In re the Estate of Christy

By decree dated September 29, 1959, the Surrogate determined that the gifts of the remainder of the residuary trusts created under paragraph ‘ ‘ Ninth ’ ’ of the will of testator exceeded the maximum permissible gift to charity under section 17 of the Decedent Estate Law. The decree further provided that to the extent of such excess the remainder gifts were invalid and as to such excess testator died intestate.

Application is presently made by the widow for an order adjudging and decreeing that she is presently entitled to such portion of the trust principal as represents her intestate share as of the date of the above-mentioned decree on the theory that there was a merger of her right to receive income with her right to receive the principal.

The application is denied. Where a partially invalid gift to charity is the remainder of a trust, those entitled to share gain no immediate benefit for they are not entitled to payment of the excess over the permissible gift to charity until the trust terminates (Matter of Mayers, 189 Misc. 700, affd. 274 App. Div. 918, affd. 299 N. Y. 388; Matter of Buck, 158 Misc. 111; Matter of Franklin Trust Co., 190 App. Div. 575; Matter of Gaubert, 158 Misc. 444). Settle decree on notice.