In re the Estate of Edwards

Appeal from a decree of the Surrogate’s Court of Columbia County (Oberwager, S.), entered April 13,1981, which construed the will of John L. Edwards, holding that respondent Worcester Academy was not disqualified from receiving the trust income bequeathed to it by the terms of said will. The State Bank of Albany, trustee of a trust established under the will of John L. Edwards, initiated a proceeding seeking construction of a clause of the will. The clause at issue contained the following residuary disposition: “7. Commencing two years after the date of my death, [the testamentary trustee is] to pay over the net income from the Trust established by this Will, not needed for the annuities and other payments from income provided for above, and subject to the conditions hereinafter set forth, in semi-annual installments to the Worcester Academy, Worcester, Massachusetts, so long as the said Worcester Academy continues to be operated as a boys preparatory school, preparing boys for college entrance. In case the said Worcester Academy ceases to be operated as a preparatory school for boys, it shall thereupon become disqualified as a beneficiary and recipient of such income and payment of such income shall thereupon cease and terminate.” The will provides also for successor, alternative charitable beneficiaries of the trust income, which are subject to disqualification upon certain specified conditions. If all the charitable beneficiaries fail, the trust income is to be paid to a charitable institution in Columbia County to be selected by the trustee, subject to approval by the Surrogate’s Court. The facts of the matter are undisputed. When the will was executed and admitted to probate and the trust was thereby established, Worcester Academy was a preparatory school for boys only. Subsequently, it began admitting girls. The question presented to the Surrogate was whether the academy was barred from receiving the trust income because it had become coeducational after the trust vested. The Surrogate found that the clause at issue was clear in its meaning and, in the absence of 703 ambiguous, conflicting, inconsistent or contradictory provisions in other portions of the will, its clear meaning would be given full import. The court continued the Worcester Academy as beneficiary of the trust and declined to read into the will a requirement that the academy remain strictly a school for boys in order to qualify as beneficiary. Christ Episcopal Church of Hudson, N. Y., the second alternate beneficiary of the trust moneys, contends that the testamentary gift to the academy terminated when the institution became coeducational. We disagree. The paramount rule of testamentary construction is that the intention of the testator must be gleaned from the express language of the will (Matter of Jones, 38 NY2d 189; 64 NY Jur, Wills, § 558, p 632). The language of the will indicates that the testator intended that the moneys go to the academy as long as it prepares boys for college entrance. This function continues to be fulfilled. Further, we find no other language elsewhere in the document which would indicate an intent to disqualify the academy. The will was drafted at the instruction of an obviously intelligent and sophisticated testator who was precise and definite in expressing his intentions. Had he wished to qualify his bequest by use of language such as “solely” or “only”, wé would expect to find such limiting language in the will. We note too that New York courts are cautious in divesting a named beneficiary (Matter of Collins, 13 NY2d 194). We conclude then that the express terms of the will support the continued qualification of the Worcester Academy as income beneficiary (see Matter of Goehringer, 69 Mise 2d 145). Decree affirmed, without costs. Kane, Main, Mikoll and Weiss, JJ., concur.