      (Surrogate’s Court, New York County,
    
      Filed November, 1898.)
    Bequests — Conditional—Impossibility op Performance Through Death.
    Testator’s will gave one-third of the residue of liis estate to the. officers of a charitable institution in trust for the maintenance and support of his wife during her life and for her burial expenses, and’ provided that what should remain of such share at her death might be retained by such officers or trustees for the benefit of the institution. The wife died before testator and had never been under the care of the institution. Held, that the bequest was conditional upon the fulfilment of the purpose for which it was made, viz.: the support of the wife, and such performance having been rendered impossible by the death of the wife, the bequest failed. "
    Question submitted arising under tbe fifth clause of the will. The executors’ contention was that, under the will, the gift to St. Vincent’s Retreat was either a conditional legacy or.a trust, for the benefit of Mary A., Kennedy during her life, with remainder over to St. Vincent’s Retreat; that it should be judicially determined that St. Vincent’s Retreat is not entitled to the same or any portion thereof.
    Rider & Smith, for executors; Sayers & Gillespie, for’St. Vincent’s Retreat.
   Arnold, S.

The decedent died in this city in or about the month of March, 1896, leaving a will which was executed February 3, 1891, and at each of said dates his only next of kin was his son, Joseph Kennedy, residing in Minneapolis. The third clause of the testator’s will gave a legacy of $2,000 to his friend, James S. Dempsey, and the fourth clause, $1,000 to the parish priest of St. James Church, for the poor of the congregation. The testator then disposed of the residue of his estate in the following words: “ The balance thereof to be divided as follows: One-third thereof to be given in trust by my executors to the trustees or officers of St. Vincent’s Retreat, situate a,t Harrison, New York, for the benefit, maintenance and support of my wife, Mary Ann Kennedy, during her natural life, and to receive the best of nourishment and care and to be made comfortable in her old age, and on her decease to receive decent burial; and my executors are directed to allow the said officers or trustees to retain any moneys that may be left out of my said wife’s share on her decease, to. be kept by them for the benefit of their institution. Sixth. And my executors are further directed to pay over the other two-thirds of said moneys to my son, Joseph, who now resides at. ‘ Minneapolis,’ in the ‘ State of Minnesota,’ and also give, devise and bequeath to my son, Joseph Kennedy, all my property in Minnesota, to have and to hold the same to himself forever.” Mary Ann Kennedy, the wife of the testator, predeceased him ■on August 11, 1872; She was not, at that or any other time, .an inmate of St. Vincent’s Retreat, or in' any way under its •care and charge. Was the bequest upon condition, and was the performance of that condition the motive of the bequest, and has the bequest failed because the death of Mrs. Kennedy before the testator rendered such performance impossible? Williams on Executors (6th ed.), vol. 2, p. 1372. The scheme of the will was just and beneficent. Had the testator died intestate, leaving his wife surviving, she would have taken one-.third of his estate and his son two-thirds, and "this is what he desired substantially to accomplish by his will, but he no doubt realized that his son lived in a distant State, too far, perhaps, for his mother in her old age to go, and that he could not care for and make her comfortable here when so far away. With forethought and solicitude for her welfare, the testator endeavored to insure her future happiness and comfort by himself selecting as her future home St. Vincent’s Retreat, and providing for her support and maintenance in that institution during her life, and the payment of her funeral expenses upon her death, out of the one-third of his estate appropriated for her benefit, the Retreat to retain whatever was then left of the same. My conclusion is that the bequest to the Retreat was conditioned upon the fulfillment by the legatee of the purposes which it was intended to accomplish, and that such condition was the motive of the'bequest. The performance of the condition having become impracticable, the bequest, therefore, fails. A decree may be submitted in accordance with these views. The objections filed by the executor of Mary Ann Kennedy are overruled.

Decreed accordingly.  