G. ROBERT WITMER, S.
In order to complete the distribution of this estate the executor has asked the court to construe the effect of paragraph "SECOND" of the will herein, which is as follows: "I give and bequeath the sum of Three Hundred Dollars ($300.00) to Rev. Sebastian B. Englerth, Rector of St. Johns Evangelist Church, Greece, New York, to be used as he may see fit for Church purposes. I also give and bequeath to the said Rev. Sebastian B. Englerth the sum of Two hundred dollars ($200.00), to be used for the saying of masses for the repose of my soul".
The Rev. Sebastian B. Englerth, named in said bequest, died 15 years before the testatrix' death. The court is asked to determine the validity of the two gifts.
The first bequest "to be used as he may see fit for Church purposes", is clearly a gift in trust for religious or charitable purposes. (Personal Property Law, § 12; Matter of Rupprecht, 271 App. Div. 376, affd. 297 N.Y. 462.)
Although there are many early decisions in the lower courts of this State holding that bequests for the purpose of saying masses are not for religious or charitable purposes, it has long since been held that they do constitute gifts for such purposes, and that the beneficiaries receive the gifts in trust therefor. ( Matter of Morris, 227 N.Y. 141; Matter of Idem, 256 App. Div. 124, affd. 280 N.Y. 756; Matter of Breckwoldt, 176 Misc. 549; Matter of Neary, 194 Misc. 200; Matter of Lawless, 194 Misc. 844; 3 Jessup-Redfield on Surrogates' Law Practice, § 2821.)
Accordingly, the nominated beneficiary herein having predeceased testatrix, both of the said bequests are saved by the statute (Personal Property Law, § 12), and the trusts vest in the court to administer. ( Matter of Idem, supra, pp. 126-127.)
As to the gift "for Church purposes", the court will entertain the suggestions of the trustees and pastor of St. Johns Evangelist Church of Greece, N.Y. for the name or names of the person or persons to receive such fund in trust for the purpose specified. As to the gift for masses, the court designates the pastor of St. Johns Evangelist Church of Greece, New York to receive the bequest for such purpose, conditioned upon his filing before presentation of the decree hereon his duly acknowledged consent to receive the legacy and perform the masses in accordance with testatrix' express wishes.
Submit decree accordingly.