154 N.Y.S. 65 | N.Y. App. Div. | 1915
This action, which was commenced on the 23d day of April, 1907, was brought for the construction of the will of plaintiff’s father, John H. Hughes, who died on the 22d day of November, 1887, leaving a widow and plaintiff but no other heir at law or next of kin, and to have certain legacies therein contained declared void, and to have it adjudged that the right to all unpaid legacies is barred by the Statute of Limitations,
The will and a codicil thereto were duly admitted to probate in the county of New York and letters testamentary were issued to the executors and trustees named therein on the 9 th day of December, 1887. The testator left both real and personal property; and the executors were authorized to sell the real estate.
The first judicial settlement of the accounts of the executors was made by a decree of the Surrogate’s Court on the 27th day of April, 1891, on their application. It appears thereby that the executors had sold the real estate and were charged with $16,318.68, the inventoried value of the personal property, and $71,974.20, the proceeds of the sales of real estate, including $6,852.29 “income,” aggregating $88,292.88; and were credited with loss on inventory, debts not collected, disbursements made as shown by Schedule 0 of their accounts, $34,985.77, and by Schedule E thereof $3,448.50, which schedules are not in the record now before the court, aggregating $38,629.10, leaving in their hands cash and securities aggregating $49,663.78. It was also found by that decree that the gross amount of testator’s estate at the time of his death was $81,245.78, and that his total debts were $24,993, leaving the net value of his estate $56,252.76, and that the amount lawfully distributable under chapter 360 of the Laws of 1860, among the churches, institutions and societies named in the will, was one-half that amount, or $28,126.38, which was in accordance with the rule prescribed in Hollis v. Drew Theological Seminary (95 N. Y. 166). The decree also fixed the commissions which the executors were authorized to deduct- and retain from the amount then remaining in their hands, and they were then directed to pay from the balance certain sums as an allowance to a special guardian and for costs, and to retain and invest $18,750.92, being one-third of the net amount of the estate, and to hold the same in trust to pay the income thereof to the widow during her life as directed by clause “First” of the codicil, by which that provision was made for the widow in lieu of dower, and to retain out of the
The 3d paragraph of the will provided that the respondent the Roman Catholic Orphan Asylum should receive the $5,000 set apart for the support and education of plaintiff during minority, if he died before attaining his majority; and the 2d paragraph of the codicil provided that plaintiff, if living at the death of his mother, should receive the principal set apart for her life use, and that in the event of his earlier death the Roman Catholic Prphan Asylum should receive $10,000 of it and the remainder should be “divided and distributed to and among the churches and societies ” named in the will. It is recited in said decree that the special guardian of the plaintiff, who was then an infant, reported to the Surrogate’s Court .that the testator had attempted to give to charitable uses imre than was authorized by said act of 1860.
The 18th paragraph of the will gave the residuary estate to various churches, institutions and societies, bequests and devises to which would be subject to the provisions of chapter 360 of the Laws of 1860 limiting such devises and bequests where the testator leaves a husband, wife, child or parent, to one-half of the net estate after the payment of debts. It
By the 18th paragraph of the will the testator gave, devised and bequeathed all the rest, residue and remainder of his estate, both real and personal, to his executors “ to divide and distribute the same to and among the several Churches and Societies hereinbefore named; share and share alike.” In the preceding paragraphs of the will five churches and five societies bearing the same name, but connected with different churches, are designated as churches and societies respectively; and five other institutions are named, viz., said Roman Catholic Orphan Asylum, ‘ ‘ Sister Eugenie, for the benefit of the Poor School connected with ” a church to which a specific legacy was given, “Mission of the Immaculate Virgin in Lafayette Place in the City of New York,” “Little Sisters of the Poor connected with St. Joseph’s Home ” in Seventieth street in the city of New York, and “St. Francis Hospital in Fifth Street in the City of New York.” By “St. Francis Hospital in Fifth Street” undoubtedly the defendant Sisters of the Poor of St. Francis which conducted the hospital was meant. (Johnston v. Hughes, 187 N. Y. 446.) Only eight of said fifteen churches, societies and institutions claiming to be residuary legatees have appeared and pleaded and only four have been shown by evidence or conceded to have been incorporated and competent to take bequests and devises, and even those have not shown that they had not theretofore taken all permitted by their respective charters or other laws.
It is contended in behalf of the plaintiff that four of these fifteen, namely, the Roman Catholic Orphan Asylum, Sisters of the Poor, of St. Francis, Little Sisters of the Poor, and Mission of the Immaculate Virgin, are not societies within the provisions of paragraph 18 of the will. The only provisions expressly relating to the Roman Catholic Orphan Asylum in the will and codicil are those contained in the 3d paragraph of the will and in clause 2 of the codicil, the substance of which has already been stated. The Roman Catholic Orphan
It has been assumed, without proof or concession, that some of said societies and institutions were not incorporated. The appellants contend that unincorporated societies cannot take, and such appears to be the law. (Fralick v. Lyford, 107 App. Div. 543; affd., 187 N. Y. 524; Owens v. Missionary Society of M. E. Church, 14 id. 380; Catt v. Catt, 118 App. Div. 750. See, also, White v. Howard, 46 N. Y. 144.) If, however, an educational or other charitable use is specified with sufficient definiteness, it may be that the said bequest to Sister Eugenie for the benefit of the “Poor School,” at least, with respect to which there has been no appearance, can be sustained on the theory that a valid lawful trust was created even though the “Poor
The decision provides that the residuary estate shall be equally divided among the residuary legatees who are duly incorporated, and that the residuary legatees who failed to prove their incorporation or capacity to take on the trial of the issues at Special Term may do so on the accounting, and then proceeds to divide the residuary estate into fifteenths on the theory that all churches and societies referred to in the residuary clause are entitled to take; and the interlocutory judgment directs that the residuary estate be divided among the fifteen churches, societies and institutions or “such of them as were incorporated at the date of decedent’s death.” These provisions of the decision and interlocutory judgment cannot be sustained. The beneficiaries competent to take the residuary estate take as tenants in common and only take a share of the residuary estate in proportion to the total number of beneficiaries designated; and where a beneficiary designated cannot take, the legacy passes as intestate property. (Matter of Hoffman, 201 N. Y. 247, 255; Booth v. Baptist Church, 126 id. 215; Matter of Kimberly, 150 id. 90.) In Chamberlain v. Chamberlain (supra) it appears by the reporter’s note at page 447 that on the settlement of the decree in that case the decision was so modified that one of the two residuary legatees to whom the residuary estate was given in equal shares was permitted.to take part of the legacy given to the other if the other was not entitled to take it all; but if such was the decision, it must be deemed to have been overruled by the later authorities herein cited. I am, .therefore, of opinion that the plaintiff is entitled to take the share of any beneficiary not competent to take, or not entitled to take, and, therefore, the interlocutory judgment should be modified accordingly.
It is also contended by appellants that the court should have decided which of the beneficiaries are incorporated and
The plaintiff appellant further contends that one-third of the estate was not set apart for the use of his mother, and that she did not receive the income of one-third, and that upon her death he did not receive the one-third. This argument appears to be made on the erroneous theory that the will required one-third of the gross estate.without deduction for debts to be set apart for the use of plaintiff’s mother. Manifestly the testator intended that only one-third of his net estate should be so - set apart; and such has been the construction of the will from the outset by decrees binding upon and acquiesced in by all parties.
The plaintiff also contends that the court erred in holding that the testator did not leave more than one-half of the property to charitable uses, and claims that an accounting is essential to the decision of that question. The court was right in holding as matter of law that the estate bequeathed and devised for charitable uses was not in excess of the amount authorized •by the statute. It could not be determined until the happening of the contingencies with respect to the two trust funds how
The plaintiff, appellant, alleged, in effect, that the residuary legacies became due and payable within one year from the first judicial accounting, which was on the 27th day of April, 1891, and he prayed that it be adjudged that the Statute of Limitations of either six or ten years is a bar to any right of the residuary legatees to payment of the legacies. The trustee did not presume to attempt to invoke the Statute of Limitations. Manifestly the plaintiff cannot invoke it, for no claim is made against him by the residuary legatees, and, moreover, he could not come into a court of equity as plaintiff and invoke it. (Matter of Rogers, 153 N. Y. 316; Pratt v. R. C. Orphan Asylum, 20 App. Div. 352; affd., sub nom. Conkling v. R. C. Orphan Asylum, 166 N. Y. 593; House v. Carr, 185 id. 453; Code Civ. Proc. § 413.) Furthermore, there is no merit in or precedent for this claim, and it is predicated on erroneous premises. It is manifest, and must have been perfectly well understood by all parties in interest, why the residuary legacies were not directed to be paid by the original decree, and all acquiesced in the assumption of the court of jurisdiction, in view of the provisions of the act of 1860, to direct the executors and trustees to hold the residuary estate until the happening of the contingencies with respect to the two trust funds. Eegardless of whether or not the court was authorized to make the decree, neither the plaintiff nor the trustee should be permitted to question it at this time, nor is it affected by the fact that the plaintiff was then an infant. He has not been prejudiced, for on no theory was he entitled to any part of the fund lawfully bequeathed or devised to a residuary legatee; and it would be unconscionable to permit him now to succeed thereto on the theory that such residuary lega
It follows, therefore, that the decision and interlocutory judgment should be modified in accordance with the views herein expressed so that the residuary legatees who are found to be competent to take and may take without exceeding the limitations prescribed by the Legislature on their powers so to do, shall each take one-fifteenth of the residuary estate, and in case á residuary legatee was not competent to take or could not take, the plaintiff shall take the one-fifteenth intended for such residuary legatee, and leaving all questions with respect to the competency and right of the residuary legatees to take and with respect to the validity of any residuary legacy on the theory of its being in trust for a sufficiently definite charitable use, if not to a corporation authorized to take, to be decided on the coming in of the referee’s report, and as so modified affirmed, without costs.
Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.
Judgment modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.