In Re the Will of Trybom

Loughran, J. This is a proceeding for the construction of a will. The testator, James O. Trybom, died in March, 1936, survived by bis wife and two minor children. He was a member of the bar. The appellant Dorothy M. Hannigan is an attorney at law who was associated with him in his practice. His will, dated January 2, 1936, makes but two dis-positive provisions. By one he gives his residuary estate to his wife, who is named executrix. The other provision is the subject of this proceeding. It reads as follows: “ I do hereby give, devise and bequeath to my associate, Dorothy M. Hannigan, all of my office furniture, and all of my interest in the library at my office at 51 Chambers Street, New York City, that being a one-half interest and a one-half interest in all the pending legal matters in consideration of the services to be rendered in the probate of this my last Will and Testament.” At the suggestion of the Surrogate, Miss Hannigan made a written offer to serve as attorney for the estate. This tender was refused by the executrix. A decree followed declaring that the conditional bequest was void. “ The consideration fails,” said the Surrogate, “ and, consequently, the gift falls with it.” The Appellate Division affirmed. We think this result missed the intention of the testator. He did not try to say that the executrix was at all events to have Miss Hannigan as attorney for the estate. It cannot reasonably be supposed that “ services to be rendered in the probate ” of this simple will was in his mind an object of first importance. There is no gift over of the conditional bequest. The primary idea behind it appears to us to have been the expectation of the testator that his law practice could be wound up *109 without changing hands. Half the return was to be a reward to his office associate. The other half would fall into his residuary estate. Taking that to have been the testamentary purpose, it does not matter whether the incidental condition annexed to the bequest to Miss Hannigan was in form precedent or subsequent. Performance on her part was tendered and refused. We can find no satisfactory basis for a presumption that this situation was intended by the testator to spell a forfeiture of the gift. (See Livingston v. Gordon, 84 N. Y. 136; Cunningham v. Parker, 146 N. Y. 29; 18 Am. & Eng. Ency. of Law, p. 734; 2 Page on The Law of Wills, § 1133.) The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, with costs to the appellant payable out of the estate, and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion.