In re the Estate of Edwards , 446 N.Y.S.2d 551 ( 1982 )

Mahoney, P. J.,

dissents and votes to reverse in the following memorandum. Mahoney, P. J. (dissenting). I cannot agree with the majority’s conclusion that it was not the testator’s intention to terminate the bequest to Worcester Academy upon its becoming a coeducational preparatory school. In my view, this is precisely the event which the testator contemplated when he conditioned the school’s receipt of the trust’s net income upon its continuation as a preparatory school for boys. The disputed provision in the testator’s will conditioned the bequest to the school in two separate sentences. First, it provided that the net income of the testamentary trust continue to be paid to Worcester Academy “so long as the [school] continues to be operated as a boys preparatory school, preparing boys for college entrance.” Second, the will provided that Worcester Academy would become disqualified as a beneficiary and that the payment of the trust’s net income to it would stop “[i]n case the [school] ceases to be operated as a preparatory school for boys”. Thus, while it might be accurate to state that Worcester Academy continued “preparing boys for college entrance” even after the school began admitting girls in 1974, it strains the ordinary meaning attached to the words to say that the school continued to be “operated as a preparatory school for boys”. Unlike the phrase “preparing boys for college entrance”, which describes but a single activity of the school, the phrase “operated as a preparatory school for boys” describes the essential characteristic for which the school is recognized. If, as the majority holds, Worcester Academy can accurately be labeled a boys’ preparatory school simply because some of the students it prepares for college are boys, then the State University of New York at Albany could be called a men’s college because it admits men or a teachers’ college because it has an education program. Thus, by using a phrase which attempts to describe the very essence of Worcester Academy’s existence, i.e., “operated as a preparatory school for boys”, there was no need for the testator to further limit the phrase by use of words such as “solely” or “only” as suggested by the majority. Assuming that the testator did not want to terminate the bequest to Worcester Academy upon its becoming a coeducational school, only three other possibilities exist to explain the condition subsequent imposed in the will. It could be argued that the testator intended to disqualify the school upon the dissolution of Worcester Academy as a legal entity. Such an intention is inconsistent with language found elsewhere in the will’s disputed provision wherein alternate beneficiaries are specifically disqualified, if, at the time they become eligible to take, they are “not at that time in existence.” Another possible construction of the disputed provision is that the testator intended to disqualify Worcester Academy in the event that it ceased operation as a preparatory school, without regard to the sexual composition of its student body. The use by the testator of the word “boys” to qualify each use of the phrase “preparatory school” would be meaningless if that were the intent. Had the testator not considered the sexual composition of the school’s student body as a determinative factor in conditioning his bequest, it is highly unlikely that he would have used the word “boys” as he did. Finally, it is possible that the testator’s sole concern was that Worcester Academy continue to prepare boys for college, and that it did not matter to the testator that girls might also be trained in a coeducational environment. If this was the intent, the school would become disqualified only if it stopped admitting boys altogether and became a girls’ preparatory school. Upon examination of the will in its entirety, there is nothing to suggest that this possibility was the situation being guarded against by the testator’s conditional bequest. The Surrogate was in error, therefore, for not finding that Worcester Academy became disqualified as a beneficiary when it began admitting girls to the school. I would thus reverse the decree and remand the matter to the Surrogate’s Court for a hearing to determine which of the alternate beneficiaries is now entitled to the net income of the trust.