In re the Estate of Hill , 215 N.Y.S. 655 ( 1926 )

O’Brien, S.

In this accounting proceeding the accountant has submitted an instrument executed by the decedent and asks the court to determine whether or not it is a will. The decedent was the inventor of a certain “ matrix ” used in the printing, business. In the instrument in question, which he labeled an “ irrevocable will contract ” and wherein he stated, “ I have decided to commercialize the said contrast matrix,” he set forth terms under which the members of the International Typographical Union might share with him the proceeds of his invention. By its terms the contract would become effective immediately upon its acceptance by the International Typographical Union. The union determined that it had no legal right to enter into the contract and declined to become a party thereto. An instrument which is to operate in the lifetime of the donor and to pass an interest in his property before his death if accepted by the donee, is a deed or contract and not a will. A will is an instrument by which a person makes a disposition of his property to take effect after his death. (Matter of Diez, 50 N. Y. 88, 93; Gilman v. McArdle, 99 id. 451, 461; Younger v. Duffie, 94 id. 535, 539; Matter of Emmons, 110 App. Div. 701, 704.) That decedent did not intend that this paper should constitute his last will and testament is evidenced by paragraph 3 of section 2 therein which reads as follows: “ Fund A shall be deposited in trust for me subject to my order during my life-time, and subject, in the event of my death to the terms of a private will which I intend to make, one copy of which will be placed on file with Frank J. Kent, No. 271 Broadway, New York City, Ü. S. A.”

I hold, therefore, that the instrument in question is not a will. Submit decree on notice accordingly.