In re Nixon , 248 A.D. 373 ( 1936 )

Per Curiam.

We are of opinion that under the cy-pres power conferred upon the surrogate by section 12, subdivision 2, of the Personal Property Law he had authority to modify the terms upon which the bequest to the Metropolitan Museum of Art was made when it appeared that compliance therewith had become “ impracticable or impossible ” of literal fulfilment. (Matter of Judd, 242 App. Div. 389; affd., 270 N. Y. 516; Matter of Swan [St. John’s Church of Mt. Morris, N. Y.], 237 App. Div. 454; affd., 263 N. Y. 638; compare, also, Matter of Harrington, 243 App. Div. 235.) The cy-pres doctrine has been held to apply even where a trust in the technical sense is not created, but where, as here, there is a gift or bequest to a charitable corporation. (Sherman v. Richmond Hose Co., 230 N. Y. 462.) The application of the cy-pres doctrine necessarily assumes that the literal terms of the bequest or trust will not, because they cannot, be fully executed.

It is not decisive, therefore, that the disposition which has been made by the surrogate will result in a deviation from the terms of the bequest, if, as we believe, the general charitable intention of the testatrix is carried out. We think that intention has, so far as possible, been made effective by the decree of the surrogate, which results in the exhibition of so much of the bequest as can be saved, under the name of the testatrix in the Metropolitan Museum of Art.

Accordingly we hold that the surrogate had power to apply the cy-pres doctrine and, if .that be so, then the next of kin of the testatrix are not aggrieved by the manner of its exercise, to which all the parties who could have objected, including the Attorney-General as the representative of the public, have consented.

The decree should be affirmed, with costs payable out of the fund.

Townley, Untermyer, Dore and Cohn, JJ., concur; Martin, P. J., dissents and votes for modification.