130 Misc. 1 | N.Y. Sup. Ct. | 1927
The plaintiff has brought this action as the heir of Anna B. Lockhart for the partition of certain real property situate in Warren county. Anna B. Lockhart died on June 19, 1922, without descendants, survived by her husband, Alexander Lockhart, and Calista Cotton and the plaintiff, her only heirs at law. She left a will dated June 7, 1922, in which the husband is named as executor. The will was probated in the Surrogate’s Court of Warren county on July 31, 1922. Prior to the commencement of this action Calista Cotton died intestate, leaving the plaintiff as her only heir at law. On June 3, 1926, the plaintiff conveyed to the defendant Lister an undivided one-half part of whatever interest she may have in these premises.
By the terms of her will the testatrix gave to her husband the use of all her property during his life and empowered him, in his discretion, to sell the whole or any part of it. The will also authorizes the husband, in the event that the income and interest should be insufficient for his needs, to use and apply any part of the proceeds of the property for “ his comfortable, proper maintenance and support.” After the death of the beneficiary the will made the following disposition of the remainder.of the estate: “After the death of my said husband, Alexander Lockhart, I give, devise and bequeath all that may then remain of my property, real and personal, whatsoever, unused by him and after deducting a sum sufficient to pay his funeral expenses and the expenses of his illness and for a headstone at his grave, unto Amherst Rebecca Lodge, No. 401, of Lake George, Warren County, New York, and the Grand Lodge of the Independent Order of Odd Fellows of the State of New York, equally, share and share alike, and I do hereby direct that said Grand Lodge shall use all the aforesaid legacy paid it for the maintenance of the Grand Lodge Home at Ithaca, New York, and credit the amount thereof to the Warren District.”
The total estate left by the decedent amounted to $47,473.39,
At the time of his wife’s death Alexander Lockhart was forty-nine years of age. He outlived her a period of three years, six months and twenty days and died on the 9th day of January, 1926, leaving a last will and testament dated September 27, 1923, in which the defendant Bessie Eldridge was named as executrix. His will was probated on February 2, 1926. His estate amounted to $3,851.51.
The defendant Amherst Rebekah Lodge, at the death of the testatrix and since April 18, 1908, was and still is an unincorporated voluntary association consisting of more than seven persons and was formed for charitable, benevolent and social purposes. The defendant Grand Lodge of the Independent Order of Odd Fellows of the State of New York is a domestic corporation and was created pursuant to the provisions of chapter 226 of the Laws of 1918. For over fifty years prior to its incorporation there had existed and was in operation an unincorporated voluntary association known as the Grand Lodge of the Independent Order of Odd Fellows formed and existing for charitable, benevolent, social and fraternal purposes.
The contention of the plaintiff is that although Mrs. Lockhart left a last will and testament purporting to dispose of her entire estate, she attempted to give more than one-half of it to benevolent and charitable organizations and consequently there was no valid disposition of the excess and that as to such excess she died intestate. In this action plaintiff alleges that the devise to the defendants the Grand Lodge and the Amherst Rebekah Lodge was in violation of section 17 of the Decedent Estate Law and void and also that the latter lodge, being unincorporated, is incapable of taking or holding real property. That statute, as amended by chapter 301 of the Laws of 1923, provides: “ No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more.”
It has been held that where a devise of real estate is invalid because the testator gave more than one-half of his estate to charitable institutions in violation of the provisions of this law heirs may maintain a partition action of that portion of the estate not carried by the devise. (Barber v. Terry, 224 N. Y. 334.) A person claiming as joint tenant or tenant in common, even though not in actual possession, may now maintain a suit for partition in which all questions of title affecting the entire property may be tried and adjudicated with the same effect as was formerly the practice in actions of ejectment. (Kellum v. Corr, 209 N. Y. 486.)
The defendants insist that section 17 of the Decedent Estate Law was passed for the benefit of the persons named in it and that the plaintiff, not being one of them, may not invoke its aid. It seems to me that this question is no longer an open one. The provisions of this statute may be insisted upon by any person who would derive a benefit therefrom although not one of the persons designated therein. (Harris v. American Bible Society, 2 Abb. Ct. App. Dec. 316; Robb v. Washington & Jefferson College, 185 N. Y. 485; Decker v. Vreeland, 220 id. 326.) The cases of Amherst College v. Ritch (151 N. Y. 282) and Allen v. Stevens (161 id. 122) upon which the defendants rely, when properly analyzed, are not in conflict with these views.
The defendants also assert that in determining whether the testatrix has given more than one-half of her estate to charity in violation of law the computation must be made solely upon the value of the life estate of Alexander Lockhart based upon his expectancy ascertained by the mortality tables. Plaintiff contends that because of the language of the will and because the question arises after the duration of the life estate has been demonstrated the actual fact must be taken as the basis of computation. The provisions of this section relate to the time of the death of the
Irrespective of which rule is to prevail in cases of this character, in the case at bar the question arises after the duration of the life estate has been demonstrated. In view of that fact and because the life estate of the husband under this will is coupled with an absolute power of sale and the right to consume the whole or any part of the principal necessary for “ his comfortable, proper maintenance and support,” it seems to me that the actual fact must be taken as the basis of computation. Here, the will permits the corpus of the estate to be used for the husband’s maintenance and support, if necessary. To what extent that might be depleted was wholly problematical at the death of the wife and hence the
The defendant Amherst Rebekah Lodge, being an unincorporated voluntary association or society, is incapable of taking or holding property by devise or bequest. (Owens v. Missionary Society of the Methodist Episcopal Church, 14 N. Y. 380; Mount v. Tuttle, 183 id. 358.) Section 113 of the Real Property Law (added by Laws of 1911, chap. 571) has made no change in this respect. (Fralick v. Lyford, 107 App. Div. 543; affd., 187 N. Y. 524.) The devise to the defendant Amherst Rebekah Lodge cannot be sustained as a legacy to the Grand Lodge. It will be noted that the bequest to the defendant Amherst, Rebekah Lodge is absolute, unconditional and not qualified or limited by any trust whatever. It is unaccompanied by any designation of the purpose to which it is to be applied. It is quite true that a bequest to a department of an incorporated society, which department is inseparable from the corporation and can only be made effective through it, may be upheld as a bequest to the corporation itself. (Matter of Isbell, 1 App. Div. 158.) There is no proof here that the defendant Amherst Rebekah Lodge is a department or branch of the Grand Lodge. It has a separate organization. Undoubtedly, it is its helper but not part of it. It nowhere appears that a gift to either would aid the other. There is nothing in the will to show that the testatrix intended that her entire gift should go to the Grand Lodge. In fact, the will indicates to the contrary. She made a distinct bequest to each to share equally and then expressly states that the Grand Lodge shall use its share of the legacy “ for the maintenance of the Grand Lodge Home at Ithaca, New York, and credit the amount thereof to the Warren district.” There is no proof to indicate that the activities of the two orders are the same. There is no evidence that the testatrix was a member of or identified with the activities of either the Amherst Rebekah Lodge or the Grand Lodge. The authorities that sustain a gift to a branch or an auxiliary go upon the theory that the deceased intended to name it as the legatee and in such a case the courts will not permit a legacy to be defeated by a misnomer. (Kernochan v. Farmers’ Loan & Trust Company, 187 App. Div. 668; affd., 227 N. Y. 658.) The defendant Amherst Rebekah Lodge not being able to take and the corporation of the Grand Lodge not being
It follows from this discussion that the plaintiff, the defendant Lister and the defendant Grand Lodge of Odd Fellows are the owners in fee as tenants in common of the real estate in question, the latter being entitled to an undivided two-eighths interest and each of the others to an undivided three-eighths interest therein. The interests of the other defendants in these premises are in no wise affected by this determination. Inasmuch as it is conceded that actual partition of these premises cannot be made, the plaintiff is entitled to the usual interlocutory judgment directing a sale of these lands.