103 N.Y.S. 740 | N.Y. App. Div. | 1907
Lead Opinion
George W. Oatt died on the 8th of October, 1905, leaving a last will and testament bearing date January 19, 1897, and a codicil bearing date September 20, 1905. This latter affects merely the details of the disposition of certain property, and need not be considered here. The testator devised certain real estate in Iowa to his mother and sister; made provision for disposing of his engineering and economic libraries, and provided in the 4th paragraph as follows:
“ Eourth. I give to my wife Carrie one-half of all my remaining property, both real and personal, absolutely, and do hereby give to her all the income from the other one-half during her life, and do constitute her a trustee of the said last half of my remaining property to keep and to hold the same during her life. At her death this l.ast one-half of my remaining ¡property shall then go to*744 the Iowa State College of Agriculture and Mechanic' Arts, to be used to found as many scholarships of one hundred ($100.00) dollars each as the income from the same will provide.”
He then provides that the fund shall be known-as the “ Geo. W. Catt Scholarship Fund,” and that the “ scholarships shall be given ti the most néedy students in the sophomore year, provided the student ranks above the average rank of the class as a. freshman in both scholarship and deportment; and these scholarships are to be continued through the remaining two years of the course if so voted annually by the Board of Award.” He provides that the treasurer of the college shall be the custodian of the fund, and outlines a board of award, the details of which are-not important here.
While the testator refers to his wife as a trustee of. this remaining one-lialf of this estate, it is clear that the only effect of this provision of the will is to give her a life estate in the property, becoming, by virtue of her possession of the same and the ownership of the income, a trustee for the remaindermen. In other words, she is a life tenant, with the duty of preserving the corpus of the estate for the benefit of those who are entitled to it at her death. The question to be determined is whether the Iowa State College of Agriculture and Mechanic Arts, or the heirs of the testator, constitute the remaindermen.
It is conceded that the Iowa State College of Agriculture and Mechanic Arts is not a corporation having the authority under its charter to take by devise or bequest. It is not a corporation of any character. It is not even a voluntary association of individuals for the purpose of carrying on an educational work. It is merely an institution conducted by the State itself, without any legal entity. If it were an unincorporated association, the authorities are uniform in this State that it could not take and hold property by deed or- Will. (Mount v. Tuttle, 183 N. Y. 358, 367, and authority there cited.) But it is urged that the testator was a graduate of the said college; that he knew that it- was a State institution, and that, gathering his intent thereby, this may be construed as a gift to the State of Iowa for the purposes pointed out in the will. The rule of construction, which calls upon the.courts to give effect to the intent of the testator, requires that the intent should be found in the language and purpose of the will- itself. We look in vain in the will
Unless it can be spelled out that the testator intended to make a gift to the State of Iowa, there is no possible ground on which the will in this particular may .be sustained. As we have already joointed out, such an intention is negatived by the language of the will. While the facts and circumstances surrounding the making of the will may be shown for the purpose of construing the language used, we know of no rule which would permit of showing the history of the testator for the purpose of establishing that specific ¡anguage, designating a trustee, was intended to mean something different.
But if it be assumed that the testator intended to make a gift to the State of Iowa, is that State qualified to take and hold real ‘ estate in the State of Uew York for the purpose expressed in this
It being established beyond controversy that an unincorporated association cannot take and hold property for the purposes of administering a charitable trust, even in the State of Iowa, it follows that the gift is equally open to objection, if the devise be construed to the treasurer of the college, which has no legal entity. It was held in Murray v. Miller, No. 1 (85 App. Div. 414; affd., 178 N. Y. 316) that a devise of real estate to the treasurer of an unincorporated religious association for its benefit was void. The beneficiaries under the original will in this case are the prospective students of the college. By the codicil this is modified, and the college itself is made the beneficiary as to a portion of the fund. The college having no legal existence, in the sense of being answerable to the beneficiaries through the intervention of the courts, its treasurer, as such, can have no powers higher than his official source, and the reason of the
It only remains to determine. whether the college can gain any rights under the provisions of chapter 701 of the.Laws of 1893. This is entitled,- “ An act to regulate gifts for charitable purposes,” and insection 1 provides: “Mo gift, grant, bequest or devise to religions, educational, charitable, or benevolent uses, which shall, in other respects, be valid under the laws of this State, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, bequest, or devise there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised, or bequeathed for such purposes shall vest in such trustee. If no person be named as-trustee then the title to such lands or property shall vest in the Supreme Court.” Section 2
The legislation of this State can have no extraterritorial operation, nor has this court any jurisdiction, or any tangible existence, outside of the geographical limitations of the State, and the Legislature could not have intended that it should be called upon to accept title to real and personal property for the purpose of administering a trust apart from its judicial functions. As the trustee of a trust to be administered in the State of Iowa, the court could have no existence, either to exercise its' own legitimate functions as a court, or to answer to the requirements of the courts of the State where the beneficiaries of - the trust are domiciled. The Supreme Court of this State, as a trustee in the State of Iowa, would be open to exactly' the same objections which exist to any other unincorporated association; it would have no legal existence there. The obvions'intention of the Legislature was not to provide for trusts of the character here attempted to be created for the benefit of the institutions of another State, but to foster permanent trusts, for religious, educational, charitable and benevolent purposes within
That is what is intended by this statute — nothing more and nothing less than to restore to courts of equity the power to administer trusts that were indefinite as to beneficiaries, as the law had been declared in Williams v. Williams (8 N. Y. 525). It did not undertake to validate trusts which attempted to vest property in unincorpoi’ated associations, or other legal nonentities, but simply to restore to the courts the power within this State to administer charitable trusts, which power had been taken from them by statute. In the will and codicil now before this court the testator has attempted to make the Iowa State College of Agriculture and Mechanic Arts, a legal nonentity, not only a beneficiary, but a trustee for itself as such beneficiary. A trust of this character is condemned alike by the courts of this State and those of the State of Iowa, and the statute of 1893 here under consideration does not operate to validate the provisions of the will under which the Iowa institution is claiming a benefit.
The plaintiff should have judgment declaring invalid the trust provisions of the will in so far as they relate to the Iowa State College of Agriculture and Mechanic Arts.
Lattghlin, J., concurred.
Patterson, P. J. (concurring):
I concur with my associates in the conclusion that judgment upon the submission of the controversy in this case must be directed for the plaintiff. Apart from the considerations which have induced
As I view it, the act of 1893 was not intended to confer uq>on an institution or body or association, otherwise incapable of receiving a testamentary gift, the power to take by direct bequest or devise, and where it indisputably appears, as here, that it was the intention of the testator that the gift should go to a particular distinct nominated party, -the act of 1893 does not empower the courts (to use the language of the Court of Appeals in Mount v. Tuttle) “ to modify or alter the directions of a testator,, but merely validates testamentary directions which before its enactment would have been void, and empowers the courts to enforce the execution of those directions.” The act of 1893 in its 1st section relates only to validating a gift, grant, bequest or devise to religious, educational
I find nothing in the act of 1893 or in the amendment of 1901 which gives power to an unincorporated association to take or hold such a gift as that intended by the testator in this case, either absolutely or as trustee. I am, therefore, of the opinion that this being a direct gift, demonstrably intended as such, the Iowa State College of Agriculture and Mechanic Arts cannot take.
Laughlin and Scott, JJ., concurred.
This section has been amended by chapter 291 of the Laws of 1901.— [Rep,
Infra.— [Rep.
Concurrence Opinion
I agree that neither the Iowa State College of Agriculture and Mechanic Arts nor the State of Iowa can take. Eliminating the codicil, I am inclined to the opinion that the will itself, under the law of this State as it now exists by virtue of chapter 701
The act of 1893, as construed in Allen v. Stevens (161 N. Y. 122), and kindred cases^ clearly revives the law of charitable uses,, Under the doctrine of charitable uses, as well as by the statute, the naming of a trustee is not a necessity. So too, under that doctrine, the giving of property for a charitable purpose creates a trust. In Moore’s Heirs v. Moore’s Devisees (4 Dana, [Ky.] 354) the rule is summarized as follows: “ Whereever a person by will gives property and points out the object, the property and the way it shall go, a trust is created. * * * When such a trust is created a court of equity will, support and enforce it even if the donor had appointed no trustee and had let the legal title go to his heirs; for it is well settled that where there is, a beneficial trust a court of equity will act as trustee, or appoint one if necessary, for effectuating the objects of the grantor.”
In Hornbeck's Executor v. American Bible Society (2 Sandf. Ch. 133) it was held that bequests f.or charitable purposes even to unincorporated societies can be sustained where the object is competent and is designated or may be clearly ascertained. The will, therefore, although it named no trustee, which was not a necessity, provides for a charitable bequest, which by virtue of its character must be deemed a trust for a certain object, to wit, scholarships for worthy and deserving .students of the college. The statute provides that the gift shall not fail for indefiniteness of the beneficiary. If the bequest be in trust, as it would seem it must be deemed to be, the beneficiaries are not fatally indefinite, nor as indefinite as in many of the cases, which I have been at some pains to collect, in all of which the provisions of the will were held to be valid and which are as follows: “ Education of the children of the poor ” ( Williams v. Williams, 8 N. Y. 525); “ Founding a scholarship ” for the preparation for the ministry of one of testator’s kindred, to be selected (Andrews v. General Theological Seminary, 8 N. Y. 559); “ For
The 'Massachusetts court in Jackson v. Phillips (supra) went even further and applied the ey pres doctrine, and distributed the bequests as near to the object of the testator as the court was able to determine — the conferring of which power upon the Supreme Court would seem to be the effect of the amendment of 1901 to the statute of 1893.
That the Court of Appeals recognizes the doctrine of the above cases as revived by the law of 1893, is illustrated by the remarks of. Cullen, Ch. J., in Moumt v. Tuttle (183 N. Y. 358), which are as follows: “ For example, we do not at present see why a legacy given by a citizen of this State, even to a foreign trustee in trust to distribute the principal or the annual income among poor clergymen in a foreign State, could not be upheld.”
If the foregoing observations be correct, the only question that would remain respecting the will itself, would be whether, the beneficiaries being foreign to this State, our Supreme Court would administer the trust for their benefit.
There are remarks in Chamberlain v. Chamberlain (43 N. Y. 424) which would indicate that it would not do so. The observation in the opinion in that case is as follows: “ The courts of this
It would seem, notwithstanding the broadness of the proposition quoted, that it has no application- to the administration of a valid, trust in this State, even though the object be a foreign' beneficiary Reference to the authorities cited for the proposition shows that Mr. Hill,
In another portion of the opinion in Chamberlain v. Chamberlain (supra) it is said: “ Bequests in aid of foreign charities, valid and legal in the place of their existence, will be supported by the courts of the State in which the bequests are made.”
This latter case is very extensively quoted in Hope v. Brewer (136 N. Y. 126). The point at issue in both of these cases was whether the courts of this State would, upon the doctrines of comity, permit a foreign State to take a bequest made here, invalid by the laws of this State, although valid by the law of the State to which it was to be transmitted, and both decisions were to the effect that it was no concern of this State whether its statute laws were violated with respect to perpetuity or capacity to take if the law of the State of domicile of the legatee did not forbid. This is the extent of the doctrine as recently reiterated in Robb v. Washington & Jefferson College (185 N. Y. 485).
If the bequest under the will is valid, it would be strange indeed that the courts of this State should permit the bequest to fail because the beneficiary chanced to be domiciled in a foreign State, The testator was a resident of this-State,- and if he succeeded in making a will in conformity with its laws his wishes should be respected and his desires carried out. 27or is there any practical difficulty in so doing. The court can appoint a trustee, at least, to aid it in carrying out the provisions of the will, and the income can be transmitted to the treasurer of the Iowa College of Agriculture and Mechanic Arts, who can pay it over for the benefit of such students as the board designated by the testator shall select. It can be very easily determined whether the selection is properly made and the money properly applied. All that is necessary to be done is that the money shall be properly invested and the income transmitted and a report of its application made, with proper vouchers in support of the same. As much certainty can thus be had as would be the case had the testator appointed some resident trust company his trustee for that purpose.
If there had been no codicil, therefore, I cannot see that the will would have been invalid, or that the courts of this State would have refused to carry it into effect. The only difficulty which I labor
From this consideration only I am constrained to concur in the decision that the will is invalid.
Judgment ordered for plaintiff as indicated in opinion. Settle order on notice.
See 4th Am. cd. p. *468.—-[Rep.