In re the Estate of Trachtenberg , 635 N.Y.S.2d 29 ( 1995 )

—Order, Surrogate’s Court, New York County (Eve Preminger, S.), entered March 17, 1995, which, in a proceeding to impress a constructive trust upon the decedent’s residuary estate, denied respondent-appellant residuary beneficiary’s motion for summary judgment dismissing the petition, unanimously affirmed, without costs.

We agree with the Surrogate that notwithstanding the clearly precatory language used by the testator in "suggest[ing]” to her residuary beneficiaries that they use their legacies "to support and further the purposes of organizations and movements” with which she had been identified, an issue of fact exists as to whether the bequests were induced by the beneficiaries’ promises to donate their legacies to the Communist Party. A high ranking member of petitioner Communist Party asserted that the decedent, in making absolute bequests to "trustworthy” Party members, was simply following his advice on Party procedures for avoiding the Party’s incapacity, as an unincorporated association, from taking directly under a will, in accordance with the letter sent by appellant himself, a former member of the Communist Party. Accordingly, there are triable issues of fact as to whether a constructive trust should be imposed (Trustees of Amherst Coll, v Ritch, 151 NY 282, 323-325; Tebin v Moldock, 19 AD2d 275, 284-285; see generally, Simonds v Simonds, 45 NY2d 233, 241). Concur — Ellerin, J. P., Ross, Nardelli, Williams and Mazzarelli, JJ.