In re the Estate of Willis , 68 Misc. 2d 1 ( 1971 )

Nathan R. Sobel, S.

The sister and sole residuary legatee of testator George Willis requests construction of paragraph Twelfth of his will — “ twelfth: I give and devise the dwelling place, 984 Sterling Place, Brooklyn, New York, to the United Republic of Tanzania, for use as a dormitory or dwelling place for African Students studying in the New York City Metropolitan area, or for such other purpose which might seem suitable and feasible to the United Republic of Tanzania. ”

This is a specific devise of real property to a foreign government for the purpose of its use as real property. The doctrine of ‘ ‘ equitable conversion ’ ’ is not at all applicable. There is no intention expressed or which may be implied that the real property be treated as personal property. (Salisbury v. Slade, 160 N. Y. 278, 282; Phoenix v. Trustees of Columbia Coll., 87 App. Div. 438, 444, affd. 179 N. Y. 592; Matter of Rose, 48 Misc 2d 475, mod. 28 A D 2d 815.)

Real property as snch may be devised in this ¡State only to a person ‘ ‘ having capacity to acquire and hold such property ’ ’ (EPTL 3-1.3).

Section 10 of the Real Property Law is the controlling statute. It provides that (1) “ citizens ” are capable of holding real property within the State and taking same by descent or devise (subd. 1); (2) “ aliens ” to the same extent as citizens (subd. 2); [A “ government ” can be neither a “ citizen ” nor an “ alien ”, Matter of Fox, 52 N. Y. 530, affd. 94 U. S. 315]; and (3) a ‘1 foreign government ’ ’ but only as a residence or office for an ambassador or consular officials (subd. 3).

There are, of course, many ways in which foreign governments “own” real property for other purposes in this State (see 1 Powell, Real Property, par. 167) but none as a government per se. As a “ foreign government ’ ’ the statute limits the purpose.

Under article Twelfth of testator’s will, the maintenance of a residence or office for an ambassador or consular officials is clearly within the disposition “for such other purpose which might seem suitable and feasible to the United Republic of Tanzania. ’ ’

The will is therefore construed to permit the Tanzanian government to take the property for that limited purpose.

The disposition ‘1 for use as a dormitory or dwelling place for African Students ” is a disposition for the advancement of education and as such for a charitable purpose. Under some circumstances such a disposition may be held to create a charitable trust (EPTL 8-1.1). Such a charitable trust will not be defeated by the circumstance that the Tanzanian government lacks capacity to take a disposition of real property. (EPTL 8-1.1, subd. [d]; 1953 Report of N. Y. Law Rev. Comm., p. 639; N. Y. Legis. Doc., 1953, No. 65S, p. 639.) However, such a determination may be made only in an adversary proceeding in which the Attorney-G-eneral is made a party. This court makes no determination in that respect.

In construing a will it is the obligation of this court to effectuate testator’s intention. He intended that his former residence be used by the Tanzanian government for one of the purposes discussed.

Testator died in 1968. This court is troubled by allegations in the petition that the Tanzanian government has not taken possession of the property; that it has. been allowed to deteriorate and decrease in value; that it is in danger of being vandalized; that as a result of complaints from neighbors, the petitioning residuary legatee has been compelled to advance funds for emergency repairs and preservation of the property.

Although this petition has been pending for several months, the Tanzanian government has neither formally appeared nor answered. Only after insistence by the Miscellaneous Clerk has a letter been received from the Permanent Representative (July 2,1971) but no formal appearance or answer as promised.

Most respectfully, the court advises the Tanzanian government that under the terms of the will, the real property must be utilized in accordance with its terms or the disposition forfeited. A conference of all interested parties, including the Attorney-General, is requested. The parties will be notified.