In re the Construction of the Will of Endell , 192 Misc. 503 ( 1948 )

Delehanty, S.

The fourth article of the will of deceased bequeaths $16,000 of United States bonds to a niece. The words of the bequest are followed by language ‘ ‘ recommending ’ ’ that the investment be retained by the legatee and “ requesting ” that upon the latter’s death she transfer the bonds “ by will ” to a named church. The fifth article of the will bequeaths corporate stock to a clergyman “ recommending ” that that investment he retained by the legatee and with the “ request ” that he “ bequeath ” the same to a named organization. Following such bequests the will reads: “ In thus bequeathing my little competency directly to the beneficiaries themselves,-rather than through the good offices of an established Trust, I have evidenced my hope that they will use the gifts received in accordance with my expressed wishes as well as their conscientious judgment. ’ ’

The court holds that the recommendations and requests of deceased are precatory and not mandatory and neither qualify the absolute gifts to the legatees nor restrict their use of the property. Deceased explicitly disclaimed any intention to create a trust. The words used by deceased express a mere desire and leave obedience to the “ conscientious judgment ” of the legatees. (Lawrence v. Cooke, 104 N. Y. 632; Post v. Moore, 181 N. Y. 15; Tillman v. Ogren, 227 N. Y. 495; Matter of Barney, 207 App. Div. 25, affd. 239 N. Y. 584; Matter of Hayes, 263 N. Y. 219.)

The fact that the clergyman mentioned in the fifth article of the will predeceased deceased resulted in a lapse of the absolute bequest to him. The property described in that article will be disposed of as part of the residuary estate.

Submit on notice decree construing will in accordance with this decision.