In re the Judicial Settlement of the Account of Proceedings of Allendorf

Schulz, S. In this accounting proceeding a construction of the last wdll and testament of the decedent is requested. The document provides for general legacies of five dollars to [766] a son, and one hundred dollars to a nephew, and specific legacies of jewelry to some friends. By the 6th paragraph, all the rest, residue and remainder of the decedent’s estate is given, devised and bequeathed to a trustee, one-half thereof for the purpose of having masses said, and the other half to be used for the perpetual care, maintenance, etc., of the decedent’s burial plot. The petition and account, as amended, show that the decedent left him surviving a son and a grandson, and the question involved is whether or not there is a violation of the provisions of section 17 of the Decedent Estate Law (as amd. by Laws of 1923, chap. 301). This, so far as material, provides that “ no person having a * * * child or descendant * * * shall, by his * * * last will and testament, devise or bequeath to any benevolent, charitable, * * * religious * * * purpose, in trust * * * more than one-half part of his * * * estate, after the payment of his * * * debts, and such devise or bequest shall be valid to the extent of one-half, and no more.” The half given for the purpose of having masses said is a gift for a religious use. (Matter of Welch, 105 Misc. 27; Matter of Morris, 227 N. Y. 141.) The half given to be used for perpetual care of the burial plot must be deemed to be for charitable and benevolent uses. (Pers. Prop. Law, § 13-a; Real Prop. Law, § 114-a; Matter of Braasch, 206 App. Div. 96, 101.) In determining the amount of the estate for the purpose of ascertaining whether or not there has been a violation of section 17 aforesaid, the value of the decedent’s real and personal property as of the date of his death must be fixed. From this is to be deducted his debts, payable out of personalty. The value of the balance on hand should then be divided in half, and the amount bequeathed for the purposes above set forth is not permitted to exceed more than the one-half so ascertained. (Matter of Seymour, 239 N. Y. 259; Matter of Carnegie, 203 App. Div. 91; affd., 236 N. Y. 517; Matter of Brooklyn Trust Co., 179 App. Div. 262.) So much as then remains of the personalty and the realty is distributable and descends to the same persons who would have received it if the decedent had died intestate. The account sets forth the alleged assets of the estate, but does not give the value of the jewelry therein listed, and while from its description it would appear that such value is not large, nevertheless it must be stated and must be considered in reaching a determination. No finding as to whether or not there has been a violation of section 17 and no decree of construction and distribution can be made until the account is corrected to show the value of all of the assets of this estate.