Inlia Frances Bangs Mrs Enos Randol Hyatt

Scott

Miss Annie E.

Washington Iowa Rev Mrs. George W. Huntington Newburgh, N. Y. To come and go with perfect freedom, and not confined to rules.

"All the Inmates of this Home, are to pay board, each week they are there with their small means -The price not to exceed Seven Dollars per week Towards paying the running expenses of the house which will have a Housekeeper at the head

"My hope is that my Sister Jessie, will leave her half share of the Estate, to this Home- in memory of our dear Mother -Mary Randol

"I ask Mr James G. Wentz, and Mr. Enos Randol Hyatt to take an interest in this Home to see that it is properly conducted, and I appoint the Westchester Trust Company of Yonkers N. Y.- as my Executor, and Trustee to manage this Estate, and pay the Interest, to a committee of Seven Ladies & Gentlemen, to be chosen by the Board of Vestrymen of St. Johns Episcopal Church of Yonkers-N. Y.- for carrying on this Home-To be established in perpetuity

After certain private bequests she mentioned furniture, pictures and other articles for housekeeping, which the testatrix declared: "I wish to be given towards furnishing the Mary Randol Home As soon as practicable, after the probate of this my last Will- Should any one wish to leave a Legacy to this Home - I would be glad to have them do soand should the Home be large enough to accommodate others than those mentioned in this Will I wish the Committee of Seven Ladies and Gentlemen from St. Johns Church of Yonkers-N. Y.- to admit those Refined Gentlewomen who they judge most-worthy "

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The surrogate held the foregoing trust provision for the Mary Randol Memorial Home" invalid and void.

Daniel S. Remsen, for the proponent.

William W. Scrugham (Graham Witschief with him on the brief), for the contestant.

Robert P. Beyer, Deputy Attorney-General (Egburt E. Woodbury, Attorney-General, with him on the brief), for the State of New York.

PUTNAM, J.-The appeal from the decree admitted to probate was taken by the contestant, the sister of the decedent; and the executor named in the will and the Attorney-General have both appealed from the surrogate's other decree, construing the will and declaring the alleged trust invalid.

Decedent died January 20, 1914, leaving an estate of about $63,000. She executed, on July 5, 1904, the paper writing which has been admitted as her last will.

On appeal from the decree admitting the will to probate the appellant, the sister of the testatrix, first contends here that the writing was not signed at the end thereof, and, therefore, was not duly executed as a will. On examination of the instrument, which was entirely written by the testatrix, we think the learned surrogate correctly sustained the execution of the will under the authority of Younger v. Duffie (94 N. Y. 535). This appellant also contests the testamentary capacity of the deceased.

At her death in 1914 the testatrix was a maiden lady of about seventy years of age; this will was made nearly ten years earlier. She had lived with her father and sister until about 1900, when the sister married, and thereafter the testatrix resided most of the time with her sister, with intervals in boarding houses. At her father's death his estate was practically divided between his two daughters. After 1896 the testatrix had several illnesses, during which for a time she was

melancholy, and would remain speechless. The first attack was from January 7, 1896, to June, 1896; the second from July 26, 1900, to July 5, 1901; the third from May 1, 1907, to December 24, 1910; the fourth from July 10, 1912, to March 15, 1913; and the fifth and final attack from November 26, 1913, to her death, January 20, 1914. It thus appears that the will in question was executed about midway of the six-year interval between the second and third of these attacks.

In answer to hypothetical questions embodying the facts as to her conduct during those attacks, as contestant claimed, four physicians, no one of whom was an expert alienist, each testified that in his opinion she was suffering from depressive melancholia and incapable of making a will.

The theory of the contestant is that through decedent's mental disease she became obsessed with the idea that she was friendless; that she was not welcome at her sister's where indeed she was welcome; and that out of that obsession she conceived the notion of founding a home, which in the trust provision of the will she attempted to do. There was evidence showing decedent's expressions indicating that she held such views.

Proponent introduced no medical evidence, but relied upon. the evidence showing her to have been rational at the execution of the will; that she drew the will herself, and that it shows very exact understanding of the condition of her property and its source, and of her relations to her relatives and friends, mentioning them by name; that she attended to her own business until long after making the will, settling her affairs with the trustee of the will of her father, who died about 1900, and a receipt given by her June 29, 1905, upon such settlement was put in evidence. That trustee testified that her talk and dealings with him at all times were rational. The vice-president and acting official of her bank in Yonkers testified to her dealings at the bank, and that her acts always impressed him as rational.

The husband of the contestant testified that testatrix lived most of the time with them after the spring of 1901; that she often consulted him about her business affairs. It is to be noted that there is nothing in the testimony of this witness to indicate any want of testamentary capacity on the part of the testatrix. Various paper writings by her, such as checks, memoranda of securities received from her father's estate, letters and other writings in her handwriting were put in evidence, all indicating good mental condition. So far as these papers are printed in the record, we fail to find in them anything indicative of want of ordinary mental capacity. After her death, her sister and a friend found many little packages among her effects, each containing some trivial object wrapped up in a paper.

Contestant's counsel contends that the scheme of the will itself, namely, the attempt to found such a home, indicates mental unsoundness. We cannot agree with this view. The idea seems not unnatural for an old maiden lady to entertain, whose only sister had married late in life and left her alone. As human nature goes, it was not strange that she should look upon herself thereafter as neglected, supplanted and left unconsidered.

Therefore, the decision of the surrogate, admitting the paper writing to probate as her last will and testament, cannot here be held to have been against the greater weight of the evidence; and, therefore, it should be affirmed.

The other appeal, namely, that from the decree construing the trust provision of the will and holding it to be invalid, presents more difficulties for our determination. The learned surrogate held that the trust disposition was void for the reason that the provision therein purporting to create preferences, for the testatrix's named relatives and friends, and their lineal descendants, as beneficiaries of the home attempted to be created, made such trust, in part at least, one for a private

use and not for a public charity. Upon this point, in his opinion, he wrote: "If the testatrix had said in the will that the home she desired to found should be used as a Home for refined, educated Protestant gentlewomen whose means are small and whose home is made unhappy, by having to live with relatives, who think them in the way' and then had stopped, the so-called trust would have been a charitable one within the statute. * * * The last clause of the will referred to (meaning the clause as to preferences) shows conclusively to my mind that the testatrix intended to prefer these six relatives and their descendants. She also intended to prefer her six friends named. Her intention was to provide a home for these relations and their descendants and her friends to the exclusion of all others. This then would mean that the income of the so-called trust would be devoted, in part at least if not entirely, to a private use. This being so, the entire gift would be invalid." (89 Misc. Rep. 323.)

We agree with the learned surrogate that the scheme of the proposed home is against the rule forbidding perpetuities, unless it may stand as a charity. Here, however, the intended beneficiaries are not the poor and needy, but persons described of relatively small means, "whose home is made unhappy, by having to live with Relatives, who think them in the way." How is that inhospitable and rude family attitude to be shown? Yet to this vague plan the income of $63,000 is devoted. But the beneficial scheme is not for the public, or for those of a locality. It is tied by many preferences, not to the descendants of the founder, but to a considerable outside field. The testatrix preferred her sister and six of her cousins (of whom three are men) and their lineal descendants forever, and extended the same privilege to six other women named, making in all thirteen stocks with their descendants. Thus the preferences may readily absorb the purposes of the foundation, leaving nothing from this moderate income for outside aid.