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Matter of Estate of Emile Pfizer

Decided: January 19, 1954.

IN THE MATTER OF THE ESTATE OF EMILE PFIZER, DECEASED. ALBERT A. TEETER AND NATIONAL CITY BANK OF NEW YORK, TRUSTEES UNDER THE LAST WILL AND TESTAMENT OF EMILE PFIZER, DECEASED, PLAINTIFFS,
v.
LADY HELEN DUNCAN, ET AL., DEFENDANTS



Ewart, J.s.c.

Ewart

The complaint in this suit, as amended in the pretrial order and by orders entered October 29, 1952 and August 21, 1953, is in two counts. The first count seeks a construction of articles 7, 8, 9 and 10 of testator's will, which articles read as follows:

"SEVENTH: I give and bequeath One hundred thousand ($100,000) Dollars, to my Trustees hereinafter named, IN TRUST, NEVERTHELESS, for the uses and purposes following:

(1) To invest and keep the same invested and to pay or apply the net income therefrom (after payment of all necessary or proper costs and expenses of the Trust) to or for the benefit of NANA E. PFIZER, widow of my late brother, Charles Pfizer, for and during her life.

(2) Upon the death of said Nana E. Pfizer, to distribute the principal of said fund as it shall then exist (or upon my death if said Nana E. Pfizer shall have failed to survive me, to distribute the said sum of One hundred thousand ($100,000) Dollars) among the corporations entitled to receive the principal of the funds created under Clause NINTH hereof on the termination of the trusts therein mentioned and described and in the same proportions in which said corporations are entitled pursuant to Clause TENTH to participate in the distribution of said principal of such funds.

EIGHTH: I give and bequeath One hundred thousand ($100,000) Dollars, to my Trustees hereinafter named, IN TRUST, NEVERTHELESS, for the uses and purposes following:

(1) To invest and to keep the same invested and to pay or apply the net income therefrom (after payment of all necessary or proper costs and expenses of the Trust) to or for the benefit of my brother, GUSTAVUS PFIZER, for and during his life.

(2) Upon the death of my said brother, to divide the principal of the fund as it shall then exist (or upon my death, if my said brother shall have failed to survive me, to divide said sum of One hundred thousand ($100,000) Dollars, above mentioned) into two equal shares or parts; to pay the net income from one of said parts, to my sister, HELEN DUNCAN, and to pay the net income from the other of said parts, to my sister, ALICE BACHOFEN VON ECHT, for and during their respective lives, and upon the death of each of them, to distribute the principal of the fund held for her benefit among the corporations entitled to receive the principal of the funds created

under Clause NINTH hereof on the termination of the trusts therein mentioned and described and in the same proportions in which said corporations are entitled, pursuant to Clause TENTH, to participate in the distribution of said principal of such funds.

If either of my said sisters shall not be living at the date when such trust fund would have been established for her benefit as hereinabove specified if she had survived until that time, the moneys and/or property which would in that event have constituted said fund, shall be distributed as soon as may be practicable and convenient thereafter, among such corporations and in such proportions as provided in the last preceding paragraph hereof.

NINTH: I direct my Executors to divide all the rest, residue and remainder of my property and estate, both real and personal, of whatsoever kind or nature and wheresoever situated, into three equal shares or parts and to set over the same to themselves as Trustees and to hold and administer the said funds so created, IN TRUST, for the uses and purposes hereinafter specified, to wit:

(A) As to the first of said three funds, to invest and to keep the same invested and to pay or apply the net income therefrom (after payment of all necessary or proper costs and expenses of the trust) to or for the benefit of my brother, GUSTAVUS PFIZER, for and during his life.

(B) As to the second of said three funds, to invest and to keep the same invested and to pay or apply the net income therefrom (after payment of all necessary or proper costs and expenses of the trust) to or for the benefit of my sister, HELEN DUNCAN, for and during her life.

(C) As to the third and last of said three funds, to invest and to keep the same invested and to pay or apply the net income therefrom (after payment of all necessary or proper costs and expenses of the trust) to or for the benefit of my sister, ALICE BACHOFEN VON ECHT, for and during her life.

TENTH: On the termination of each of the trusts mentioned in Subdivisions (A), (B) and (C) of Clause NINTH above, I direct that the moneys and/or property then constituting the principal of the fund shall be distributed among the corporations named below, in equal shares:

NEW YORK ASSOCIATION FOR THE BLIND, ASSOCIATION FOR THE AID OF CRIPPLED CHILDREN, BROAD STREET HOSPITAL, ROOSEVELT HOSPITAL, GOUVERNEUR HOSPITAL, NEW YORK ORTHOPEDIC DISPENSARY AND HOSPITAL, MARIEN-HEIM OF BROOKLYN, BELLEVUE HOSPITAL (for its Tuberculosis Clinic), NEW YORK POST GRADUATE MEDICAL SCHOOL AND HOSPITAL (for its Skin and Cancer Unit), NEUROLOGICAL INSTITUTE OF NEW YORK (for its Treatment Clinics).

In case any of the three persons named as beneficiaries of the trusts created in Clause NINTH above, shall fail to survive me, then upon my death, the moneys and/or property which would have been set over to the fund which would have been established for the

benefit of said person pursuant to the terms hereof, if living, shall be distributed among the corporations mentioned and described in the last preceding paragraph hereof and in the proportions therein specified."

The second count seeks approval of the plaintiffs' account as trustees under paragraph "NINTH (A)" of testator's will, together with the allowance of commissions to the trustees and of counsel fees.

Emile Pfizer died a resident of Gladstone in Somerset County, July 19, 1941, leaving a last will and testament dated February 10, 1939 and a codicil thereto dated March 22, 1941, both of which were duly probated before the Surrogate of Somerset County on July 31, 1941.

Concerning the beneficiaries named in his will and with whom we have to deal in this suit, the following facts and information are pertinent:

(1) Testator's sister-in-law Nana E. Pfizer, mentioned in article 7 of the will, died February 18, 1953.

(2) Testator's brother Gustavus Pfizer, mentioned in articles 8 and 9 of the will, died March 30, 1944.

(3) Testator's sister Helen Duncan, mentioned in articles 4, 8 and 9 of the will, died March 15, 1953.

(4) Testator's sister Alice Bachofen Von Echt, mentioned in articles 4, 8 and 9 of the will, is still living.

(5) Of the ten organizations mentioned in article 10 of the will and referred to by testator as " the corporations named below ," it is conceded by the parties that Gouverneur Hospital and Bellevue Hospital are not and never were bodies corporate, but are institutions owned and operated by the City of New York. The other eight organizations mentioned in article 10 of the will were all corporations of the State of New York.

(6) Presbyterian Hospital in the City of New York, a corporation of the State of New York, is successor by consolidation to Neurological Institute of New York, body corporate, and also to New York Orthopaedic Dispensary and Hospital, body corporate, and it has been stipulated by the parties that the judgment to be entered in this cause shall

direct payment to the Presbyterian Hospital of New York, body corporate, of any shares bequeathed or devised by testator's will to the said Neurological Institute of New York and to the New York Orthopaedic Dispensary and Hospital, two of the organizations mentioned in article 10 of the will.

(7) New York Post Graduate Medical School and Hospital is one of the ten beneficiaries named in article 10 of the will. The parties have stipulated that the judgment to be entered in this cause shall direct the payment of the share of any bequests or devises made by the will to New York Post Graduate Medical School and Hospital to New York University, successor by merger and consolidation to the said New York Post Graduate Medical School and Hospital.

(8) Bellevue Hospital, one of the beneficiaries named in Article 10 of the will, is one of the largest hospitals in the country. It is not incorporated but is operated as an activity of the City of New York in accordance with the charter of the City of New York and has been in existence since some time prior to 1811 and has been operated, during all the period of its existence, at its present location along the East River from 23rd to 28th Streets, east of Second Avenue, in the Borough of Manhattan. It is a general hospital for the treatment of all types of cases, other than contagious diseases; and has a bed capacity of 3,064, included in which total are 499 beds used in connection with the tuberculosis clinic operated by said hospital.

(9) Gouverneur Hospital, one of the beneficiaries named in article 10 of the will, is not incorporated but likewise is operated as an activity of the City of New York pursuant to the charter of the city. It was opened and has been in existence since 1885. It is a general hospital situate on Gouverneur Slip in the Borough of Manhattan and has a capacity of 770 beds.

Both of the two hospitals above named are owned, operated and maintained by the City of New York.

It has been conceded by the parties that there are no other hospitals bearing the names Bellevue Hospital or Gouverneur Hospital.

The parties concede that the testator Emile Pfizer had been a patient at the Roosevelt Hospital, one of the beneficiaries named in article 10 of his will, at some time during the last few years of his life.

There are no proofs that testator was ever a patient at either Bellevue or Gouverneur Hospital.

The parties concede that the New York income tax returns of the late Emile Pfizer for the calendar years 1936 to 1940, both inclusive, reveal no deductions claimed for any gifts or contributions to hospitals or other charities. And there is no proof in the case that testator ever made gifts in his lifetime to or for the account of either Bellevue or Gouverneur Hospital.

The parties further concede that all money and funds used for the operation and maintenance of both Bellevue and Gouverneur Hospital have been appropriated by the city from general funds raised annually by taxation.

The City of New York represents, and no one has disputed the claim, that it has collected all legacies heretofore bequeathed to it by various persons (excepting the bequest under the Pfizer will), including some on behalf of its hospitals; that bequests and gifts are accepted by the city by specific resolution of its board of estimate in each instance; and that the city treasurer maintains a special account in which funds, including donations and legacies, are entered in its books of account as trust funds and are not commingled with general funds of the city but are used for the purposes specified by the donor or by the will.

The City of New York contends, and it does not seem to be disputed, that generally the services rendered by Bellevue and Gouverneur Hospital, including the tuberculosis clinic of the former, are rendered gratuitously as a public service because of the inability of the patients to pay for the same, although there are some cases in which the city does collect for such hospital services.

On May 3, 1948 the trustees paid $30,000 to Bellevue Hospital and another $30,000 to Gouverneur Hospital, charging $28,000 of the ...


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