In re the Estate of Brazil

O’Brien, S.

This proceeding is brought for the construction of decedent’s will and particularly paragraphs “ fourth and eighth ” thereof. These paragraphs read as follows:

Fourth. “ I give and bequeath to Mrs. Mary Abbott Hanley, 57 Laurel Avenue, Arlington, N. J., the moneys which remain at the time of my decease in the Bowery Savings Bank; also the right to use the unused portion of my burial plot at St. Raymond’s cemetery.”

Eighth. “ All the rest, residue and remainder of my estate and property, both real and personal, of every description, wheresoever situated and in whatsoever the same doth consist at the time of my decease, I give, devise and bequeath to the St. Joseph’s Home for the Aged, under the charge of the Sisters of Charity of St. Vincent de Paul, now at 209 West 15th Street, Borough of Manhattan, New York City.”

Decedent died January 21, 1925. On February 5, 1921, he executed the will, portions of which are quoted above. This will was duly admitted to probate on February 10, 1925. The provisions in question are clear and definite but a question of construction has arisen out of the following facts: Decedent on July 10, 1910, opened two accounts in the Bowery Savings Bank, viz., .the first in trust for Mary McDonald, his niece, and the second in trust for John A. Hanley, his cousin. At the tune of his death the balance to the credit of each of these accounts was $1,585.64. It is contended on one hand that decedent created irrevocable trusts when he opened these accounts which except the drawing of interest remained intact down to his death. On the other hand, it is urged that the trusts created by decedent were tentative and revocable at any time during testator’s lifetime by a direct disaffirmance of the trusts or by some decisive act or declaration, and further that the provisions in said will constituted such a disaffirmance. This latter contention is the correct view (Matter of Totten, 179 N. Y. 112 ), and I hold that the moneys on deposit in the Bowery Savings Bank to the credit of testator should be paid to Mary Abbott Hanley, the legatee named in paragraph “ fourth ” of testator’s will. The objection raised by the Bowery Savings Bank that this court is without jurisdiction to determine the ownership of the funds in said bank is overruled. Submit decree on notice accordingly,