Opinion
April 3, 1954.
Alfred S. Pellard for Benedetta Goria and another.
In this probate proceeding a construction of certain paragraphs of decedent's will has been requested. By the second paragraph testatrix specifically devised premises No. 42-32 81st Street, Elmhurst, Queens County, to her daughter, Benedetta Onora, "on the express condition that it cannot be sold for a period of ten (10) years after my death." The purported restraint is void and may be disregarded. ( Livingston v. New York, Ontario W.R. Co., 193 A.D. 523.) The devise to testatrix' said daughter is held to be absolute and without restrictions.
In the seventh paragraph testator named her daughter, Anna Onora, now known as Anna Bosco, sole beneficiary of the income of premises No. 42-30 81st Street, Elmhurst, and then provided as follows: "It is my intention that upon the termination of the marital relationship between my said daughter, ANNA ONORA, and her husband, either through his death or by divorce, I devise the property located at No. 42-30 81st Street, Elmhurst, Queens County, New York, to my daughter, ANNA ONORA, to be hers absolutely and forever." Such provision is invalid and void as against public policy as it tends to induce testatrix' daughter to procure a divorce. ( Matter of Haight, 51 A.D. 310; Matter of Liberman, 279 N.Y. 458.) It will, therefore, be eliminated, and said Anna Bosco is determined to be the sole and absolute owner of said afore-described premises free of any restriction or condition. Submit supplemental decree construing the will and reserving the other questions for determination upon the accounting of the executors.