Misc.] Supreme Court, June, 1908. the mind of the testator at the time he was making the disposition of his property, except for his bare reference to children. In providing for the disposition of his property in the event of the death of himself and his entire family both the will and the codicil showed an "inadvertent or unintentional disinheritance" and a "probable oversight" within the meaning of the language of the opinion above quoted. The bare reference to the possible extinction of his entire family cannot by any stretch of the imagination be construed to indicate that the testator in disposing of his property had in mind the probability that children. might afterward be born, among whom a distribution of his property might be possible. In Minot v. Minot, 17 App. Div. 521, the testator provided in his will that the reversion of the residue of his estate should go to those persons who, if his death had occurred at the time of the death of his wife, "would then be my heirs at law by blood." The testator left a son born after the execution of the will. In holding that the son was provided for and mentioned in the will within the meaning of the statute above quoted, the court said that "it is sufficient if it can be inferred from the terms of the will that the testator had in mind the possibility of the birth of such child, and made a provision in the will to which the child when born would be entitled." In Matter of Morgenstern, 9 Misc. Rep. 198, the testator, after expressing his full confidence in the judgment and capacity of his wife in the management of the property, and of her love for their children, and that she would do the same full justice to them in the disposition of the estate as he would do, devised and bequeathed to her the residue of his estate. At the time of the execution of the will the testator had three children living. Thereafter three more children were born to the testator. Upon a request to construe the will the surrogate refused to construe the will on the ground that it was beyond his jurisdiction to do so, and in dictum said that a sufficient mention of the after-born children was made in the will. In Stachelberg v. Stachelberg, 52 Misc. Rep. 22, the testator left the residue of his estate to his wife, and provided that in case of her death Supreme Court, June, 1908. [Vol. 59. before him leaving lawful issue her surviving, such residuo should belong to such issue in equal proportions. In holding this to be a sufficient provision for and mention of a child born after the testator's death, the court said: "The words of the statute'in any way mentioned' indicate strongly that the expression was used in the broadest possible sense and was meant to cover any form of reference that showed that the testator in making his will had in mind the possibility of after-born children. * * * The purpose of the statute was not to restrict the power of the testator or to defeat his intention in case he made it clear that he wished to leave nothing to an after-born child; the purpose was to guard against an unintentional omission." Upon appeal, Mr. Justice Scott writing, judgment was reversed, on the ground that the children mentioned in the will "cannot be held to include a child born after the father's death." Stachelberg v. Stachelberg, 124 App. Div. 232. The present will and codicil, unlike those in all the cases hereinbefore discussed, contain no suggestion that the testator intended to leave nothing to his after-born children, or intended to postpone their enjoyment of his estate until a remote date. Except for the chance reference to "children" in a clause of the codicil providing for a disposition of the testator's property in the event that he and his entire family should become extinct at the same time, no possible mention of after-born children could be gathered from the will or from the codicil. Under the rule established by the decisions above quoted construing the statute above mentioned, it is clear that there was an "inadvertent or unintentional disinheritance" and a "probable oversight," and an "unintentional omission" of the after-born children, and the contingency of after-born children among whom a disposition of his property might be made by the testator was not present in the testator's mind at the time he executed the will and the codicil, and accordingly the after-born children were not mentioned" within the meaning of the statute. It follows that the two after-born children succeed to the same portion of the testator's real and personal estate as would have descended or been distributed to them had the Misc.] Supreme Court, June, 1908. testator died intestate, and are entitled to recover the saine portion from the devisees and legatees mentioned in the will in proportion to and out of the parts devised and bequeathed to them by the will. The second question relates to the validity of one of the bequests. Paragraph sixteenth of the will provided as follows: "Sixteenth. I give, devise and bequeath to my executors hereinafter named the sum of five thousand dollars, in trust, nevertheless, for the following purposes: I direct my said executors promptly to cause the incorporation of a society under the laws of the State of New York, to be known as the Tavshanjian Relief Fund; said society shall be managed by five trustees, to consist of four Armenians and one American, all to be named by my said executors. Immediately after the incorporation of said society, my said executors shall pay over to the trustees thereof said sum of five thousand dollars. This fund is to be under the complete control of such trustees, and is to be loaned in sums of five hundred dollars or less at a time, to any honest and deserving Armenian, to help him in his business, the loan to be repaid, with interest, and to be made only on business principles, and upon such security as said trustees shall deem advisable. To those wishing to peddle goods, sums of not over fifty dollars shall be loaned, if they be persons of good repute and clean record, and such. loans shall likewise be made on a business basis and on such security as said trustees shall deem advisable. In case no security can be given, and the applicant is well known for his uprightness and integrity, and his business, after investigation by the trustees, is deemed by them to be in such a condition that with the help of a loan of money it would be made a success, said trustees shall be authorized to make a loan without security. In case of the death or resignation of any of said trustees, the remaining members shall elect his successor." This provision contemplates a profitable business enterprise to be incorporated without provision for the issue of stock, and consequently a kind of corporation not capable of being created under the existing laws of the State of New York. Such a corporation might conceivably be created by special act; but since the trust must meanwhile Supreme Court, June, 1908. [Vol. 59. be necessarily uncertain the ownership and power of aliena tion over the fund would be suspended otherwise than by the statutory lives, and consequently this bequest is in violation of the statute. Burrill v. Boardman, 43 N. Y. 254; Cruikshank v. Home for the Friendless, 113 id. 337; People v. Simonson, 126 id. 299. Chapter 701 of the Laws of 1893, enacted for the purpose of saving charitable trusts which would otherwise be void for indefiniteness, cannot here apply because the trust contemplated in the paragraph above quoted, although productive of a certain degree of benevolence, is nevertheless a business enterprise and not a charitable use. Allen v. Stevens, 161 N. Y. 122; Matter of Griffin, 167 id. 71. The bequest contained in paragraph sixteenth, above quoted, must, therefore, be held to be invalid. Judgment accordingly. HALE M. SMITH, as Administrator with the Will Annexed of LUCIUS C. DURGY, Deceased, Plaintiff, v. SARAH ANN BUSH et al., Defendants. Wills (Supreme Court, Genesee Equity Term, June, 1908.) Interpretation and construction - Expenses of the estate, charges, advances and payment of debts and legacies - Implied charges on land - Implication from gift to widow with power to use principal. Although a testator at the time of making his will owned personal property ample to pay the general legacies for which he provided, yet, where he left the use of his entire estate to his widow for life and provided that, should she require or desire any portion of the principal for her support, he thereby appropriated the same for her benefit, and where the legacies were not payable until after the widow's decease, he must be deemed to have contemplated the possibility that his widow should use the entire personal estate and to have intended to charge the legacies upon his real estate. And, where the testator gave to his executors full power to sell and convey real estate and a sale of the real estate is necessary for the payment of the legacies, the power passes, upon the death of the executors, to an administrator with the will annexed. Misc.] Supreme Court, June, 1908. ACTION to construe a will. E. A. Judd, for plaintiff. George E. Spring, for defendants Sarah Ann Bush et al. Fred A. Lewis, guardian ad litem, for infant defendant. A. J. & J. Knight, for defendant Chauncey Pixley. POUND, J. The controversy is over the will of Lucius C. Durgy, which reads as follows: "The Last Will and Testament of Lucius C. Durgy, of the town of Bethany, County of Genesee and State of New York. “I, Lucius C. Durgy aware of the uncertainty of life, do make, ordain, publish and declare this my last Will and Testament, in manner and form following, that is to say: "After the payment of my funeral charges, the expenses of administering my estate and my lawful debts, I give, devise and bequeath my property as follows: "First. to my lawful wife Betsey A. Durgy the use of all my estate both real and personal for her maintenance and support and should she require or desire any portion of the principal for such support I hereby appropriate the same for her benefit in Lieu of Dower. 2nd. after the decease of my said wife I give my nephews viz Chauncey & Milo Pixley One hundred Dollars each. 3d. to my wife's nephew & niece viz. Fred A. Wait & Mrs. Ella Bentley One hundred dollars each. 4th to my wife's nephews Wayne Wolcott & Lucius D. Brettell Fifty dollars each. 5th. to my wife's niece Kittie Brettell One hundred dollars. 6th. I give to and name as my residuary Legatees my niece Mrs. Sarah Ann Bush and her children now of Farmersville Catts. Co. N. Y. any remainder of my estate. "Likewise, I make, constitute and appoint Fayette S. Bigelow & my wife Betsey A. Durgy with full power to sell and convey Real Estate and to serve without giving Bonds |