36 Barb. 546 | N.Y. Sup. Ct. | 1862
By the Court,
All the personal estate of the testator, as the case shows, has been applied in payment of the legacies given by the will. The Baptist church mentioned in the will, therefore, if it can take at all, takes only the real estate. And it must be deemed to take it under and by virtue of the devise, as real estate. This church or society is a religious corporation duly organized under the act of 1813. By the revised statutes (2 R. S. 57, § 3) it is declared that “.no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter or by statute to take by devise.” It is entirely clear, I think, that religious societies incorporated under the act of 1813, are not expressly, or even impliedly, authorized to take lands by devise, for any purpose whatever, where such devise is made after their incorporation. By the fourth section of the act, the trustees are authorized, upon the incorporation of the society, to take into their possession, and custody, all the temporalities, whether the same consist of real or personal estate, and whether the same shall have been given, granted, or devised, to such church, congregation or society, or to any other person for their use. They are also authorized, by their corporate name or title, to sue and be sued in all courts of law and equity, and to recover, hold and enjoy, all the property and estates belonging to such church, congregation or society, in whatever manner the same may have been acquired, or in
But if the devise could be supported, I am clearly of the opinion that the trust must be held void, for the reason that the object of the charity is too vague and uncertain. If it were any other than a charitable trust, it would be clearly void for the want of any certain beneficiaries who could enforce it. But it seems to be now settled that a gift to a charity, if there is a competent trustee, although there is no ascertained, or ascertainable, beneficiary, may still be upheld, provided the charitable use is so clearly and certainly defined, as to be capable of being specifically executed and enforced, as intended by the donor, by judicial decree. This seems to be the conclusion from all the late cases in this state. (Will
By the terms of the will, the legacy, as the devise is termed, is to he kept by the church as a perpetual fund, on interest. “ And the interest applied for the purpose of remunerating the services of some faithful minister of Christ, and of the Baptist order, who shall he employed by the church, as their missionary, in preaching the gospel in the destitute distant regions of the west.” Although the interest of the fund is to he employed in remunerating the services of the minister to he employed as a missionary, the minister or missionary is in no respect the object of the charity, unless it he incidentally. He was intended to he a mere servant, or laborer, employed and paid to serve others, who were designed mainly to be benefited.
But where was to he the field of labor, and what race or class of people were designed to he the subjects of such missionary labor ? The field designated is “ the destitute distant regions of the west.”
Nothing could possibly-he more vague and uncertain than this. It must he in some western region or regions, and in such as were destitute and distant. I do not see how it is possible for any court, by a decree, to enforce and carry out this disposition. The field, and objects of the labor, could never he designated or directed; and if the court should undertake it, it could never he certain that it was fulfilling, in any reasonable degree, the charitable idea and disposition of the donor. He doubtless had some definite end and purpose in view, hut I think he has failed to express it in his will with sufficient clearness and precision to enable the court to decree its specific execution. For this reason, also, I am of the opinion that the trust is void. There can he no doubt, as it seems to me, looldng at all the provisions of the will, that the testator intended that the three legacies given in the will immediately preceding the residuary bequest, should be prin
It will be observed, that the testator knew when he executed the will that at the time these three legacies would fall due, there could be only .one thousand dollars of personal property which could be applicable to their payment, as he had expressly bequeathed all his personal estate, except that sum, and disposed of the interest of that sum also, together with the income of the real estate, thus intentionally leaving the real estate only, out of which the greater portion could possibly be paid. In addition to this, the residuary bequest or devise is of the whole remaining part, only, showing, as I think, very plainly an intention to give only the part which should remain after the other legacies were paid and satisfied. It is conceded that an intention to charge real estate is not to be inferred simply because legacies are given in a will, and the will afterwards contains a general residuary devise of real and personal estate. There must be something more, or the intention will not be rendered sufficiently apparent, to make the legacies a charge upon the real estate, thus devised. (Lupton v. Lupton, 2 John. Ch. 614. Tracy v. Tracy, 15 Barb. 503. Reynolds v. Reynolds, 16 N. Y. Rep. 261.) There is, however, much more than that here, and I think quite enough, taking all the provisions of the will together,
Johnson, Welles and Campbell, Justices.]