205 A.D. 147 | N.Y. App. Div. | 1923
These are cross-appeals which call for the review of a decree of the Surrogate’s Court of the county of Columbia, construing the 26th paragraph of the last will and testament of Ida C. Potts, a resident of Columbia county, who died on or about the 19th day of November, 1921, leaving personal property of the value of $1,729,773.96, and also certain real property.
The 26th clause of the will directs the executors to organize and create “ as quickly as it can be done in accordance with the law,” a corporation, the purposes and objects of which shall be “ to construct, maintain and operate a hospital for the care and treatment of patients afflicted with tuberculosis.” The clause then gives the residuary estate to the executors in trust to receive and hold “ all of said property with all accumulations thereof ” until such corporation be'organized. It directs the executors to purchase land in Columbia county, N. Y., for the erection of hospital buildings. It provides that for the purchase of a site and the erection and equipment of buildings not more than $150,000 of the fund bequeathed shall be spent. It then directs that all of the residuary estate, over and above the sum of $150,000, be given to the trustees of the corporation to be organized and to their successors in perpetuity and provides that such sum shall constitute an endowment fund, the income from which shall be used for the maintenance and, operation of the hospital. It is apparent that the gift sets up a trust for the benefit of an indefinite and uncertain class; that the trust duties imposed upon the executors might
In the leading case of Williams v. Williams (8 N. Y. 525) the testamentary disposition considered was a gift to individuals in perpetual trust for the education, at a certain village academy, of the children of the poor. Although the trust was created for the benefit of an indefinite class6 and'was not limited by lives in being, nevertheless the gift was upheld. The court, per Denio, J., said: “ The result of my examination of the case is, that the law of charitable uses as it existed in England at the time of the Revolution, and the jurisdiction of the Court of Chancery over these subjects, became the law of this State on the adoption of the Constitution of 1777; that the law has not been repealed,' and that the existing courts of this State having equity jurisdiction are bound to administer that law.” The court also said: “ So far as my researches have gone, I have found no case or dictum, which would cast a doubt upon the validity of this bequest in the courts'in England, at any time during the century preceding the nineteenth day of April, 1775. Having adopted the common law of England, so far as it was applicable to our circumstances, and conformable to our institutions, the law of charitable uses is in force here.” The decision in the Williams case was expressly repudiated in Bascom v. Albertson (34 N. Y. 584); Burrill v. Boardman (43 id. 254) and Holmes v. Mead (52 id. 332). In those cases it was held that the English doctrine of charitable uses does not obtain in this State; that all testamentary gifts made for charitable purposes are subject to the rules in relation to indefiniteness and remoteness prevailing in the case of non-charitable gifts. The law so stood until the year 1893, when the Legislature enacted chapter 701 of the Laws of 1893, the provisions of which have since been made a part of the Personal Property Law (Pers. Prop. Law, § 12) and of the Real Property Law (§ 113). This act provided that no gift to religious, educational, charitable or benevolent uses should be deemed invalid by reason of the indefiniteness of the class of beneficiaries designated; that if the instrument creating the gift named a trustee to execute the same the title should vest in the trustee; that if it named no trustee the title should vest in the Supreme Court; that the Supreme Court should “ have control over gifts, grants, bequests and devises in all cases provided for ” in the act. The act contained no pro
The law of charitable uses does not protect a gift for a charitable purpose, made to take effect after a gift to an individual, upon a condition not necessarily to be fulfilled within the period prescribed by the rule against perpetuities. (Attorney-General v. Gill, 2 P. Wms. 369; Johnson’s Trusts, L. R. 2 Eq. 716; Merritt v. Bucknam, 77 Maine, 253; Merrill v. American Baptist Missionary Union, 73 N. H. 414; Perry Trusts [6th ed.], § 736.) The rule is explained in Odell v. Odell (10 Allen, 1, 7), as follows: “ And if a gift is made in the first instance to an individual, and then over, upon a contingency which may not happen within the prescribed limit, to a charity the gift to the charity is void, not because the charity could not take at the remote period, but because it tends to create a perpetuity in the individual who is the first taker, by making the estate inalienable by him beyond the period allowed by law.” This is the principle underlying Leonard v. Burr (18 N. Y. 96). In that case a testator devised to an individual the use of a certain parcel of land “ until Gloversville shall be incorporated as a village, and then to the trustees of said village, to be by them disposed of for the purpose of establishing a village library.” It was therein said by Judge Denio : “ By the terms of this devise the property,
On the other hand, if there be a gift to one charity with a gift over to another charity upon the happening of an uncertain and remote contingency, the law of charitable uses saves the gift. This was long ago determined in the case of Christ’s Hospital v. Grainger (16 Sim. 83). There the testator gave certain property to the Corporation of Reading for a charitable use, provided, however, that if the donees should fail for a year to perform certain acts, the gift should forthwith pass to the Corporation of London for the benefit of Christ’s Hospital. It was held that the gift over was good. Christ’s Hospital v. Grainger was affirmed (1 Mac. & G. 460, 464) where Lord Cottenham said: “ It was then argued that it was void, as contrary to the rules against perpetuities. These rules are to prevent, in the cases to which they apply, property from being alienable beyond certain periods. Is this effect produced, and are these rules invaded by the transfer, in a certain event, of property from one charity to another? If the Corporation of Reading might hold the property for certain charities in Reading, why may not the Corporation of London hold it for the charity of Christ’s Hospital in London? The property is neither more nor less alienable on that account.” In Halsbury’s Laws of England it is said: “ Nor has the rule against perpetuities any application to a gift over in a certain event of property from charity A to charity B, even where the event is the non-repair by charity A of the testator’s tomb. But this principle does not extend to cases where an immediate gift in favour of private individuals is followed by an executory gift in favour of charity.” (Vol. 4, p. 175.)
A gift to a charity not preceded by a gift to an individual is generally held to be valid, although a period greater than prescribed by the rule against perpetuities may elapse before the taker is empowered to receive the gift. In Attorney-General v. Bishop of Chester (1 Bro. C. C. 444), decided in the year 1785, the testator made a gift to trustees for the purpose of establishing a bishop in His Majesty’s dominions in America. Mansfield, for the defendant, contended that there being no bishop in America, or the least likelihood of there ever being one, the gift was void. Lord Chancellor Thurlow held that the gift was good and that the money must
An executory gift to a charity, without a precedent gift to private persons, upon the organization of a corporation to execute the charity, is held valid upon the theory that the general charitable purpose of the donor being immediate, a court of equity, having the power from the beginning to execute the charity in its own way, notwithstanding the fact that the donor’s method may cause delay, will regard the gift as immediate, involving neither postponement nor suspension. This theory explains why a similar gift made to follow a gift to private persons is held to be invalid. In that case the existence of an intent to make an immediate gift is conclusively denied by the act of the donor in interposing a prior gift. The theory is explained by Professor Gray as follows:, “ If the Court, however, can see an intention to make an
That the purpose of the testatrix in this case to make a charitable gift to a corporation to be organized under the name of “ The Potts Memorial Hospital ” was immediate cannot be doubted. Not only did the testatrix direct her executors “ to organize and create such a corporation as quickly as it can be done in accordance
The decree of the Surrogate’s Court should be modified, and as modified affirmed, with costs to each party who filed a brief, payable out of the estate.
Present — H. T. Kellogg, Acting P. J., Kiley, Van Kirk, Hinman. and Hasbrouck, JJ.
Decree of the Surrogate’s Court modified by striking therefrom the provision entitled second,” and by providing that all the provisions contained in paragraph 26 of the will are valid; and as so modified unanimously affirmed, with costs to each party who filed a brief, payable out of the estate.