Rabalsky v. Kook

Woodbury, J.

We are of the opinion that the will gives to the trustees a pecuniary legacy payable wholly out of the personal estate of the deceased. The trustees are Jewish religious officers resident in Palestine. The trust fund is to be used by them in Palestine for the benefit of Jewish institutions located there. The clause might be construed either as a pecuniary bequest or as a gift of both real and personal property, but in view of the obvious difficulties in the way of administering from Palestine a trust fund consisting in part of fractional interests in real property located in this state, as contrasted with the ease of administration of a fund consisting of money, it seems more probable that the testator intended a pecuniary legacy, and such a construction of his intention is to be adopted in the absence of persuasive evidence of a contrary intention. The executors are advised that the trustees are entitled to have their legacy paid from the personal estate left by the deceased.

At the beginning of the will and before any legacies are mentioned the testator was careful to provide for the payment of the bills of his last sickness, funeral expenses, and all bills owed by him at his decease. Obviously such bills and expenses are to be deducted before calculating the ten per cent due to the trustees under the will. The only difficulty arises in relation to the expenses of administration. Although no express mention of such expenses is made, his care to provide for the payment of his bills and funeral expenses and the language which he used to describe his obligations indicate an intention to include the expenses of administration with his personal expenses and bills. We are of the opinion that the value of the net estate, both real and personal, is to be used as the basis for determining the amount due to the trustees.

Case discharged.

All concurred.