95 N.Y.S. 433 | N.Y. App. Div. | 1905
Lead Opinion
The respondent- seeks to sustain the judgment appealed from by invoking thé aid of chapter 701 of the Laws of 1893, but in my opinion that law does not apply to the facts shown here, for the reasons that the bequest appears on its face' to be an absolute one, and 'no trust is attempted to be created by the provision in question. The trial court has, however, found that a trust was created as to the legacy, and that the association of which the plaintiff is president has full legal power to take and hold the same either absolutely or in trust, and has, therefore, awarded the plaintiff a money judg
It seems to me that under the authorities such a bequest does not create a trust, and if valid must be held to be intended as an absolute one. ’ (See Matter of Griffin, 167 N. Y. 71; Bird v. Merklee, 144 id. 544; Wetmore v. Parker, 52 id. 450.)
If the gift was intended to be an absolute one to the plaintiff’s society, the act of 1893 cannot be invoked to save it, because, as has been stated, that act applies only to gifts in trust for the purposes specified in the law.
There is ’still another reason why this judgment cannot be sustained. -
The society of which the .plaintiff is president is an unincorpo
No authority has been called to my attention holding directly that the act of 1893 changed the rule laid down in the cases last above cited and in many kindred cases, except Matter of Fitzsimmons (29 Misc. Rep. 731), but in that case the learned surrogate contented himself simply with the expression of his opinion that under the provisions of the law of 1893 the fact that a religious or charitable society was unincorporated did not prohibit it from taking an absolute bequest to it. It seems to me. that there is nothing in the statute that warrants the conclusion he reached. The statute saves a gift, grant, bequest or devise for religious, educational, charitable or benevolent uses from being invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries, and provides that if in the instrument creating the gift, grant, bequest or devise there is a trustee named to execute the same the legal title to the property shall vest in such trustee, and that if no person be named as trustee, then the title shall vest in the Supreme Court; but nowhere in the statute or in chapter 291 of the Laws of. 1901, which is the only amendment thereto, does it assume to give an unincorporated association power to take or hold such a bequest either absolutely or as a trustee'. For this reason it seems clear that the long dine of decisions made, before the enactment of the statute are still to be given full force and ' under which the plaintiff’s society is incapable of taking the legacy in question.
» Even if I am wrong in my conclusion that the legacy in question is not given in trust, and even if it could properly be held that by the will the legacy is given to the plaintiff’s society in trust for the benefit of some unnamed persons at Freeville, among whom the testator desired to promote the cause of spiritualism, that society being an unincorporated body is incapable under the law of acting as such trustee. Nor does its charter assume to give it any power to do so. Neither the society, therefore, nor the plaintiff as its president can maintain this action to compel the payment of the amount of the legacy.
Parker, P. J., and Houghton, J., concurred ; Smith, J., "concurred in result"in opinion in which Chase, J., concurred.
Concurrence Opinion
Under the liberal interpretation of the act of 1893 which the. courts have adopted, I think the will contains a trust for the purpose of sustaining the spiritualistic .meetings held at Freeville .under the auspices of the Central New York Spiritual Association. While I agree that the Progressive Spiritualists’ Association of Waverly, Tioga county, N. Y., is not authorized to act as trustee under the act mentioned, the trust, though indefinite, should nevertheless be executed under the supervision of the court by a trustee to be appointed.
Chase, J., concurred!
Judgment reversed and new trial granted, with costs to appellants ■to abide event.