56 N.Y.S. 527 | N.Y. Sup. Ct. | 1899
S. Maretta Thrall died July 7, 1897. She left no descendant, husband, parent, grandparent, brother, sister, uncle, aunt, nephew or niece. Her nearest relatives are cousins, and the children or descendants of deceased cousins; these are numerous and both of her father’s and mother’s blood. She was the owner of considerable real and personal estate, the real estate having been acquired by inheritance from her father. Her will was executed June 17, 1897. By its terms she gave certain specific and general legacies to cousins on either side, and the sum of $10,000 to the Thrall Hospital of Middletown. On June 26th she executed a codicil, giving an additional sum of $10,000 to the hospital, and the sum of $30,000 to the city of Middletown, to be used in the construction of a public library building. On July 3d, she executed a second codicil containing among certain specific bequests a provision that in qase any of the legacies and bequests
The will and codicils having been duly admitted to probate in-Orange county, this action is instituted for judicial construction on the questions of the validity of the gifts to- the Thrall Hospital and the city of Middletown, their disposition in case of invalidity,, and the distribution of the proceeds, whether among the heirs-at-law as real estate and limited to the father’s side, or as converted into personal estate and including next of kin of the mother’s blood.
The legacies to the Thrall Hospital are void. That institution was incorporated in the year 1887, by virtue of chapter 319 of the Laws of 1848, entitled “ An act for the incorporation of benevolent, charitable, scientific and missionary societies.” The act was repealed by the passage of the Membership Corporations Law taking effect September 1, 1895, with the exception of section 6. That section provides as follows: “ Any corporation formed under this act, shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the
These legacies are, therefore, given by the express terms of the second codicil to the two executors, individually, equally and absolutely. After providing in the twelfth paragraph of that codicil for such a disposition of any of the legacies and bequests which-shall lapse or become void,or ineffectual to vest the gift in the persons or corporations named, the testatrix adds: “ It is my intention that the said Isaac R. Clements and Nathan M. Hallock shall take absolutely in equal proportions each and every legacy given and bequeathed by my last will and testament or the codicils thereto which bears date, June 26, 1897, which from any cause whatsoever shall lapse or be void or be ineffectual to vest the legacies in the persons or corporations named in the said will and codicils.” In the very recent cases of Fairchild v. Edson and Edson v. Bartow, 154 N. Y. 199, the will under consideration provided that in case any legacy “ shall lapse, fail or from any cause not take effect, I give and bequeath the amount which shall lapse, fail or not take effect absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions, leaving the same to them personally and absolutely, and without limitation or restriction:” This was held to constitute
The gift to the city of Middletown is valid. The city was incorporated by chapter 535 of the Laws of 1888. Section 1 enumerates among its corporate powers that “ it may take by gift, grant, bequest and devise, and hold real and personal estate in trust for any purpose of education, art, health, charity or amusement, for parks, gardens, the burial of the dead, the erection of statues, monuments, public buildings, or other public use, upon such terms as may be prescribed by the grantor or donor and accepted by said •corporation, and may provide for the proper execution of said trust.” The bequest in question is made in these words: “Third. I give and bequeath to the city of Middletown, in the county of Orange, and state of New York, the sum of thirty thousand ($30,000) dollars, to.be its and its successors forever, upon condition, however, that the said city of Middletown, N. Y. uses said moneys in building and constructing a public library building on the lot of land which said city owns, situate on Orchard street in said city of Middletown, N. Y., the said library building to be known as ‘ The Thrall Library Building.’ The said library building to be built in accordance with the plans and specifications which shall be approved by L. F. Olney of Mahwah, N. J., John W. Slawson and Frank J. Lindsey of Middletown, N. Y.; the said Olney, Slawson and Lindsey shall have the full charge of the planning, construction and building of the said library building
It is evident that the gift is for a strictly corporate purpose and it has been duly accepted by the city upon all the terms and conditions set forth in the codicil. It is claimed, however, that the gift is within the scope of the Act of 1848 and void because less than two months intervened between the execution of the will and the testatrix death. The statute has never been extended beyond the class of corporations included in its title, viz.: benevolent, charitable, scientific and missionary, and such other corporations chiefly religious and educational as by their charters are expressly subjected to all provisions of law in relation to devises by will. I find no case holding that the prohibition as to time extends to a legacy or devise to a municipal corporation. On the contrary, in Matter of Crane, 12 App. Div. 271, an analogous statute (chap. 360 of the Laws of 1860) was under consideration, and the reasoning of the court seems quite applicable here. The court said (page 276): “ This act applies to benevolent, charitable, literary, scientific, religious or missionary societies •— in other words, to a particular class of private corporations. It does not apply to the State, nor to individuals, nor to public or municipal corporations. The maxim ‘ expressio unius est exclusio alterius ’ is here applicable. It is true that the purpose of the act was as pointed out in Chamberlain v. Chamberlain, 43 N. Y. 440, ‘ to prevent .a person upon whom others standing in near relation had claims, from disappointing their just expectations and disinheriting them from pious or philanthropic motives.’ As a practical limitation upon such a purpose, the various societies, associations or corporations likely to be considered by one contemplating disinheritance, were enumerated and placed under the special prohibition. The object was not specifically to prevent a person from disinheriting those having claims upon him, nor to limit the power of disposition generally. The danger was supposed to be in the occasional
As to the proceeds of the sale of the real estate, I have reached the conclusion that there is no. such equitable conversion out and out as to change the character of the property for the purposes of succession, but that on the contrary the heirs are still “ entitled ” to such proceeds in case of sale. The whole theory of conversion rests upon the intention of the testator, and can only be invoked to aid, never to thwart, such intention. If the conversion is directed in order to carry out the purposes of the will and such purposes fail for any cause, or if after carrying out such purposes there remains a surplus, the property converted or the balance remaining will retain its original character. “ The important question,” said Judge Danforth, in Parker v. Linden, 113 N. Y. 37, “ is whether the direction for the conversion is, by the terms of the will, absolute and imperative, so as to be complete to all intents and purposes, or whether the conversion directed is for the purposes of the will only. If the latter, then if those purposes fail, or do not exhaust the proceeds, the property unapplied, whether the estate has been actually sold or not, will devolve according to its original character.” So, too, if the sale is directed for the evident purpose of more convenient distribution among those primarily entitled, no conversion will take place, however imperative and absolute may be the direction for a sale. Matter of Tienken, 131 N. Y. 391; Miller v. Gilbert, 144 id. 68. See also Chamberlain v. Taylor, 105 id. 185.
On the death of the testatrix her real estate descended to her heirs. Their title could only be divested by a devise to others, or by what is equivalent, by an imperative direction for a sale of the real estate and a distribution of the proceeds among others. “ A devise of the proceeds of lands directed to be sold by the executors is a devise of the land.” 86 N. Y. 210. “ It is a settled principle of law,” said the court in Chamberlain v. Taylor (page 193), “ that the legal rights of the heir or distributee, to the property of deceased persons cannot be defeated except by a valid devise of such property to other persons. Haxtun v. Corse, 2 Barb. Ch. 506, 521; Jackson v. Schauber, 7 Cow. 187, 195; Post v. Hover, 33 N. Y. 593, 597; White v. Howard, 46 id. 144; Hawley v. James, 16
To the same effect is Gallagher v. Crooks, 132 N. Y. 338. The court said (page 342): “ The clause in the will above quoted, by which the testator attempted to disinherit his brother, his wife and their descendants, does not defeat the right of these plaintiffs to the estate unless the persons to whom the testator attempted to devise the remainder were in existence. In case a testator fails to make a legal devise of his realty, or if having legally devised it the devise fails for any cause, the heir will inherit, notwithstanding there is an express provision in the will that he shall not take any part of the estate. There must be a legal devise to cut off the right of the heir to inherit; mere words of disinheritance are insufficient to effect that purpose. Haxtun v. Corse, 2 Barb. Ch. 521; Chamberlain v. Taylor, 105 N. Y. 185, 193; Fitch v. Weber, 6 Hare, 145; Pickering v. Stamford, 3 Vesey, 493; Johnson v. Johnson, 4 Beav. 318; 2 Jarm. Wills (Bigelow’s ed.), 841; 1 Redf. Wills (4th ed.), 425.”
The testatrix died intestate as to upwards of $40,000 of her personal estate, and the will and codicils contain no devise of her real estate. It follows from these decisions that the title to the latter vests immediately in the heirs, subject only to the right of the executors to'exercise the power of sale for the purposes of convenient distribution. It is contended, however, on behalf of the defendants who are cousins on the side of the testatrix mother, that the direction for a sale has converted the real estate into money, and that the direction to pay the proceeds to those entitled thereto is a devise pro tatito to all those, other than the heirs, who would have been entitled to share in the money had the deceased left the property in that form. The difficulty in the way of this construction is that there is nothing in the will indicating an intention to deprive the heirs of their title to the real estate or to devise any interest in it to others. If such intention is inferred it must be solely on the assumption that there has been an equitable
As was said by Judge Finch, in Matter of Tienken (page 409): “the rule of construction founded upon a gift flowing only from a direction to divide has many exceptions, and is to be used as an aid to ascertain the intention and not as a force to pervert it. I have observed in general that where it has prevailed it has been where no contrary intention was fairly indicated, and where its own force was somewhat strengthened and its indication corroborated by further facts. "We feel quite satisfied in the present case that the trust postponed only the period of enjoyment and the sale was intended to conveniently sev.ér the interests of those already entitled.”
As the heirs can only be deprived ¿f their fights and interests in the real estate by either an actual devise of the real estate itself to some one else, or by a direction to convert into money accompanied
The authorities cited in the briefs on behalf of the maternal cousins are numerous, and occasional remarks of the court would seem to support their contention. The facts characterizing the cases are essentially different from the one at bar. In all there will be found some form of devise, by way of trust or otherwise. There is nothing in any of them, however, in real conflict with the views herein expressed, and certainly nothing to the effect that a direction to sell real estate and pay over the proceeds to those entitled thereto of itself operates to destroy, impair or diminish the title of the owner by way of equitable conversion or on any other theory.
A decree will be settled on notice deciding that the deceased died intestate as to her real estate and as to the excess of her personal property after the payment of the specific and general legacies and the debts and testamentary expenses; that the legacy to the city of Middletown is valid; that the legacies to the Thrall Hospital are void and should be paid to the executors individually; that the real estate is vested in the first cousins of the deceased, being the children of her father’s brothers and sisters, subject to the execution of the power of sale; and that the personal property undisposed of by will is to be distributed among the next of kin of the deceased nearest in relation to her and in equal degree. Adee v. Campbell, 79 N. Y. 52.
Ordered accordingly.