The plaintiff, sole surviving executor of the estate of William J. Berg, deceased, filed this proceeding for construction of the decedent's will. The main problem pertains to the following bequest of the residuary estate contained in paragraph 13 of Article III of the will:
"* * * up to Two Hundred Thousand Dollars ($200,000.) (free of tax), I give, devise and bequeath unto the NEW YORK WOMEN'S LEAGUE FOR ANIMALS, INC., a corporation organized under the laws of the State of New York, it being my desire that this money should be used for the purchase of a farm in a rural district which shall be used for the care of animals that may come under its care."
Paragraph 14 of the same Article provided for disposition of the residuary estate in excess of $200,000, but that contingency did not arise.
The decedent's wife predeceased him; no children had been born of the marriage and he was not survived by any heir-at-law or next-of-kin capable of inheriting.
The plaintiff alleges that the residuary estate will not reach the sum of $200,000; that it now amounts to about $55,000 and will be increased by approximately $30,000 upon the termination of another trust. The legatee, New York Women's League for Animals, Inc., hereinafter called the "League," has advised the plaintiff that it will not accept the legacy if it must be used as the testator specified, because the purchase and maintenance of a farm for animals would require it to embark upon a new project and might involve expense much greater than the available fund; but it is willing to accept without limitation or condition for the general purposes of its organization, which include the maintenance of a hospital for the treatment of sick and homeless animals in the City of New York. The decedent had been for many years on the finance committee of the league and both he and his wife had made contributions to it.
The league contends that the expressed desire of the testator as to the use of the legacy was merely precatory; that the testator did not intend to impose a condition or limitation. On the other hand, the surviving contingent residuary beneficiaries claim that the testator's language constitutes a mandatory direction and that since the league refuses to accept the gift so conditioned, the trust must fail; that the doctrine of cy pres is inapplicable and that they have become entitled to the entire residuary estate. The State of New Jersey was made a party defendant because of the possible escheat of the property in accordance with the provisions of R.S. 2:53-15 et seq. Pursuant to Rule 3:17-3, a guardian ad litem was appointed to represent unknown defendants or persons not in being who might have an interest in the proceeding, and the attorney on his behalf asserts that the testator having failed to provide for the contingency of the legatee's refusal to accept the bequest
subject to the condition, intestacy has occurred and, therefore, the fund escheats to the State.
These then are the issues: Is the "desire" of the testator that the residuary bequest be used for the purchase of a farm in a rural district a mandatory direction? If so, what is the effect of the refusal of the legatee to accept it because it considers the fund insufficient? Does the cy pres doctrine apply or did the testator die intestate with respect to the fund? If the latter, do the contingent residuary legatees take or does the fund escheat to the State?
The testator bequeathed $170,000 to his wife's relatives. He made gifts to his servants and employees. His general charitable intent looms large from various bequests to charitable causes and civic enterprises. Thus, he bequeathed $10,000 to Life's Fresh Air Fund; $10,000 to Tribune Fresh Air Fund; $5,000 to Grace Episcopal Church, Nutley, New Jersey; $5,000 to Nutley Social Service Bureau; $5,000 to Nutley Memorial Parkway; $5,000 to the Woman's Club of Nutley; $5,000 to First Church of Christ Scientist of Orange, New Jersey; $10,000 to the New York Association for the Blind. Furthermore, he manifested an extraordinary interest in animals. Under paragraph 1 of Article III of the will he made a general bequest of $10,000 to the league. In another paragraph he set up a trust fund of $20,000 for the care of his own pets, but unfortunately for them they did not live to enjoy the benefits. As previously stated, he then gave his residuary estate to the extent of $200,000 to the league for the purchase of a farm for animals.
Does testator's "desire" regarding the use of the residuary bequest constitute a precatory expression or a mandatory direction? Although willing to accept the legacy for its general purposes, the league declines to accept it with condition or limitation because it deems the fund insufficient. The contingent residuary legatees, in support of their contention that the direction is imperative, argue that the English rule has been followed in ...