In re the Accounting of National Bank

John L. Dillon, S. The questions submitted for determination in connection with the judicial settlement of the executor’s account are disposed of as follows: (1) By reason of the default of the claimant, the claim set forth in Schedule D-l of the account is dismissed. (2) Title to the residuary estate having been given to persons under the age of 21 years, with possession thereof to remain [427] in the executor trustee, the court determines that the testator by the language of paragraph “ ninth ” of his will created a power in trust with the executor as the donee thereof. (Beal Property Law, § 138.) (3) A question of construction has arisen with respect to the bequest contained in paragraph “ sixth” of the will, hereinafter quoted: “sixth: I give and bequeath to the United States Navy Hospital, the sum of Five Thousand ($5,000.) Dollars. ’ ’ Due to the failure of the testator to name a specific hospital as the recipient of said gift, the court is called upon to exercise its cy pres power pursuant to section 12 of the Personal Property Law. The gift created by the testator is for a charitable purpose. (Matter of Cohen, 58 N. Y. S. 2d 924.) The general policy of the courts is to sustain charitable bequests wherever possible. (Matter of Syracuse Univ. [Hendricks], 1 Misc 2d 904; Matter of Yungel, 153 N. Y. S. 2d 418; Matter of Brown, 93 N. Y. S. 2d 881; Matter of Cohen, supra.) Despite the absence of express words of trust, the court may still apply the cy pres doctrine to sustain a gift for a charitable purpose. (Matter of Durbrow, 245 N. Y. 469; Matter of Brundrett, 87 N. Y. S. 2d 851.) Gifts for the benefit of naval hospitals may be accepted by the Secretary of the Navy, and deposited in a fund entitled “ Department of Navy, General Gift Fund ”. (U. S. Code, tit. 10, § 2601.) The court determines that the intention of the testator can best be given effect by holding that the legacy provided in paragraph £ 1 sixth ’ ’ of the will shall be paid to the Department of the Navy, general gift fund, for use in the improvement of Navy hospitals as the Secretary of the Navy directs. Settle decree.