105 Misc. 139 | N.Y. Sup. Ct. | 1918
The plaintiff is a substituted trustee under the last will and testament of one Marietta P.
The testatrix died on May 15, 1901, leaving a last will and testament which was thereafter duly probated, and which contained among other things the following provision:
“ I give unto Allen C. Beach of Watertown New York, and Walter B. Camp of Sackets Harbor, New York, or the survivors or successors of them, In trust one hundred shares of American Bank Note Company Stock, Also twenty seven shares of New York Central and Hudson River R. R. Company Stock, to be held in trust forever, The income and Interest each year, be used for the purchase of new Books works of Art for the Pickering and White Library in Chime Tower and care of the same, and for no other purpose whatsoever. Also thirty-nine shares of New Jersey Zinc Company Stock the income each year to be used to keep Chime Tower, and Bells in good condition and aid in playing said Bells at Sackets Harbor, New York.”
Allen C. Beach, who was named as one of the trustees, declined to serve as such trustee, and Walter B. Camp, the remaining trustee, having resigned, the plaintiff was duly appointed by the court as such substituted trustee on May ll,vl907, and duly qualified as such.
The evidence in the case shows that the trustee now has a large fund on hand arising from a surplus income of the trust estate. While the amount expended for the upkeep of the library has been less than $2,000 per year, the annual income from the American Bank Note Company stock and the New York Central stock mentioned in the will has been about $735 per year, and the annual income from the New Jersey Zinc Company stock therein mentioned is over $10,000. The trustee
To determine this question we must first consider the existent circumstances which surrounded the testatrix and which manifestly impelled her to make this provision. She resided at Tarrytown at the time of her decease and it is fairly inferable from the evidence that she was a person of large means. She was a native of Sackets Harbor and her early years were spent in that village. She entertained a kindly memory of the home of her childhood and had a desire to do something that would be of benefit to that .community. With this idea in view she had, prior to the year 1900, installed a chime of bells in the tower of the Presbyterian church. This church was burned down later and when it was rebuilt in the latter year the testatrix herself constructed a church tower in connection therewith in which she installed a new chime of bells. She also conceived the idea of establishing a public library in connection with such tower and chimes and had the same constructed with special reference to such uses. Having thus built the tower and installed the bells, she procured from the church society on November 12, 1900, an agreement which after reciting that she had constructed the tower and installed a chime of bells and was desirous of further placing a library of books and curios therein and to make provision for the same in her will, provided that the tower and land on which it stood and the contents thereof should never be sold or incumbered, but that it should be kept solely for the purposes aforesaid. Following the execution of this agreement and on December 27, 1900, she executed the will in question naming the benefaction she thus pro
In the next place it is well to consider the changed conditions that have resulted since the making of the will and the death of the testatrix. It soon became evident that the income of the trust fund which the testatrix directed should be used solely for the purchase of books and works of art and the care of same, was entirely inadequate for that purpose, as such income only amounted to $735 a year, and janitor service and salary of librarian alone amounted to nearly $900, while the 39 shares of zinc stock which the testatrix directed should be held by the trustees and the income used to keep the tower and chimes in good condition and pay for playing the same, with the advent of the European war rose most abnormally in value, so that in 1915 a stock dividend of 250 per cent was declared, making the total holding of the trustees 136% shares. This one-half share was disposed of and the balance of 136 shares retained in the trust fund, and in the year 1916 produced a dividend of 76 per cent on the whole 136 shares or total dividends thereon for that year of $10,336, and in the year 1917 produced dividends to amount of 45 per cent, or $6,256 in all. The trustee seems to have regarded the income from all the trust estate as a single fund, and from the same has paid janitor service and salaries of librarians, and has also purchased books for the library from time to time until no further purchases could be made on account of want of room in which to keep the same.
With the growth' of the library it has been found that the rooms now provided in the tower are utterly inadequate for the purpose intended. The rooms are small and of insufficient seating capacity; there is a complete congestion for want of room in which to
This selection of a subject for the charity of the testator is called the exercise of the cy pres power of the court, which means that the court in applying the charity proceeds as nearly to the expressed intention of the testator as possible. This cy pres power constitutes the peculiar feature of the English system of dealing with charities and is executed in determining gifts where the donor has failed to define them and in framing schemes of approximation to the donor’s design. It is merely a liberal rule of construction to ascertain the intention of the donor as it is the object of the law to ascertain and carry out such intention. 2 Perry Trusts (6th ed.), §§ 723, 726.
It proceeds upon the principle that it is the duty of the court to give effect to the general intention of the testator. If the particular mode of executing the charity fails, the court will apply one rather than permit the general charitable purpose to fall, so when a literal execution of the trust becomes inexpedient or
But when the purpose of the charity fails and there are no objects to which to apply the funds, the court must determine whether the charitable intention of the testator has come to an end and the fund must revert to the heirs or personal representatives, or whether there was a probable intention on the part of the donor that the gift should be applied cy pres the original purpose. If, therefore, it appears that the testator had a particular object in view and none other, and that purpose cannot be accomplished, the charity must fail and the next of kin will take. 2 Perry Trusts (6th ed.), §§ 723, 724, 725, 726; Tiffany & Bullard Trusts, 244, 247; Corbyn v. French, 4 Ves., Jr., 418, 433, and note; Attorney-General v. Pyle, 1 Atk. 435.
In the case of Utica Trust & Deposit Co. v. Thompson, 87 Misc. Rep. 37, I had occasion to speak of the rise and development of the law of charitable uses and said that its purpose was to abrogate the strict rule of the common law which condemned trusts, unless the beneficiaries were so named or identified that they had a standing in court to enforce the trust. That it had an existence in England as early as the Norman conquest and continued down to the time of the American Revolution. In such cases the Court of Chancery upon motion of the attorney-general or interested parties, assumed jurisdiction of the trust and directed a distribution of the charity as nearly as possible in accordance with the wishes of the donor. To that end a master would be appointed to devise a scheme for such administration and thus was brought into operation-what was known as the cy pres doctrine, whereby the administration of the
The ancient doctrine of charitable uses, together with the concomitant cy pres power of the court, being now the settled law of the state, I cannot see why it should not be applied in this case. There is a surplus income from the trust fund over and above what the will specially directs to be expended, and the court, in the exercise of its cy pres power, must determine what disposition should be made of the surplus, having regard to the probable intention of the testatrix. While the ancient practice was to refer the matter to a master to report a scheme to which the fund should be applied, the court can upon the evidence determine that fact unaided by a referee. Allen v. Stevens, 161 N. Y. 123, 142.
It is quite true that the will provides for two distinct funds and in a sense refers to two separate trusts, but they are each part of one single scheme in the mind of the testatrix, which was to provide for the care of the tower she had erected, secure the ringing of the bells, and establish and maintain a free public library therein. It is not supposable that having thus
That it also comes well within the cy pres power of the court would seem to be clear, for by reference to the adjudged cases we will find many instances where this power has been exercised in quite similar cases. A collation of some of the authorities upon this point may be found quite useful. A most instructive case is that of Attorney-General v. Dean & Canons of Windsor, 24 Beav. 679; 5 H. L. Rep. 369. The case involved the disposition of surplus income from lands granted by Edward VI for the support of the dean and canons and poor knights of Windsor. Henry VIII in his will had directed that certain crown lands should be conveyed to the dean and canons of Windsor of the yearly value of £600 for the purpose of saying masses over his tomb and to furnish alms for the poor and support for the poor knights of Windsor. His son and successor, Edward VI, accordingly made such a conveyance, the grantees covenanting to employ £600 of the income yearly in such manner as might be prescribed by the crown. His successor, Queen Elizabeth, nominated the poor knights of Windsor and determined the amount of income they should
In Attorney-General v. Corporation of Beverly, 15 Beav. 540, Sir John Bomilly, master of the rolls, again said that the rule of division of increased rents of charity estates was that where an estate was given with a direction for the donee to pay out of the rents certain payments, the donee took the whole beneficial interest subject to such payments. But if the donee was to take from the rents a specified sum for his-services, then the different charitable objects all participated in the increased rentals according to the amount originally given them.
In Attorney-General v. Minshull, 4 Ves. Jr. 12, the testator left his property in trust, the income to be used, forty shillings yearly in buying coats for poor men and women in the parish whom the trustees thought proper objects of charity, and that the residue
The case of Attorney-General v. Iron Mongers Co., 2 My. & K. 576; 2 Beav. 313, is a most instructive authority upon the subject and would seem to be directly in point. In that case the testator bequeathed all of his estate to defendant in trust to apply one-half the income yearly to the redemption of the British slaves in Turkey and Barbary and the remaining half to other charities. There were no slaves in Turkey .or Barbary to be redeemed and, a large surplus of income having arisen for this reason, Sir John Leach, master of the rolls, held that the court had no power to apply it to the other charities mentioned in the will, which had not failed, but upon appeal the lord chancellor, Lord Brougham, held differently and directed the surplus to be applied through the exercise of the cy pres power of the court. The lord chancellor said that the character of charities was impressed on the whole fund and there was good sense in presuming that had the testator known an object was to fail he would have given its appropriated fund to the increase of the funds which he directed to be paid to the other charities mentioned in the will. This, the lord chancellor said, was the foundation of the cy pres doctrine.
Attorney-General v. Marchant, 3 Eq. Cas. (L. R.)
Again, in Jackson v. Phillips, 14 Allen, 539, where a bequest had been made to trustees to be expended in circulating literature to create public sentiment against negro slavery, and afterwards slavery was abolished so that there were no objects specially designated in the will to which the charity could attach, the court denied the claim of the heirs that the fund reverted to the estate. The court construed the will as showing an intention on the part of the testator to establish a permanent charity for the benefit of the colored race and that it was his intention, in case the special purpose named in the will should fail, to apply the fund to the nearest similar use. The court, therefore, under the exercise of the cy pres power, sent the matter to a master to devise a scheme for that purpose, which was afterwards approved and the fund so applied.
Coming now to our own state, it will be found that the exercise of the cy pres power has been upheld by the courts since the enactment of the Charitable Uses Act in 1893, and especially since the amendment of 1901, which specially conferred such power on the court where conditions had changed since the making
It is, however, urged on behalf of the residuary legatees that the fund in question constitutes an unlawful accumulation and, therefore, falls into the residuary estate. I do not so understand the case. The will contains no direction for such accumulation and it merely results incidentally from the administration of the trust. The rule condemning such accumulations only maintains where the will expressly or impliedly authorizes the same. Livingston v. Tucker, 107 N. Y. 549 ; Matter of Stevens, 46 Misc. Rep. 623; Hill v. Guaranty Trust Co., 163 App. Div. 374, 376; Matter of Bavier, 164 id. 359; Matter of Langdon, 89 Misc. Rep. 333.
Matter of Kohler, 96 Misc. Rep. 435-442, is not applicable, as in that case only a certain amount of increase was to be paid to the beneficiary and the balance was undisposed of by the will, while here the trustees take the whole income of the trust estate for the purposes mentioned in the trust. It follows, therefore, that as the bequest is valid and has not lapsed, the residuary legatees have no standing in court to claim the accumulated income. Matter of Norton, 165 App. Div. 787, 789; Stewart v. Franchetti, 167 id. 541, 547; Matter of Groot, 173 id. 436.
My conclusion is that the provisions of the will in
The trustee should first obtain the permission of the Presbyterian Society of Saclcets Harbor to make such improvements and also extending the provisions of the contract of November 12, 1900, to such tower enlargement, and he should submit to the court the proposed plan for approval before proceeding with the work, with leave to apply to the court at any time at the foot of the decree for further instructions on the premises.
A decree accordingly should be made and, to that end, findings in accordance with this opinion may be prepared and settled before me on five days’ notice. All questions as to allowance of costs are reserved until settlement of the findings.
The plaintiff’s attorneys will serve a copy of this opinion with the proposed findings.
Judgment accordingly.