In re the Probate of the Will of Murray

Thomas, S. — Jn the proceeding to prove the will of the deceased, the validity of the residuary clause is asked to be determined. This clause is in the following words: “ Eleventh. All the rest, residue and remainder of my estate I give, devise and bequeath to my executor in trust to invest, keep invested and pay the principal and income thereof towards the purchase of a plot in Calvary, or other cemetery, Calvary being my choice, and to the erection of. a monument and the care of said plot and monument as my said executor may see fit to make payments therefor.” By this provision the testatrix attempted to create a trust which should bind her residuary estate for an indefinite perior of time, not measured by any specified lives, and for a purpose not religious, educational, charitable or bene? volent, for the benefit of indefinite unknown persons who might be employed by her executor or his successor at his discretion. Such a trust is void. Holland v. Alcock, 108 N. Y. 312; Matter of Raab, 42 App. Div. 141; Allen v. Stevens, 161 N. Y. 122. It is not a direction to the executor concerning the expenditure of a specified sum of money for an interment of a kind approved by the decedent, and in accordance with her means, and so not within Matter of Fraser, 92 N. Y. 239. The executor will, of course, be charged with a duty to attend to the proper interment of the testatrix, but the clause in question is not divisible into parts, and is entirely void. Decreed accordingly.