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In re Will of Rosenthal

Supreme Court of New York, Appellate Division

February 16, 1954

In the Matter of the Construction of the Will of ABRAHAM S. ROSENTHAL, Deceased. JEAN L. TANBURN, Appellant; RHEA S. HOFFHEIMER et al., as Trustees under the Will of ABRAHAM S. ROSENTHAL, Deceased, et al., Respondents.

Page 317

Republished decision, February 17, 1954.

APPEAL from a decree of the New York County Surrogate's Court (COLLINS, S.), entered October 20, 1953, construing the will of decedent.

COUNSEL

Joseph M. Proskauer of counsel (J. Alvin Van Bergh, Charles Looker and Philip J. Hirsch with him on the brief; Jack M. Ginsberg, attorney), for appellant.

P. Hodges Combier of counsel (Wendell P. Brown and Samuel A. Hirshowitz with him on the brief; Nathaniel L. Goldstein, Attorney-General), respondent, in his statutory capacity under section 12 of Personal Property Law and section 113 of Real Property Law.

Page 318

Leo H. Hirsch, Jr., of counsel (Boyle, Feller & Reeves, attorneys), for Samuel R. Feller and another, as executors and nominated trustees under the will of Stephen A. Tanburn, deceased, respondents.

Francis S. Bensel of counsel (Albert B. Maginnes, Leonard A. Blue and Douglas A. Witschieben with him on the brief; Kelley, Drye, Newhall & Maginnes, attorneys), for Rhea S. Hoffheimer and others, as trustees under the will of Abraham S. Rosenthal, deceased, respondents.

OPINION

BOTEIN, J.

Petitioner appeals from a decree of the Surrogate construing the will of her great-grandfather.

That will divided the residue of the testator's estate into two equal parts, each to be held in trust for a term measured by two lives. It granted to petitioner's father (testator's grandson) the power to appoint by his own will the corpus of one of these trusts. In turn, by his will petitioner's father appointed the entire principal of the trust to petitioner. The donor of this power of appointment died in 1938 and the donee in 1952. Petitioner's interest in the principal of the trust has not vested, as the remaining life tenant is alive.

The construction sought is whether petitioner would forfeit her right to take under the appointment were she, contrary to a provision in the donor's will, to marry someone 'who was not born in the Jewish faith and who shall not be of Jewish blood'. She contemplates marrying a man named Kelley--concededly not of the Jewish faith. The learned Surrogate has ruled that if she marries outside the Jewish faith, she will forfeit her right to take as an appointee under her father's will.

There can be no doubt that the donor held strong views about intermarriage and that these views found expression in sweeping strictures prohibiting certain offending descendants or their spouses from taking under his will. The pertinent provisions of the will which, it is claimed, must disqualify petitioner should she marry Kelley, are found in Article Twelfth, and read as follows:

'Twelfth: Anything herein contained to the contrary notwithstanding, all legacies and devises and all powers of appointment or disposition under this my Last Will and Testament, given, devised and bequeathed to any child of mine or to any descendant of mine, are given, devised and bequeathed subject to the following express condition, that is to say: In case any child or descendant of ...


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