Booth v. Cornell , 2 Redf. 261 ( 1876 )

The Surrogate.

I am of opinion that the respective legacies did not vest before the decease of Mrs. Booth, and that at her death, "The New York Young Men’s Christian Association” had ceased to exist, and that the legacy therefore lapsed.

In the numerous authorities considered in the ease of Patterson v. Ellis (11 Wend., 253), the distinction is discussed, and recognized, between legacies given at a day, or payable at a day. It is held, that time in the first case is annexed to the legacy itself, in the second,, only to its payment; that in the first instance, the legacy does not vest until the time specified, and in second, that it vests on the death of the testator.

From the language of the bequest under consideration, it seems to me that it leaves no room for doubt that the time, to wit, the death of Mrs. Booth, was annexed to file legacy, and the intention of the testator, which is always a controlling consideration, was clearly to give no interest in the principal sum. itself, to the corporation named, until after the death of Mrs. Booth, and was conditioned on that event; the legacy must be held therefore to have lapsed as to “ The Young Men’s Christian Association.”

I am not able to appreciate the argument, that because the present corporation is supposed to be engaged in the same charitable Christian work, it may be for that purpose regarded as the same corporation; and if not the same, it seems to me that the request given to the corporation is like one given to an individual, and that if it does not vest at the time of the death of the testator, and there is no such person to take, when it would otherwise vest, it must be held to have lapsed; and it would be no answer to say that there was some individual, who would use the fund for the same purposes.

As to the legacy to “ The Five Points Mouse of Industry,” it is true that the corporation existed at the time of the decease of Mrs. Booth, but it also appears that the bequest was on condition, that it devote the legacy to the purposes for which it was intended by the testator, and the term li to be applied ” I think amounts to a-condition, the now happening of which, defeats the legacy. (See Caw v Robertson, 5 N. Y., 125; Wheeler v. Lester, 1 Bradf, 213, and cases cited.)

On such examination and reflection as I have been able to give this matter, I am of the opinion that both of the legacies lapsed, for the reasons above stated, and that neither of said coporations are entitled thereto.

Decree accordingly.