Opinion
January 6, 1941.
Present — Lazansky, P.J., Johnston, Adel, Taylor and Close, JJ. [ 174 Misc. 268.]
In an action to partition certain parcels of real property constituting a part of the residuary estate devised and bequeathed to eleven named charities under the will of Caroline B. Sellew, interlocutory judgment, in so far as an appeal is taken therefrom, unanimously affirmed, with costs in favor of the parties appearing by separate counsel and filing briefs, payable out of the fund involved. New findings of fact will be made as follows: (1) That under the law of Pennsylvania, the consolidation in 1918 of the "Presbyterian Board of Relief for Disabled Ministers and the Widows and Orphans of Deceased Ministers" and the "Ministerial Sustentation Fund" effected a dissolution of both corporations. (2) That neither of the said corporations existed as a separate legal entity when the will was executed or when it took effect. (3) That since the date of said consolidation the work formerly done by the two original corporations has been continued in the form of separate departments or branches of the new corporation, now known as "The Board of Pensions of the Presbyterian Church in the U.S.A." We hold that the latter corporation is entitled, under the doctrine of cy pres, to the shares devised to the two corporations which had become extinct before the death of the testatrix. Although the gifts were in form absolute, they should be construed as gifts in trust for charitable uses. ( Prudential Ins. Co. v. N.Y. Guild for Jewish Blind, 252 App. Div. 493; Matter of Durbrow, 245 N.Y. 469, 477.) Where the named devisees become unincorporated bodies, constituting departments or branches of an existing corporation, the gifts should be made effective by awarding them, under the doctrine of cy pres, to the corporation for the benefit of such departments or branches. ( Kernochan v. Farmers' Loan Trust Co., 187 App. Div. 668; affd., 227 N.Y. 658; Prudential Ins. Co. v. N.Y. Guild for Jewish Blind, supra.) The directions of the twenty-second paragraph of the will make this disposition peculiarly suitable in the present case. It was plainly the intent of the testatrix that no charitable gift should fail by reason of the fact that the donee did not exist, or had ceased to exist, as a corporate body; and it was, therefore, provided expressly that in such an event the gift should pass to the controlling corporate affiliate. Appeal from decision dismissed, without costs.