73 N.Y.S. 475 | N.Y. App. Div. | 1901
This action was commenced on the 27th day of May, 1899, by the Farmers’ Loan and Trust Company for a judicial settlement of its accounts as trustee under the will of James S. Gibbes, Sr., and to obtain a construction of certain provisions of the will. The testator was a resident of Charleston, S. C., and died in that city on the 26th day of April, 1888. His will with codicils annexed was duly .admitted to probate by the Probate Court of the county of Charleston on the 1st day of May, 1888. At the time of making the will, the testator had a wife, two sons, James S. and George E. and a grandson, J ames Gibbes Haile. The testator left him surviving his widow and his son James S. and said grandson, as his only heirs at law and next of kin, the son George E. having previously died. The widow died on the 2d day of May, 1888. The entire estate was of the value of about $600,000.
By the 7th section of the will the executors were directed to forthwith transfer and deliver unto the plaintiff as trustee securities amounting at their face value to the sum of $100,000 in trust, to pay the income thereof to the testator’s son James S. during his life. The 8th and 9th sections respectively contained similar directions with reference to the delivery of a like amount to plaintiff as trustee to pay the income of $100,000 to testator’s son George E. during his life, and of another $100,000 to testator’s said grandson. Upon the death of either of the sons or grandson leaving issue
After making certain bequests and leaving part of his estate In trust for the benefit of his wife, the testator provided in the 23d section of his will that the executors should transfer and deliver the rest, residue and remainder of his estate to the plaintiff as trustee to hold and pay the income thereof to each of his said children and grandchild during their lives respectively, and the income and principal thereof to be held in all other respects subject to the uses, trusts, purposes and limitations prescribed in said 7th, 8th and 9th clauses of the will respectively.
The testator’s surviving son and grandson both died without issue prior to the commencement of this action. We must, therefore, look to the 29th clause of the will to ascertain who are entitled to share in this residue of the estate, as that is the question presented.
At the outset the jurisdiction of the courts of this State over the ■ subject-matter of the litigation is challenged. It appears that all the parties have been personally served or have voluntarily appeared, and the appellant Amelia J. Emanuel is the only one who raises the jurisdictional question. She has appeared generally and answered. Her interest is as a beneficiary for life of one-third of the income of the residue after the payment of certain legacies. As already stated, the trustee is a domestic corporation and the fund is within this State. The trustee received the fund by virtue of the will of the testator, although it was delivered under an order of the court made in an action brought by the executors in South Carolina for instructions with reference to their turning the funds over to plaintiff as directed in the will. The order was in accordance with the clause of the will and contained no additional condition. The courts of
The 1st, 2d, 5th and 6th subdivisions of section 29 of the will provided for the payment from said residue of certain legacies which have been paid and are not in controversy. The 3d subdivision directed that $5,000 of said residue should go to Dr. Henry P. Gribbes, a son of testator’s uncle Reeves Gibbes, and the 4th that $50,000 should go to John Haile, testator’s son-in-law.
The first question relating to the construction of the will arises concerning these legacies. These legatees survived, the testator, but died before the happening of the contingency upon which they were to take under the 29tli section of the will. It is contended that these legacies, therefore, lapsed ; but the administrators of the legatees are parties to the action, and their claim is that the legatees took a contingent legacy upon the death of the testator which passed to them on the death of the legatees. It will be observed that neither at the time of the death of the testator nor at any time since was there any one in being as the issue of his children or his grandson in whom'this estate vested under either the 7th, 8th, 9tli or 22d sections of the will. We are, therefore, of opinion that the learned trial justice was right in holding that upon the death of the testator a contingent estate vested in the legatees, and inasmuch as no' issue was born to either of testator’s sons or his grandson it never became divested. (Clark v. Cammann, 160 N. Y. 315.)
The second question of construction presented by the trustee is as to the validity of the 7th subdivision of the 29th section of the will as subsequently modified or superseded by section 4 of a codicil duly made on the 12th day of May, 1885. This 7th subdivision is as follows:
“ To Charles O. Witte, Henry A. M. Smith and such person as may at the time be Mayor of the City of Charleston, seventy-five thousand dollars, to have and to hold the same in trust, for the*7 erection and endowment of an Art Gallery and Ladies’ Library in Charleston, and I empower said trustees to provide as they see fit and practicable for the future regulation and perpetuation of the same. Should any arrangement be hereafter made during my lifetime, whereby a building shall be erected on the lot on the northeast corner of Meeting and George Streets by the Art Union Association for its purposes, then I direct the said seventy-five thousand dollars to be by said trustees transferred to said Association under such agreement, for its future use and application to the purposes aforesaid as shall be sufficient and suitable.”
The 4th subdivision of the codicil is in the following language: “ I strike out and annul subdivision seven of section twenty-nine of my said will, with relation to the Art Union, and direct in lieu thereof as follows, viz.: In the event of the happening of the contingency referred to in said section, to wit: That there should be no descendant of mine, within the period limited, by law, to take my property, then I give and bequeath the sum of one hundred thousand dollars to the Mayor of the City of Charleston, at the happening of such contingency (and his successors in office) and Gabriel E. Manigault, Charles E. Simonton and F. W. Dawson to have and to hold the same in trust for the erection or purchase of a suitable building to be used as a hall or halls for the exhibition of paintings and for necessary rooms for students in the fine arts, a ladies’ library, and it might also be amalgamated with a Musical Hall for á conservatory of music. I think, with economical alterations, the present Mills House may be bought and altered to suit. I call on my fellow citizens to contribute fifty thousand dollars more to carry out my plan to cultivate and aid in educating the young of our beloved city in painting and music.”
It is contended by some of the appellants that this bequest is void for uncertainty and that it is imperfect and ineffectual under the laws of South Carolina which by an express provision of the will govern. It is claimed that in the 7th clause the trustees were invested with discretion to provide for the future regulation and perpetuation of the trust, as well as to provide for the erection of the art gallery and ladies’ library, and that significance should be attached to the phraseology of the 4th clause of the codicil giving the increased fund “ in trust for the erection or purchase, of a suitable
It is also claimed that this bequest is void as being in contravention of that provision of the Constitution of South Carolina (Art. 11, § 7), adopted in 1895, which provides that “ separate schools shall be provided for children of the white and colored races, and no child of either race shall ever be permitted to attend a school provided for children of the other race.” The bequest in question vested prior to the adoption of that provision of the Constitution, and by the express terms of the will its validity was to be determined by the law of South Carolina as it existed at the time of the testator’s death. It might well be, however, since the custody of the fund has not passed to the trustees, that if the purpose of the bequest was clearly in contravention of the Constitution, though subsequently adopted, the fund should not be delivered to the trustees; but it is not clear that the constitutional provision quoted relates to private schools ; and if it does, it by no means follows that the purpose of the bequest cannot be carried out. We fail to find that any school, within the ordinary acceptation of that term, is provided for or required to be established by the trustees. The trustees are directed to provide facilities for art students, but they are not required to provide teachers.
The third question of construction relates to- the 8th and last subdivision of section 29, which provides for the distribution of the residue of the fund as follows : “ One ■ equal third part of all the residue shall go to and be divided equally among the issue of my niece, Mrs. Josephine Emanuel per stirpes: Provided, that if she be living when the contingency on which this section may take effect shall occur, then and in that case the entire income thereof shall be paid her during her natural life, freed from the debts or control of any husband, and no division thereof among her issue shall be had until her death. The other two-thirds of said residue shall go to and be equally divided among the children and grandchildren of my brother Allen S. Gibbes, per stirpes.”
Mrs. Emanuel is still living. She is now fifty-five years of age and has never had issue. The trustee desires a decree of the court with reference to the disposition of the residue of which she is entitled to the income during her life. Objection is raised to the (court’s determining that question prior to her death. If that were the only purpose of the suit the objection would be well founded, ¡but the court having necessarily acquired jurisdiction at this time for the purpose of deciding other questions, there is no impropriety (in passing upon this question also, especially in view of' the extreme Jjmprobability that Mrs. Emanuel will leave issue. It is contended on the one hand that upon her death without issue this residue should be distributed as in the case of intestacy of the testator^ and, hence, would go to those who stood in the relation- of his next of kin to the testator at the time of his death, and, on the other hand, that the entire title vested in the trustees, and that by operation of law a trust will result upon the death of Mrs. Emanuel in
On this question the learned trial justice held otherwise, but in all other respects the decision is in accordance with our views. The facts being undisputed, the third conclusion of law should be modified, so as to provide that the next of kin of the testator at the time
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred ; Ingraham, J., concurred in result.
Judgment modified as directed in opinion, and as. modified affirmed, with separate bills of costs to all parties appearing separ . rátely to be paid out of the funds.
