In re the Estate of Simchowitz

Maximilian Moss, S. In this proceeding to settle the executors ’ account, a construction is sought of article “ Seventh (a) ” of the will to determine whether the direction in respect of annual payments to be made to five charities is mandatory or precatory. Fixation of the attorney’s fee pursuant to section 285 of the Surrogate’s Court Act is also asked. Under article “ Seventh ” of the will the residuary estate is divided into two equal parts. One of these parts is bequeathed to a charitable foundation incorporated by the testator under the laws of this State. Under subdivision (a) of said article, testator provides in part: “ I direct and request that the said * * # Foundation, Inc., make the following annual payments to the charities hereinafter named ”. This direction is followed by the names and addresses of five religious institutions. Testator’s will clearly indicates he was a practicing orthodox Jew. He provided for the interment of his remains in Israel; he made funds available for the Hebrew education of his descendants ; and he directed annual contributions to named institutions [750] devoted to the Hebrew Sabbath and for the perpetuation of Judaism. Such provisions satisfy the court that the direction to make annual payments to the named religious organization is not the mere expression of desire (3 Jessup-Bedfield, Surrogates’ Law and Practice, § 2020) but the imposition of a positive duty upon the named legatee to retain the legacy as a trustee for the benefit of the charities named in subdivision (a) of article 1 ‘ Seventh ’ ’ of the will and to make the annual payments therein provided for until the said legacy is exhausted. Where it is reasonably certain that the testator intended that the bequest be devoted to charitable purposes, even where there is no formal trust, a gift in trust will be implied (Matter of Durbrow, 245 N. Y. 469, 477; Sherman v. Richmond Hose Co., 230 N. Y. 462; Matter of Syracuse Univ. [Hendricks], 1 Misc 2d 904). The compensation of the attorney is fixed and allowed in the siim of $3,600 as fixed by stipulation with the Attorney-General of the State of New York, subject to credit for the advance of $1,600 paid on account thereof.