Opinion
Decided June 28, 1934.
A gift to trustees of "ten per cent . . . of all the property, both real and personal of which I may die seized or possessed" was construed to create a pecuniary legacy payable wholly out of the testator's personal estate, in view of the foreign residence of the trustees, the required use of the trust fund in a foreign country and the consequent difficulties attendant upon their administering a trust of land in this state. In reckoning the amount of such trust estate the basis intended was the net value of the estate after deducting both the testator's personal liabilities and the expenses of administration.
PETITION, for instructions by the executors of the will of Harry Sussman.
The testator, after providing for "the payment of the bills of my last sickness and funeral expenses, and all bills which I may owe at the time of my death," gave and bequeathed to the defendant Kook and others "ten per cent, (10%) of all the property, both real and personal of which I may die seized or possessed of," in trust for charitable purposes.
At the time of his death the testator's estate consisted of both real and personal property.
The executors inquire whether the above clause operates as a pecuniary legacy of one tenth of his personal estate and a devise of one tenth of his real estate, or whether it is to be construed as a pecuniary legacy payable wholly out of his personal estate, and whether the ten per cent is to be figured on the net or on the gross value of the estate.
Transferred without ruling by Scammon, J.
Marvin, Peyser, Tucker Marvin, for the executors.
Samuel A. Margolis (by brief and orally), for the trustees.
Maurice Palais (of Massachusetts), for trustees for the heirs, furnished no brief.
Sleeper Perkins, for the heirs.
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.