
    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,
    November, 1898.)
    Bequest on condition — Impossibility of performance through death.
    A testator disposed of his residuary 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 at 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.” The son Joseph was the only next of kin and the wife of the testator, who died before him, was never at any time an inmate or under the charge and care of St. Vincent’s Retreat.
    Held, that the bequest to St. Vincent’s Retreat was conditioned upon the fulfillment by the Retreat of the purposes which were intended to be accomplished by the testator; that such condition was the motive of the bequest, and that the bequest failed when the death of the testator’s wife made the performance of the condition impossible.
    Question submitted arising under the 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 Retréat. 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 at ¡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 1 Minneapolis,’ in the 1 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.  