55 N.Y.S. 324 | N.Y. App. Div. | 1899
This appeal involves the construction of the last will of Joseph Wild, who died September 3, 1896, leaving a large estate, consisting entirely of personal property. The testator, after directing the payment of his debts, bequeathed to his wife a life estate in certain personal property, and then gave the residue of his property to his executors in trust to pay a number of annuities, with which
“Third. I give and bequeath to the various societies, associations, or corporations named below, for the general purposes or uses of said societies, associations, or corporations, except as I shall in any case otherwise particularly indicate, the sums hereinafter specified, and I direct, my said executors to pay the same out of my residuary estate, to wit: * * * To the Long Island Baptist Association, the sum of five thousand dollars ($5,000); * * to the orphanage founded, or to be founded, by the Long Island Baptist Association, under whatever name the same may be organized or incorporated, the sum of ten thousand dollars ($10,000). * * * And I. direct that the said several legacies or bequests herein made shall be paid over to the respective treasurers or other financial officers of the said several societies, institutions, or corporations, for the time being; and I do further direct that, in case the same should not be correctly given herein, that no legacy shall lapse or fail, on that account, but that the amount thereof may be paid over to the society, institution, or corporation designated or intended so to be, notwithstanding any misnomer thereof. * * *
“Ninth. In this, my will, I have disposed of my estate among those of my kin with whom it has been my pleasure to share my income, and also among such religious and charitable objects as it has been my pleasure from time to time to render assistance with my means, and with a careful regard to all persons and institutions who might reasonably have claims upon me; and it is therefore my will, and I direct, that in case any legatee or beneficiary under this, my will, shall contest the same, such person or persons so contesting shall receive nothing under this will, or out of my estate, and the legacy or legacies herein named to them are in each and every such case hereby revoked and annulled; and I hereby direct that this provision shall apply, not only to the person or persons who shall formally contest this will, but also to any and every other person who shall aid or abet such contest, or take any part therein.”
This action was brought for the construction of the will. One clause of the relief demanded in the complaint reads:
“(3) That it be determined whether the Long Island Baptist Association should receive the legacy of ten thousand dollars ($10,000) to the orphanage founded, or to be founded, by it, hereinabove referred to and set forth, or whether the said legacy fails, and falls into the residuary estate.”
Issues having been formed by the service of answers on behalf of some of the parties in interest, the action was referred to a referee, who made the report, upon which a judgment was entered directing that the Long Island Baptist Association was entitled to receive the legacy in question, and directing the executors to pay said legacy to said association, in accordance with the terms of the will. The appeal is taken from this judgment.
The appellants’ counsel contends that the bequest in the third paragraph, which reads, “To the orphanage founded, or to be founded, by the Long Island Baptist Association, under whatever name the same may be organized or incorporated, the sum of ten thousand dollars ($10,000),” is invalid. There are certain elementary principles in the construction of wills, a statement of which will assist our conclusion. Some of them are so elementary as hardly to need citation of authority. The basic rule is that the intention of the testator must be sought for and derived from the instrument itself, and carried out, provided it infringes no established rule of law. In construing a difficult provision, reference may be had to other provisions of the will
In Du Bois v. Ray, 35 N. Y. 162,167, the court said:
“Applying the doctrine of these cases to the clause of the will now under consideration, it is plainly our duty to give such a construction to the particular language used in it (if the same can consistently he found to have a doubtful or a twofold meaning) as will render the disposition made by the testator of his property effectual and consistent with his intention, rather than, by following a literal reading of it, thwart his intentions, and render nugatory and void the limitation.”
In Crooke v. Kings Co., 97 N. Y. 421, 434, Finch, J., said:
“It is our duty to harmonize and retain, so far as possible, all the provisions of the will; to reject no words of its maker except from imperative necessity; and to seek for all of them some force and operation.”
A similar doctrine is announced in Parker v. Butler, 76 Hum, 240, 27 N. Y. Supp. 805.
In Weeks v. Cornwell, 104 N. Y. 325, 10 N. E. 431, Earl, J., said (pages 336, 337, 104 N. Y., and page 433, 10 N. E.):
“So, in the construction of written instruments, courts will scrutinize the language used, and, however confused, uncertain, and involved it may be, will give it that construction which has in its favor the balance of reasons and probabilities, and will act upon that. The intent of a testator may sometimes be missed, but such is the infirmity of language and human judgment that such a result is sometimes unavoidable.”
The court, however, is not confined to the instrument itself, but may consider the circumstances which existed at the time of the making of the will, provided there are latent ambiguities in it; that is, ambiguities of such a character that the intent of the testator cannot be absolutely ascertained from the will itself. Mr. Jarman says:
“Though it is (as we have seen) the will itself (and not the intention, as elsewhere collected) which constitutes the real and only subject to be expounded, yet, in performing this office, a court of construction is not bound to shut its eyes to the state of facts under which the will was made. On the contrary, an investigation of such facts often materially aids in elucidating the scheme of disposition which occupied the mind of the testator. To this end, it is obviously essential that the judicial expositor should place himself as fully as possible in the situation of the person whose language he has to interpret; and, guided by the light thus thrown on the testamentary scheme, he may find himself justified in departing from a strict construction of the testator’s language, without allowing ‘conjectural interpretation to usurp the place of judicial exposition.’ ” 1 Jarm. Wills (6th Ed.) p. 428.
The Harvard Law Review for November, 1898, contains an instructive reference to a recent case in Pennsylvania, tracing the growth of the principle which permits parol evidence to explain ambiguities in a will. The supreme court of that state in Re Root’s
“The intent of the testator is the cardinal rule in the construction of wills; and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail, although in giving effect to it some words should be rejected, or so restrained in their application as materially to change the literal meaning of the particular sentence.”
With these principles in view, it is well to state the circumstances indicating the interest which the testator has expressed in the orphanage in question. He was a prominent member of the Baptist Church, and had been a messenger from the Greenwood Baptist Church, one of the beneficiaries named in the will, to several of the regular annual meetings of the Long Island Baptist Association, and especially to the one which was held in October, 1894, one month before the execution of his will. Some years before, a little girl had sent to the association five dollars, as a contribution towards an orphanage, and this was put by itself, forming a fund, to which, from time to time, other moneys were added, so that the fund at the time of the trial amounted to more than $200. The subject of an orphanage had been discussed at several annual meetings of the association which the testator attended, and a standing committee on orphanage was appointed in 1893, of which two of the executors named in the will, Robert B. Hull and Charles H. Butcher, were members. This committee made a report upon the subject, in 1894, and the subject was largely discussed at that meeting, to which, as already stated, the testator was a messenger. He had also conversed with his pastor, Dr. Hull, with regard to the orphanage, and Dr. Hull had recommended the orphanage to him as an object worthy of his beneficence. The project of building had not been taken up by the association, as it was then engaged in the erection of a building known as the “Baptist Home,” but there is evidence tending to show that the association intended to establish an orphanage in connection with its other work. It was doubtless for this reason that the testator used the words, “an
The evidence establishes beyond controversy that it was the desire of the testator to assist the enterprise of establishing an orphanage to be organized in connection with and through the Long Island Baptist Association, and to leave it a bequest; and that, in pursuance of that desire, he had executed a will containing a bequest of $10,000 to the orphanage to be founded by the said association. I think that we may assume that this intention is shown by the language of the will itself. If it were necessary, we might refer to the testator’s knowledge of the action of the association, in whose deliberations he had participated. Further emphasis is given to this conclusion by the fact that the testator, in the will which was executed shortly after the annual meeting, named three executors, one of whom was a member of the orphanage committee of the association, and that by a codicil made in March, 1896, he substituted, in place of one of the executors named in the will, Mr. Dutcher, another member of such orphanage committee. These facts manifest an intimate and trusting relation with the members of the association, and particularly with those whose membership of the orphanage committee allied them closely with the project to which the testator made the bequest under consideration. ■
Assuming then, as we do, that it was the intention of the testator to leave a specific bequest of $10,000 to the orphanage in question, it is our duty to discover, if possible, a method of effectuating that intention. There is no corporation corresponding with the definition of the bequest, and hence the money would fall into the residuary estate, unless we give force to other clauses of the will. One of them provides that the several bequests to charities “shall be paid over to the respective treasurers or other financial officers of the said several societies, institutions, or corporations, for the time being.” The treasurer of the Long Island
In the well-considered opinion of Mr. Justice Scripture at the Onondaga special term, in Allen v. Stevens, 22 Misc. Rep. 158, 49 N. Y. Supp. 431, he said (page 172, 22 Misc. Rep., and page 442, 49 N. Y. Supp.):
“The court may punctuate, and add, omit, or substitute words, in order to give effect to the actual intention appearing from the instrument as a whole, as by adding commas and relative pronouns, changing ‘and’ to ‘or,’ correcting plural into singular, transposing, inserting, and omitting,”—citing cases.
“To alter the language of a testator is evidently a strong measure, and one which, in general, is to be justified only by a clear explanatory context. It often happens, however, that the misuse of some word or phrase is so palpable on the face of the will as that no difficulty occurs in pronouncing the testator to have employed an expression which does not accurately convey his meaning. But this is not enough. It must be apparent, not only that he has used the wrong word or phrase, but also what is the right one; -and, if this be clear, the alteration of language is warranted by the established principles of construction.” 1 Jarm. Wills (6th Ed.) pp. 503, 504.
Under this principle, it is only needful to transpose some of the words of the will, and add a word, to make it read: “To the Long-Island Baptist Association, for the orphanage founded, or to be founded, by it, under whatever name the same may be organized or incorporated, the sum of $10,000.” It does not seem to me that violence will be done to the will by such changes. Indeed, it corresponds, in effect, with another provision of the will relative to the Greenwood Baptist Church, where thé testator, after giving a bequest of $3,000 to that church, added another bequest: “And to the said Greenwood Baptist Church, for the support and care of the poor belonging to the church, the sum of three thousand dollars ($3,000), which sum shall be paid over to, or placed at the disposal of, the deacons of the said church, for the purposes aforesaid.”
I am unable to distinguish this case from Lefevre v. Lefevre, 59 N. Y. 434, where an opinion was delivered by Allen, J. The court, per Folger, J., expressly concurred in the opinion of Judge Allen upon the proposition about to be stated, although it differed with him upon another proposition not involved in the case at bar. The court held that a misnomer or misconception of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision, if, either from the will itself or evidence aliunde, the object of the testator’s bounty can be ascertained. The action was brought to obtain the construction of the will of William C. Lefevre, which contained a provision giving a portion of the estate to the
“A stronger case could not well be made for relief against the consequences of a misnomer of an intended beneficiary under a. will. Of the intention of the testator to make the claimant the object of his bounty, and to contribute of his substance to the charities administered by it, there can be no doubt upon the evidence. A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision or defeat the intention of the testator, if, either from the will itself or evidence dehors the will, the object of the testator’s bounty can be ascertained. No principle is better settled than that parol evidence is admissible to remove latent ambiguities, and, when there is no person or corporation in existence precisely answering- to the name or description in the will, parol evidence may be given to ascertain who were intended by the testator. A corporation may be designated by its corporate name, by the name by which it was known and called by the testator, or by any name or description by which it can be distinguished from every other corporation; and, when any but the corporate name is used, the circumstances, to enable the court to apply the name or description to a particular corporation and identify it as the body intended, and to distinguish it from all others, and bring it within the terms of the will, may, in all cases, be proved by parol.”
In re Wehrhane, 40 Hun, 542, decided by the former general term of the First department, is a still closer case. It related to- a will which contained the following bequests: “To the Children’s Aid Society, city of New York, five thousand dollars; to the Newsboys’ Lodging House, city of New York, five thousand dollars.” It was proved that the Newsboys’ Lodging House was not incorporated, but was a department' of the Children’s Aid Society, and that its management was under the same board which controlled and managed the Children’s Aid Society, although separate officials acted and reported to that board. The court used language which has singular applicability to the case at bar (pages 544, 545):
“It is true that the society receives a donation also, and this may be said to be conclusive of the intent of the testator to make but one donation to the society, no matter what different forms or modes of administration it might have adopted; but this does not necessarily follow, for the testator had a decided interest in the Newsboy’s Lodging House, designated by him, and may well have given the sum mentioned for particular application to it, while the legacy to the parent society was intended for its general work throughout the*331 city, to be used in all the various modes in which aid could be extended to children, either through lodging houses or otherwise. The evidence, indeed, shows that he was in the habit of contributing especially to the Newsboys’ Lodging House, and was a constant subscriber to both the Children’s Aid Society and the Lodging House, after visiting the latter, and therefore knew of their relations to each other. For these reasons the decree of the surrogate should be reversed, as far as it relates to the legacy to the Newsboys’ Lodging House, the legacy there t.o be declared valid, and directed to be paid to the Children’s Aid Society.”
This brings us to the question as to the power of the Long Island Baptist Association to take the. legacy in question. The association was incorporated under chapter 319 of the Laws of 1848, formerly known as the “Benevolent and Charitable Act.” Corporations organized thereunder were authorized to receive real and personal estate for the purposes of their incorporation. The certificate of this association states among its objects “the erection of houses of worship, the efficient prosecution of missionary, benevolent, and Sunday school work, and the establishment and strengthening of Baptist churches, throughout Long Island.” An orphanage falls within the meaning of the word “benevolent,” as used in the certificate, and we entertain no doubt of the power of the association to take the legacy.
The policy of recent legislation in this state is towards upholding, as far as may be, bequests to such institutions. In Dammert v. Osborn, 140 N. Y. 30, 35 N. E. 407, O’Brien, J., intimates that chapter 701 of the Laws of 1893, entitled “An act to regulate gifts for charitable purposes,” resulted from the public dissatisfaction occasioned by the decision which the court of appeals felt constrained to make in the famous case of Tilden v. Green, 130 N. Y. 29, 28 N. E. 880. Section 1 of that act reads as follows:
“No gift, grant, bequest or devise to religious, educational, charitable, or benevolent uses, which shall, in other respects, be valid under the laws of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, bequest or devise there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee then the title to such lands or property shall vest in the supreme court.”
If there were any doubt respecting the validity of the bequest in question, such doubt would be removed by this statute which was in operation when the will was executed, and it might be our duty to give force to its provisions, even if it were necessary to suggest a resort to an appropriate proceeding to be instituted to enforce the trusteeship of the supreme court. But we think no such doubt exists, and that no such resort is necessary. We prefer to put our decision on the grounds already stated.
The judgment must be affirmed, with costs.
Judgment affirmed, with costs, payable out of the fund. All concur, except OULLEN, J., dissenting.
CULLEN, J. (dissenting). I doubt whether the provisions of the will of Joseph Wild, under review, can be construed as a gift to the
It is urged that the gift is to a specific legatee, to wit, a corporation thereafter to be incorporated, and that, as the will provides for no period of time in which the incorporation may be effected, the bequest contravenes the provision of law that personal properly must vest absolutely within two lives in being. I think this is too narrow a construction of the bequest. The essence of the gift was not to a corporation, but to a charitable use, to wit, an orphanage for the Long Island Baptist Association. The language is, “under whatever name organized or incorporated.” Had the association, at the time of the testator’s decease, itself, directly, and not through the medium of another corporation, maintained an orphanage, I think there could have been no doubt that such orphanage could be fairly said to have been organized, within the meaning of the will, and the association have taken the legacy. If it be assumed that it was the intention of the testator that a particular corporation should be incorporated to receive the legacy, the appellants concede that, had he directed the corporation to have been effected within two lives in being, the legacy would have been good (Burrill v. Boardman, 43 N. Y. 254); and I concede that, prior to the statute of 1893, the bequest would have been void for failure to provide such a limitation. I may also concede— though as to this there may be doubt (Williams v. Williams, supra, and Bird v. Merklee, 144 N. Y. 544, 39 N. E. 645)—that the statute against perpetuities applies to gifts to charitable uses, and that the act of 1893 has not taken such gifts without that statute. But the reasoning which has led the courts to hold that there must be an express direction
“The devisee and legatee was not in existence. The will contemplated its future creation, but by an independent authority, which neither the testator nor his executors could control, and which might for fifty years or forever refuse an act of incorporation. During all that period the power of alienation and the absolute ownership would be suspended, for.no person could convey a perfect and absolute title.”
In other words, the legislature might refuse the special act of incorporation; and the specific character and name of the legatee, the latter of which was to commemorate the testator’s bounty, were essential, if not controlling, elements of the testator’s intent; and it may well
The decree should be modified so as to adjudge that the legacy be paid to the Baptist Association upon trust to found an orphanage.