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Court Discusses Problems With Trust Language



After providing for a number of bequests, legacies and trusts in various articles of her last will and testament, Maude S. W. McKay, the decedent, disposed of the residue of her estate in the following language

‘TENTH:–All the rest, residue and remainder of my Estate, both real and personal, and wheresoever situate, I give, devise and bequeath unto The Ministers & Missionaries Benefit Board of the Northern Baptist Convention, a corporation of the State of New York, to be invested and reinvested and the income applied to the objects of said organization.

‘My will is, however, that said organization shall first use the said income for the alleviation of suffering from arthritic or other incurable disease, illness or condition, and/or for the comfortable maintenance and support, of any person or persons who may be living at the time of my decease and who may be connected by blood (but not beyond the tenth degree), either with my husband, James Pickens McKay, or with me. It is my purpose that the income on said residue shall be ultimately and solely devoted to the purposes of said organization, but that those near to me and my husband may have first call thereon for the purposes and within the limitations above mentioned. To that end it is my wish that said organization use its sound discretion in the expenditure of said income both as to amount and beneficiary, bearing in mind always that the care of incurables, and particularly arthritics, is nearest to my heart; and to said organization I leave the decision, on whatever proofs may be required, as to what persons are connected with my husband and with me as aforesaid. Should there be a balance of said income remaining in any year, after carrying out the above provisions, then said organization is empowered to use said balance in any following year for the general purposes for which it is formed.

Legal counsel said that it is my further wish that the principal of said residue be given some suitable name in memory of my beloved husband.’

The will was executed on February 11, 1932. The testatrix died on September 12, 1932. The plaintiff is a religious and charitable corporation, and is the residuary legatee and the trustee named in the will. 1 This action was instituted in July 1968 for a declaratory judgment decreeing that the plaintiff has properly administered the fund thus bequeathed to it.

The objects of the plaintiff organization are stated in the amended act of its incorporation as follows:

‘To administer its funds for the benefit of ministers and missionaries who have served the Baptist denomination, their spouses or surviving spouses and their dependent children, and to attain these objects either directly or through the medium of related organizations; to cooperate with such organizations in securing, so far as practicable, uniformity in the methods for the extension of such aid; to promote interest in the better maintenance of the ministry; also, to receive and administer funds to provide benefits to other persons who as employees have served the Baptist denomination, and to their spouses or surviving spouses and their dependent children; and to adopt such measures to these ends as may be recommended by the American Baptist Convention.’

In its complaint, the plaintiff alleges that it has properly administered the trust according to the provisions of Article Tenth of the will. As a result of the state of the pleadings [64 Misc.2d 235] and the hearing before me, the following facts may be deemed to have been satisfactorily proved in support of the plaintiff’s complaint: The assets received by the plaintiff from the McKay estate have been separately held, invested and reinvested. In the exercise of its sound discretion, it has made numerous grants out of the income of the trust fund to qualified relatives of Mr. and Mrs. McKay. In addition thereto, grants have also been made to retired ministers, missionaries and other employees of The American Baptist Convention.

This constitutes a significant part of the work of The Ministers and Missionaries Board. Approval of a grant and the amount thereof depend upon the individual needs of the person applying therefor. However, consideration is also given to, and the amount of the grant would be influenced by, the total income available in the trust, the number of persons from whom the plaintiff had received applications, and the possibility that during the year other applicants may submit requests for aid. The plaintiff has made grants to certain persons for medical reasons (the alleviation of suffering from illnesses), or for the comfortable maintenance and support of persons applying for such grants. Although it does not adopt as a goal the spending of all of the income to be received, and does not devote the entire income to beneficiaries as they make applications[64 Misc.2d 236] to it, the plaintiff has never limited the amount of a grant in order to furnish funds to itself. Grants made during the year are not re-evaluated to provide additional funds to applicants, but those who apply are informed at the time when they receive their grants that additional applications may be presented during the year.

The contesting defendants 3 have challenged the plaintiff’s administration of the trust (a matter which will be considered in the later portions of this decision); but they submit primarily that the testamentary disposition made in Article Tenth of the will must fail in that it violates the rule against perpetuities and is not a valid bequest, either to the plaintiff for its own benefit or as a trust limited as it is to those relatives to be selected and in those amounts to be determined by the plaintiff as trustee. The logical result of this contention is that the property attempted to be disposed of in Article Tenth must descend by intestacy.

The plaintiff argues, on the other hand, that, if one were to conclude that Article Tenth creates a beneficial interest in relatives of the testatrix and her husband within the tenth degree who were living at the time of her death, then the bequest in that respect only would be void, because the class is so extensive that it is impossible to ascertain its membership. Therefore, contends the plaintiff, the bequest to the class of relatives provided for under the Article must fail because the identity of the beneficiaries cannot be definitely determined as of the time of the death of the testatrix or at some time within the rule against perpetuities, and in any event that it is impractical to divide the property in such minuscule fashion among them. A logical extension of this contention would vest the gift absolutely in the plaintiff under the first paragraph of the bequest, devoid of any legal obligation to give effect to the testatrix’s intention as expressed in the second paragraph, other than by a so-called ‘power collateral’.

Thus, both of the opposing parties urge that the rule against perpetuities is applicable and that the rule invalidates basic elements of the bequest. But they disagree as to what is rendered void by the invocation of the rule. The validity of these respective contentions must depend upon an interpretation of Article Tenth and a construction of the language used therein, and the operative meaning of the rule against perpetuities. The crucial and determining factor is, of course, the intention of the testatrix, which must be gathered from an examination of the will and the language employed by her. In this judicial voyage, I proceeded with some difficulty because of the paucity of distinct authoritative precedents in certain critical areas. The route was a long and circuitous one, particularly since it was necessary to steer a satisfactory course between the dangers of the forensic Scylla and Charybdis projected by the contending litigants. And now, I must frankly say that (while I have, at long last, returned to my home base of required ultimate decision, more or less safely, I think) my expedition, although here and there eventful, has not been completely fruitful, for I have not succeeded in gathering (at least, En route) adequate supporting cargo. The simple result of my intellectual travels is that I must, at several ports, rely entirely upon my own resources. And I recognize full well that, no matter how interesting the itinerary, final arrival there must be. In the circumstances, I deem it meet to undertake to chart the [64 Misc.2d 238] calm seas and the turbulent tempests. I encountered on my odyssey, not only as a recorded log of my own trip, but, hopefully, as some aid to an interested explorer.

However, before directing my attention to the basic issues, I note the preliminary question of choice of law–that is, under the law of which jurisdiction should this will, and in particular Article Tenth thereof, be interpreted and construed, and sustained or invalidated?

The testatrix was domiciled in New Jersey at the time that the will was executed and at the time of her death. The will was executed in that State. The trustee (Ministers and Missionaries Board) is a New York corporation; and the trust fund has always been administered in the State of New York. The question, then, is whether the will and the language used therein should be interpreted and construed in accordance with the law of the State of New York or in accordance with the law of the State of New Jersey. That, of course, must be determined by the law of the forum.

The several parties–even those who support the plaintiff’s prayer–do not agree as to which law is controlling. The plaintiff takes the position that the law of New Jersey is applicable, and states that, because of the ‘unique’ nature of the bequest, there are no New York cases in point–and since, indeed, there are no New Jersey precedents on all fours either–there is no reason to conclude that New Jersey and New York would differ in their interpretation of the will, and in their determination as to its validity. The Attorney General states that the plaintiff’s memorandum ‘canvasses the applicable law that is pertinent in support of the validity of the charitable purpose’ and he ‘concurs in the recital’ thereof and ‘believes that the Court should grant the relief that is requested in the’ complaint. The guardian ad litem, on the other hand, ‘assumes’ that New York law would apply (basing his statement upon the view that it is the law of the place of administration and of the state of incorporation of the grantee named in the will which governs the validity and construction of the gift); although he also ‘suggests’ that the bequest would be upheld–albeit, perhaps, differently construed in its effect–under the laws of the State of New Jersey. The contesting defendants cite no authorities, and do not express any view as to which State’s law is to be applied by the Court.

Confronted, as I was, with this dilemma (indeed, not only as to this proposition, but also in respect of several other issues requiring resolution in the case at bar), I felt impelled to undertake a research and analytical safari of my own.

The New York statute having to do with the choice of law as to the validity and effect of testamentary dispositions was (at the time the testatrix made her will and at the time of her demise) Section 47 of the Decedent Estate Law. It provided, in its pertinent part, that ‘the validity and effect of a testamentary disposition of any other property (than that of an interest in realty) situated within the state are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death. Whenever a decedent, wherever resident, shall have declared in his will and testament that he elects that such testamentary dispositions shall be construed and regulated by the laws of this state, the validity and effect of such dispositions shall be determined by such laws.

In the light of the provisions of the present will, has the testatrix elected that her testamentary dispositions be construed and regulated by the laws of thIs state? there is no express election in so many words, but there appears what may be deemed to be an implied declaration to that effect, when one notes that the trust Res is in New York and that a New York trustee was named by the testatrix in her will. What Professor Beale said in that regard is of moment:

‘In the case of a testamentary trust, the seat of the trust is usually the domicil of the testator, where the will takes effect, unless a contrary intention appears, As by naming a foreign trust company as trustee’ particularly in the light of what is stated in Section 298 of the Restatement of Conflict of Laws:

‘A testamentary trust of movables is administered by the trustee according to the law of the state of the testator’s domicil at the time of his death unless the will shows an intention that the trust should be administered in another state’, and in Comment ‘C’ on that section: ‘If the testator appoints as trustee a trust company of another state, presumptively his intention is that the trust should be administered in the latter state; the trust will, therefore, be administered according to the law of the latter state.’ And then it is stated in Restatement 2d, Conflict of Laws § 269, Proposed Official Draft, 1969: that–‘except when the provision is invalid under the strong public policy of the state of the testator’s domicil at death,’–‘the validity of a trust of interests in movables created by will is determined * * * as to matters that affect only the validity of the trust provisions,’ ‘by the local law of the state of the testator’s domicil at death, except that the local law of the state where the trust is to be administered will be applied if application of this law is necessary to sustain the validity of the trust.’

When the problem arises, ‘the court may take into consideration the fact that the trust would be valid under the law of the domicil of the testator, although it would be invalid under the law of the place of administration; or, conversely, that it would be valid under the law of the place of administration, although it would be invalid under the law of the testator’s domicil. When the question is as to the applicable law, the court will tend to apply the law of the state which makes the disposition valid.

That brings to the fore what might be termed a secondary–although an equally vigorous–rule governing the choice of law in respect of the validity of the testamentary disposition made in the case at bar: if possible, that law should be applied which upholds the trust. In that connection, I note what the Court of Appeals had occasion to say, in a case involving a widow’s right of election as distinguished from that which concerned a testamentary disposition, in recalling the historical background of Section 47. There, speaking for the Court, Chief Judge Fuld remarked that, despite the then statute which (without exception being made for a case where the testator might express a contrary intent, as indicated in the last sentence of section 47 quoted above) provided that the validity and effect of a testamentary disposition of personalty were to be regulated by the law of the domicile, the ‘cases decided before (citing), as well as after citing its adoption, held that, when personalty had been placed outside the domiciliary jurisdiction, a testamentary disposition of the property which violated (for example) the domicile’s rule against perpetuities or its mortmain statute–the cases dealt almost invariably with charitable bequests–would be given effect if valid under the law where the property was situated. The declared purpose of the courts was, if possible, to give effect to, and not frustrate, the testamentary dispositions.’

I hold, therefore, that the testamentary clause herein involved is to be tested as to validity in accordance with the laws of the State of New Jersey (the testatrix’s domicile at the time of execution of the will and at the time of her death) or by the laws of the State of New York (the situs of the trust, the locality of the trustee, and the locus of administration) depending upon which State will look most favorably upon the disposition intended to be made by the testatrix and its implementation accordingly. And it is by the law of that State that the testamentary language in the crucial article should be interpreted, the validity of the trust determined, and the effect of its disposition evaluated.

It is generally held that, in order to create a valid trust, there must be a designation of beneficiaries, or a class of beneficiaries, which must be an ascertainable class, and the designation must be made with reasonable certainty so as to be capable of identification. As succinctly expressed in Bogert, Trusts and Trustees, ‘A class must be certain as to membership.’ Whether or not the relatives favored by the testatrix can be ascertained with sufficient certainty so as to permit appropriate cognizance of the Cestuis que trustent and the proper functioning and administration of the trust in accordance with the testatrix’s intention is a shoal necessitating some efforts of studied navigation.

In the case at bar there are 125 known relatives specifically named as defendants herein, and ‘unknown relatives of James Pickens McKay or Maude S. W. McKay, living on September 12, 1932, who are connected by blood (but not beyond the 10th degree)’, also generally named as defendants, all possible beneficiaries. At the trial, the plaintiff presented as a witness an expert on the subject of genealogy, who had examined the will. He prepared, after investigation, a genealogical chart attached to the complaint. His purpose was to determine whether the beneficiaries constituted an ascertainable class. Based upon his study, he expressed an opinion that this class of beneficiaries did not constitute an ascertainable group of persons. There was no conflicting proof. Does this mean, as suggested by the plaintiff, that the New Jersey courts would vitiate the trust? I think not.

In presenting this contention, the plaintiff fails to take into account the machinery established in the will for selection among the stated class. In Section 120 of the Restatement of the Law of Trusts, Second, it is recognized that ‘The members of a definite class of persons can be the beneficiaries of a trust.’ In Comment ‘a’ to that section, it is stated that ‘A class is definite, for example, where it includes only * * * the children or grandchildren or nephews or nieces or issue or descendants or next of kin or heirs of a designated person.’

Then Section 121 of the Restatement expresses the rule that: ‘There can be a trust of which the beneficiaries are the relatives of a designated person among whom the trustee is authorized to select who shall take and in what proportions.’

The A.L.I. Comment explains this rule as follows (p. 256): ‘A trust for the benefit of the relatives of a designated person * * * does not fail if the trustee has power to select who among them shall take and in what proportions. In such a case the trustee may select any member or members of the class in accordance with the terms of the trust, whether or not they are next of kin of the designated person.’

And the following amplification is found in 2 Bogert, Op. cit., Section 161, pp. 105–106: ‘The beneficiary must be so well described that a court of equity can be sure that a complainant calling for the enforcement of the trust is a [64 Misc.2d 259] potential or actual beneficiary under it. This identification may be by way of reference to a family kinship.’

I have not been furnished with any precedents squarely in point in New Jersey and I have not been able to find any on my own. In Litcher v. Trust Company of New Jersey, hereinbefore discussed in other aspects of this case, the Court said that ‘The mere fact that the powers of the trustee and its advisory committee are in a sense discretionary with respect to the particular distribution to be effected does not invalidate the trust.’

On the contrary (as is indicated in an earlier New Jersey opinion–by way of Dictum, it is true, so far as the decision in the case at bar is concerned) the discretion vested in the plaintiff is a testamentary power which supports a holding that the present bequest is a valid and enforceable trust.

Although not a case involving a will or the construction of a will, reference may, I think, appropriately be made at this point to Bennett v. Van Riper. It is concerned with the meaning of the term ‘related to’ in Article 1 of the Relief Fund Law of New Jersey. The Court of Errors and Appeals, by language used in its opinion, suggests that it would hold as valid a bequest in a will for the benefit of relatives of the testator, and it also indicates that the term ‘relatives’ need not be limited to persons who are the testator’s next of kin if the testator authorized a power of selection from such a group of relatives. This is stated at page 565, 22 A. page 1056:

‘I think there was error in confining the meaning of this term ‘related to’ within the narrow limit which has been adopted in the construction of wills and in some statutes. From the indefinite extent of the word ‘relations’ it has been found necessary to limit it in these cases by confining it to the next of kin under the statute of distributions.

The courts in Ontario and New Hampshire–which, like New Jersey’s, fundamentally follow the common law–have had occasion to consider this issue and I shall refer to some decisions in those jurisdictions.

I hold that–were the issue presented to the highest Court of New Jersey–that tribunal would decide (in consonance with the principles expressed by text- writer, law institute, decisions in other jurisdictions, and its own dicta) that the trust in the case at bar is valid, because, as I have outlined in Section VIII, Supra, there is a definite class (those related to the testatrix or her husband to the tenth degree) and the prospective beneficiaries are identifiable by virtue of the fact that relatives may come forward and present their respective claims to the plaintiff and because of the discretion and power of selection accorded the plaintiff. The further fact that the plaintiff also has a beneficial interest in the trust income will not prevent the trust from coming into being–for (as will be seen in Section XII of this decision, Infra) it is incumbent upon the plaintiff, as trustee, to act under the trust as a fiduciary, with primary loyalty and devotion to the interests of the relatives who are the beneficiaries under the will. Moreover, there is no requirement that payment be made in any specified amount or for a given period of time other than with respect to the annual need and income, and the trust corpus is not involved in the distribution process.

Among the cases relied on by the plaintiff is Dalton v. White. There, the bequest provided for $1,000 to each of testatrix’s cousins living at the time of her death ‘irrespective of the remoteness of their relationship’ and ‘irrespective of whether his or her parent cousin may be living’ (p. 56). Over 1,000 persons intervened in the litigation, and about 2,000 individuals living in various places filed claims. In affirming the District Court’s holding that the bequest was incapable of execution, and therefore void, the United States Court of Appeals said (id.):

‘We cannot infer that (the testatrix) meant to make bequests to all the thousands of unknown persons who were distantly related to her. That construction would defeat intentions which she plainly expressed in other clauses of the will. It would exhaust the estate, and therefore prevent payment of more than a fractional part of the bequests to named friends, relatives and religious organizations, which she made (in other clauses of her will). It would prevent the persons whom she undertook to benefit by her residuary clause from receiving anything under it. By ‘my cousins’ she does not appear to have meant any definite category of persons. We are not at liberty to guess what individuals, if any, she had in mind. Since (this) clause can be given no definite meaning, it is void for uncertainty.’

Were there here a mandatory requirement calling for a division of the trust corpus or income in specified amounts, then I would agree with the plaintiff that, under the authority cited by it, the recipient thereof must be definitely ascertained at the time of the death of the testator. However, where broad discretion as to the recipient, amount and the frequency of payment reposes in the trustee (as in the case at bar)–and there is no violation of the rule against perpetuities–the situation is different.

There are thus certain obvious distinctions that render the Dalton case inapplicable as authority for making any meaningful disposition here. In Dalton, the bequests are mandatory and in specific amount; here, the bequests to relatives are discretionary both as to the amount and the recipients thereof. In Dalton, the beneficiaries were not restricted to any degree of consanguinity; here, there is a limitation to the tenth degree. [64 Misc.2d 263] In Dalton, the only proof presumably required would be such as would establish the claimant as a ‘cousin’ of the testatrix, no matter how remote; here, the manner of proof is left to the plaintiff’s discretion within the criteria set forth in the bequest, which is the alleviation of suffering from incurable disease or need among members of the class. Finally, in Dalton, implementation of the contested clause would have exhausted the estate and frustrated the testatrix’s intention with respect to the other clauses in her will; whereas in the instant case, the testamentary scheme set forth in the entire will, as well as in the contested Article Tenth, is amenable to total effectuation in accordance with the fullest extent of the testatrix’s intention.

The defendants Helen McKay Pasko and Joyce Helen Pasko have never filed an application for aid. The defendant Donald White McKay did not apply at any time prior to June 1967. As to the period prior thereto, these defendants claim that their respective incomes for those years were not sufficient for their ‘comfortable maintenance and support’, and demand an amount which would have enabled each of them to live comfortably during that time.

The defendants’ claim as to this is lacking in merit, since none of the defendants has ever applied for assistance during that period. I agree with the submission in that regard of the guardian ad litem, who pointed out that:

‘The will does not provide for ‘past needs’. And it specifically provides that a balance in any one year should be devoted to the general purposes of the plaintiff for the following year. It would impose an intolerable, if not impossible, burden upon the plaintiff to ask it to go back to past years and ascertain what it should have done then. And apart from depleting funds, it would be unfair to future applicants who may not now be aware of the provisions of the will or who may not now be asking for assistance but who may do so in the future.’

The defendant Donald McKay also objects, as I have said, to the sufficiency of the amount of the award made by the plaintiff to him for the years 1967 and 1968.

On June 15, 1967, Donald McKay filed his first application with the plaintiff for aid, claiming that he was a nephew of James Pickens McKay, that he owned a home valued at $25,900 (with a $10,000 mortgage thereon), that his annual income had been $9,150, and that his wife’s annual income was $3,913.12; that, in November 1967, due to two heart attacks, he had retired, and that his income had thereby been reduced to $381 a month ($4,572 per annum).

Through his attorney, Donald McKay stated, in a letter to the plaintiff dated November 30, 1967, that, because of the reduction in his annual income from $9,150 to $4,572, ‘it will be virtually impossible for Mr. and Mrs. McKay to maintain any semblance of their former standard of living and make ends meet’. The plaintiff trustee, through its subcommittee, examined McKay’s request for aid, and, by letter dated January 4, 1968, informed him that it would pay $600 toward his unreimbursed medical expenses of $700.36, which amount was to be immediately paid from 1967 income generated from the trust fund. The plaintiff also approved a grant of $400 for the year 1968 from 1968 income, and advised the defendant that, in accordance with the plaintiff’s usual procedure, the matter would be reviewed toward the end of 1968 to determine what could be done for the year 1969. McKay was assured ‘that the Committee will give sympathetic consideration to any emergency need which may arise’. McKay contends that these allowances were not sufficient for his ‘comfortable maintenance and support’.

The plaintiff counters, in its post trial brief, that the Donald McKay family income for the year 1967 was reduced to approximately $12,600, which does not include the $600 which he received from the trust fund, and that if this amount is added to his 1967 income, the resulting income for that year was more than it was before he had been compelled to retire.

As to the 1968 situation, McKay and his wife received an income of $8,485.12, plus the grant from the trust of $400. The plaintiff states: ‘This income of almost $8,900 is a high income for a retired couple. The most recent U.S. Department of Labor Bulletin available at the time Donald W. McKay’s application was considered showed that a moderate standard of income for a retired couple in the New York metropolitan area was $4,341.00.’

I do not concur that McKay’s income is truly a ‘high’ one. But the critical legal legal circumstance is that he is mistaken as to the purpose and function of the trust established by Article [64 Misc.2d 266] Tenth–and that is the controlling element as far as I am concerned. It was not intended by the textatrix that the income from the trust would be applied to enable relatives to live according to the standard to which they had become accustomed. Nor was it her intention that the defendant McKay was to receive an award sufficient to make his annual intake equivalent to his pre-retirement income. These are not the criteria established in the will by which the trustee was to be governed in making awards. By the terms of the bequest, the plaintiff trustee is given sole discretion ‘in the expenditure of said income both as to amount and beneficiary, bearing in mind always that the care of incurables, and particularly arthritics, was nearest to the testatrix’s heart’. It is to that end that grants of aid are to be made by the plaintiff. They should be based solely upon the need of the particular applicant, and need not reflect an amount which would enable the applicant to live in accordance with the same standard by which he was living in the past.

Based upon an analysis of the proof in the case at bar, and taking into consideration the intention of the testatrix, and the fact that the will herein gives to the plaintiff trustee the sole discretion to determine both the amount of a grant and the qualifications of the beneficiary, I believe that the awards to the defendant were reasonable and sufficient under all of the circumstances. The plaintiff appears to have given careful consideration to the defendant’s application for assistance. And it informed the defendant that, if the need arose, further applications could be made and would be considered. The trustee was obligated to review the financial situation and personal health of the defendant McKay and award him an amount, if any, which was necessary to his comfortable maintenance and support. This the plaintiff trustee did. There is no evidence that the trustee has violated the obligation of trust imposed upon it by the will or that it has failed to exercise its judgment honestly and in good faith.

‘If (as in the case at bar) the trustee’s power to choose beneficiaries is qualified, then he must use his discretion with a view to carry out the purposes of the settlor as shown in the qualifying clauses. For example, the trustee may be given power to make payments of capital or income come to such of the descendants of the testator as are in need and to exclude those who do not require aid. If the trustee makes an honest decision with respect to the application of this standard, based on investigation, the court will not interfere with his action. It would requireproof of an ‘abuse’ of discretion in order to cause the court to upset the choice of the trustee’.

The defendant’s claim to additional awards for the years 1967 and 1968 lacks merit and is rejected.

McKay’s final objection relates to the years after 1968, and his claim is that he should receive an amount now for those years. This contention has no merit. If sustained, it would seriously hinder the plaintiff in the administration of the trust. There is possibility and danger of depletion of the trust fund if the principle were established that an amount were to be awarded for the future. Also, the defendant cannot possibly establish at the present time that he will be in need of assistance within the terms of Article Tenth. Furthermore, the testament does not contemplate an award for future years. What was anticipated was an allowance made to relatives who came within the designated class of beneficiaries for the years in which such relatives had applied to the plaintiff for aid. It was not the testatrix’s intention that the entire income from the trust would be devoted to relatives, for, at the end of Article Tenth, there appears the following provision:

‘Should there be a balance of said income remaining in any year, after carrying out the above provisions, then said organization (the plaintiff) is empowered to use said balance in any following year for the general purposes for which it was formed.’

This is what the present plaintiff did with the trust’s surplus income from 1933 (the year in which the trust was established) through 1967 (the year which immediately precedes the instant challenge made to the trust by certain of the defendants.)

Initially, the corpus of the trust amounted to $176,377.87. The principal at the time of the institution of this action was $300,000. The total income received from this fund beginning with the year 1933 and ending 1967 was $332,792.32. Of this sum, $150,333.55 was paid over to the relatives (44, in varying amounts, out of 125 known possible beneficiaries). The balance of the income, $182,458.37, was retained by the plaintiff for use for its general purposes, as provided in the will.

The sum of what I have held thus far is that–under the law of New Jersey, the State of the applicable domicile–the challenged bequest is valid, and–under that law, too–a valid trust has been established by that bequest (both in respect of the categorized relatives of the testatrix and of the named charitable trustee), and–under that law, as well–the rights and duties of the respective parties have been delineated, in consonance with what I have concluded the courts of New Jersey would themselves determine.

The guardian ad litem–as I have hereinbefore indicated–has stated that his assumption is that it is New York law that should be applied, arguing that, ‘by general acceptance, the law of the place of administration and of the state of incorporation of the charitable legatee governs the validity and construction of the gift, certainly if necessary to do so in order to uphold it, and certainly too where those to be benefitted are by no means limited to the ‘community’ where the will was probated.

If I read aright Section 47 of the Decedent Estate Law of the State of New York (see Part III of this opinion, Supra), the mechanics of the judicial process would, in this case, involve (as I have proceeded) an initial approach towards the law of the place of the domicile; and if–under that law–the bequest attacked can be sustained, the trusts upheld, and the testatrix’s intentions carried out and fairly implemented, then it is the law of the State of the domicile that is applicable; and, by consequence, I need not concern myself with the state of the law on the subject of the State of testamentary administration and the State of incorporation corporation of the trustee.

As a result, I do not deem it needful or useful to indicate here my views as to whether or not the assumption of the guardian is warranted, his argument persuasive, or his citations apposite.

Suffice it to say that I have not been presented with–nor have I independently found–any authoritative precedent in New York contrary to my several determinations herein. And thus do I end this odyssey by formally stating that:

This opinion, specifying as it does the appropriate findings of fact and conclusions of law, is the decision of the Court (CPLR 4213). Accordingly, settle judgment in favor of the plaintiff.

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