Opinion
August 29, 1958
Wainwright Matthews ( Charles T. Matthews of counsel), for petitioners.
Herbert E. Greene for Elizabeth Remsen, respondent.
Thomas J. Kearns and James A. Dunne, Jr., for Hugh J. Hardecker, respondent.
The last dispositive paragraph of testator's will reads as follows: "All the rest, remainder and residue of my estate, real and personal are to become part of my estate and such funds are to be divided between a list of sixty-five or more charities, equally as listed in my book of annual charity contributions which has been shown to my executor."
At testator's death, an unattested list of 53 charities was found by his executors. The record is barren of proof of its genuineness. (Cf. Matter of Fowles, 222 N.Y. 222, 232-234) and this paragraph must therefore fail as a testamentary disposition. ( Booth v. Baptist Church, 126 N.Y. 215.) Accordingly, the residuary estate of testator shall be distributed as in intestacy.
In view of the foregoing and the account herein as presented, section 17 of the Decedent Estate Law has no application to this proceeding.
The will being ineffective to change the terms of the Royal Arcanum policy (see Bellinger v. Bellinger, 180 Misc. 948, 951), the named beneficiary thereof has the absolute right to its proceeds to the exclusion of the executors.
Submit decree settling the account herein as submitted, and in accordance with the foregoing on notice.