136 N.Y.S. 922 | N.Y. Sur. Ct. | 1912
The will in this matter being duly proved and entitled to probate, the surrogate is required to sit as a court of construction, the validity and construction of a disposition contained in the will being at issue. Code Civ. Pro., § 2624; Matter of Davis, 45 Misc. Rep. 554; 105 App. Div. 221; 182 N. Y. 475.
The sole contested issue presents the validity of the will of the late Daniel Cunningham, or of the second clause thereof, dated 25 January, 1907, as follows:
“Second. I give and bequeath to my said executors and trustees, hereinafter named, the sum of fifty thousand dollars to be by them applied in their best judgment and discretion to such charitable and benevolent associations and institutions of learning for the general uses and purposes of such associations and institutions as my said executors may select, and in such sums respectively as they may deem proper.”
The eleventh clause of the will nominated the Rev. Louis J. Sloane and Daniel F. Mahoney to he “ the executors and trustees of this my last will and testament.”
The testator died on October 8, 1911, and his will takes effect as of that date. It is apparent that there are nominated trustees and some expression of a trust purpose in the will of Mr. Cunningham.
If the second bequest in Mr. Cunningham’s will is to be supported at all, it will be as a charitable use of trust. The supreme test of a charitable use is that it is public and for indefinite beneficiaries, personae incertae. If for definite persons, it is not a charitable use. It is singular that at this late day in so old and so prosperous a commonwealth as this, the
But when this point was reached there was unfortunately much uncertainty still left concerning the extent of the independent and ancient jurisdiction of the Court of Chancery, and concerning the common law power of the attorney-general to invoke the jurisdiction of Chancery in favor of an indefinite charitable use. Wheeler v. Smith, 9 How. Pr. 55; Fontain v. Ravenel, 17 id. 369; Bascom v. Albertson, 34 N. Y. 584, 592. After the New York Revised Statutes of 1830 abolishing all uses and trusts except four, known as “ express trusts ” (1 R. S. 728, § 55), there began in this state a series of litigations over charities which lasted for more than forty years. It would have been quite competent to hold that public and charitable trusts were not affected by the Revised Statutes. But the courts did not so hold. It is not an instructive picture which such contentions to the contrary present to the reader; indeed, these litigations furnish one of the most melancholy, if brilliant, pages in the judicial history of this state, and their total net result was the loss to the poor people of this state of many most important charitable foundations which would have been in the future of inestimable and permanent value to them. In the course of these litigations, the opinion on the original questions concerning the extent of the chancellor’s jurisdiction over charities and the inherent common law powers of the attorney-general to enforce them fluctuated and were finally lost sight of in the face of a major contention, viz.: Did the Revised
When it was at last finally held that- the Revised Statutes tolerated no express trusts or power in trust, unless they complied with the article of the Revised Statutes regulating uses and trusts, it followed that no charitable trust was valid in this state unless there was, (1) a definite and certain beneficiary; (2) a use and trust sufficiently worked out by the settlor to be capable of enforcement; (3) a limitation in trust, valid under the rules governing perpetuities. This, for the time being, put an end in this state to charitable uses. The authorities on these points are so familiar as to need no citation. The result was that in New York all schemes for permanent charitable relief for the benefit of the poor or other indefinite objects had thenceforth to take the form of gifts, grants, bequests or devises to charitable corporations, authorized to take and hold on such trusts, or else of gifts to individual trustees to convey to such corporations to be formed within a time permitted by the rule against perpetuities. Before these rules were fully established much litigation and confusion existed in this state on the subject of charitable donations, bequests and devises, with increasing loss to the cause of charity.
This very brief outline of the condition of the law of charities in New York up to the year 1893, will serve to show that it was too inelastic and not nicely adjusted to the well being ; f
• The present law regulating charitable gifts may be characterized by two attributes or characteristics, indefiniteness and perpetuity. It regulates something as indefinite as the poor or charity, and as perpetual as time itself. There remain, however, at the present time two great doctrines of the old Law of Charities, still quantitatively uncertain in this state, viz.: the extent of the application of that great maxim of construction, “ Charities are favored,” and of that other doctrine of courts of equity known as cy pres. The apparent inclination and tendency of the courts and the substantive law is to restore both to their former significance in the law governing charitable trusts. In St. John v. Andrews Institute, 117 App. Div. 714; 191 N. Y. 254, it was said distinctly: “ The policy of the law favors upholding charitable bequests,” although for a long time prior to the act of 1893 this had been in substance denied in this state. Matter of Prime, 136 N. Y. 347. The latest amendment to this statute under consideration, however, contains an express authority for the application of the doctrine of judicial cy pres. Laws of 1909, chap. 144. Thus, the present policy of the law to favor charities is unmistakable. Bowman v. Domestic & Foreign Miss. So., 182 N. Y. 498; Allen v. Stevens, 161 id. 123, 142. If the new legislation revives the
The act of 1893 and its present expressions on the statute book, already noticed, aid gifts, devises and bequests to certifies e uses, it is not aided by the acts “ to regulate gifts for charitable or benevolent.” Unless a bequest is to one or other of these uses, it is not aided by the acts “ to regulate gifts for charitable uses ” and its several re-enactments and amendments (Matter of Shattuck, 193 N. Y. 444), and it is subject to the general articles of the statutes regulating uses and trusts in this state.
There is and always has been a certain ambiguity about the term, “ charitable uses.” A use since the Statute of Uses primarily denotes a passive trust, converted by the Statute of Uses into a legal estate. But the older meaning and significance of the term “ use ” survives in the term “ charitable use,” which now means, and has always meant, a charitable trust. It is well known that charitable uses are never executed in possession by the Statute of Uses. This is a fact very important in the law of charities and one never to be lost sight of. The term use them in connection with the limiting word charitable is a. term of art. What was meant by the terms “ religious,” “ educational ” and “ benevolent ” uses, as first employed in the statute of 1893, is another question. A benevolent use may mean in law something larger than a charitable use, while religious and educational uses may be charitable or otherwise.
We come now in the light of the foregoing to the consideration of the subject of limitations of public or charitable uses and trusts at the present time. When are such trusts well limited by devise or bequest of charitable persons, and when
The jurisdiction of the present courts possessed of equitable powers are subject to definite limitations. Only the judicial powers of the lord chancellor of England were transferred to the former chancellor of this state upon our independence of the Crown, and from the chancellor such powers only devolved upon the courts now vested with a general equitable jurisdiction in this state. Such powers over charities as had accrued to the Crown as parens patries or general controller of' charities, and were exercised by the Crown by appointment under the king’s own sign manual, never belonged to the lord chancellor ex virtute officii, and consequently never devolved on the chancellor of this state or his judicial successors. It is unnecessary to offer citations upon such familiar and elementary propositions. That all the governmental powers of the Crown were sub modo invested in the corporate state of New York, upon the subversion of the monarchy, is also an elementary proposition. That it would be open to the corporate state, by its organic agent, the legislature, to exercise over charities the powers formerly exercised by appointment under the king’s sign manual, is no longer an open question. Mormon Church v. United States, 136 U. S. 1151, 1157; Griffin v. Graham, 1 Hawks, 96. But, until the legislature acts in the premises, it
It was a point perfectly well established by the old law once in force here, that where a bequest was given to charity generally and indefinitely without trustees or objects selected, the King was the constitutional trustee, and that he acted if at all by virtue of an appointment under the sign manual. Ommanney v. Butcher, T. & R. 270; Cary v. Abbot, 7 Ves. 490. We may throw out of consideration therefore all such defective bequests as were remedied by the action of the Crown, and consider when it was that equity had an independent power to supply defects in bequests to general charitable uses, for we may be sure that this is the present primary measure of equitable jurisdiction over defective charitable uses and trusts. If such jurisdiction has been since augmented it is by virtue of the recent acts of this state to regulate charitable gifts. These are very enlarging and powerful acts and to be given great attention in the future development of the law of charities. '
It has been stated in the last preceding paragraph that the present equitable jurisdiction of the courts does not embrace that power over charities which accrued to the Crown as parens patriae. What then is the excluded jurisdiction in question? It was perfectly well settled that it was only in cases where money was given to charity generally and indefinitely, without trustees named or objects selected, that the King was the constitutional trustee. It was not the generality of the trust purpose alone which occasioned the caducary succession of the Crown in such cases, but the omission by the settlor to invest
In this case it is apparent that Mr. Cunningham contemplated a charitable trust, and he did more, he appointed trustees for the uses contemplated. Therefore one element of equitable jurisdiction over charities, the intention to create a trust and an appointment of trustees, is present. The defect in his will, if there be any, lies in a defective expression of the trust purpose. There is also present in the bequest before us, a very evident intention on the part of Mr. Cunningham to deprive his heirs at law and next of kin of the sum of $50,000 out of his general estate, and to segregate it for charitable purposes. It would be manifestly a great pity if an intention so obvious is to be frustrated simply by reason of a defective expression of the trust purpose, for that is all there is in the contention against the trust. If the expression of the trust purpose, though charitable, is so ambiguous as to defeat interpretation, it must fail notwithstanding the recent legislation.
This contention then concerns the sufficiency of the expression of the trust purpose in Mr. Cunningham’s will. Those who stand for its invalidity rest largely, if not entirely, on the decision of the Court of Appeals in Matter of Shattuck, 193 N. Y. 446. This decision, it is claimed or argued to me, is
The present act (Pers. Prop. Law, § 12) has not relieved the subject of charities from all difficulties. The pleonastic use of the words “ religious, educational and benevolent uses ” in conjunction with charitable uses is confusing rather than clarifying to the law of charities. Williams v. Kershaw, referred to in Baker v. Sutton, 1 Keen, 232; Ellis v. Selby, 1 Myl. & Craig, 298; James v. Allen, 3 Mer. 17; Matter of Shattuck, 193 N. Y. 454. Some religious and educational uses are not public uses. The employment in the act of 1893 of the legal term, “ charitable uses ” only would, since the abrogation of the statutes against superstitious uses in this state, probably have been comprehensive enough to include with all former charitable uses all such religious or. pious uses as were public. Charitable uses standing alone in the act would, since the repeal of the Statute of Charitable Uses (43 Eliz., chap. 4), have denoted all those uses which were public or charitable uses before the statute of charitable uses (43 Eliz.) and probably including pious or religious uses. See Magill v. Brown, 16 Fed. Cas. 429, and note on p. 437, for a list of public or charitable uses. But this particular point need not be discussed at length in this case, as the will of Mr. Cunningham
As the will of Mr. Cunningham does employ only the words now authorized by the existing statute—charitable and benevolent—no ambiguity should for that reason be imported into the will itself, but some effect, consistent with statutory intention, should be given these terms if possible. What is now charitable is also benevolent. It was not formerly so. James v. Allen, 3 Mer. 17. Prior to the act of 1893 to regulate gifts for charitable purposes, it was well settled in this state after the year 1830, that no trust, charitable or private, could be supported unless the trust purpose was so clearly defined fey the settlor himself, as to enable the court to give effect to it by decree. Owens v. Missionary So. of M. E. Church, 14 N. Y. 406; Bascom v. Albertson, 33 id. 592; Prichard v. Thompson, 95 id. 76. To maintain that a limitation of a charitable trust, defective after 1830 and before 1893 under his canon of construction just noticed, remains still defective since the act of 1893, would be to forget the effect of the practical abrogation of charitable uses in this state between those years. It would beg the whole question as to the effect of the recent legislation in this state. The question now is, what bequests and devises to charity are sufficient in expression either by the common law or under the acts “ to regulate gifts for charitable purposes.” We have seen that at common law (which includes equity under the decision of Manning v. Manning, supra), there were decisions Which would uphold Mr. Cunningham’s bequest. If charity is the main purpose of a bequest, and the mode of its execution only is vaguely or defectively expressed, the trust should not be allowed to fail since the recent acts to regulate gifts for charitable purposes, if it is possible to avoid a result so detrimental to the public. Manley v. Fiske, 66 Misc. Rep. 388; 139 App. Div. 665; 201
As I read the opinion in Matter of Shattuck, 193 N. Y. 446, the decision is not decisive of Mr. Cunningham’s will. The trust fund in Matter of Shattuck was given to trustees to apply to educational and religious uses. No mention was there made of charitable uses. It was held expressly in Shat-tuck’s case that the gift there under consideration was not generally void by reason of the wide discretion of the trustees, or because the term religious use was not generically a public use, but because the gift as there expressed to religious uses required greater certainty than was contained in that particular will and because the words, educational use, as employed m that will, did not necessarily imply a public or charitable use, but permitted the trustees, if they chose, to apply the funds to private or nonpublic uses. Rothschild v. Schiff, 188 N. Y. 327. The part of the decision referring to educational uses proceeded on the ground laid down in Morice v. Bishop of Durham (before noticed). The vice apparent in the Bishop of Durham’s case was an incurable ambiguity. Down v. Worrall, 1 My. & K. 561. This principle there laid down was followed in Matter of Seymour, 67 Misc. Rep. 347; Matter of Compton, 72 id. 289, 292.
Obviously there is apparent also in the decision In re Shattuck a tendency to distinguish religious uses from public, educational, charitable and benevolent uses, and the court wisely will not undertake to supply a defect in so polemical a matter as the limitation of a religious use. This point was not novel (Matter of Scott, 31 Misc. Rep. 85, 87), and it. has been followed in Matter of Compton (72 id. 294). The decision In re Shattuck indicates, perhaps, the unwisdom cf
The question on Mr. Cunningham’s will is addressed to one point: Does the bequest include by necessary implication uses of a noncharitable kind? I do not think so. Only one of the positions laid down in Matter of Shattuck has any present application to this point, as there is no bequest at all in Mr. Cunningham’s will for religious uses. The only other point of that opinion applicable here has been again considered in
Mr. Cunningham’s will, as it has been stated above, gives-the sum of $50,000 to trustees “ to be by them applied in; their best judgment and discretion to such charitable and' benevolent associations and institutions of learning for the general uses and purposes of such associations and institutions as my said executors may select, and in such sums as-they may deem proper.” In Shattuck’s will there was no-specific bequest to charitable uses. Here there is evident a charitable purpose, and that purpose pervades and dominates-the entire bequest. That a private purpose or use is contemplated can only be reached by construction. Where two-constructions are possible that which most accords with the manifest intention and makes for validity must be accorded. A charitable use is necessarily a public use only, and the instant a court of competent jurisdiction holds that the use intended by Mr. Cunningham is charitable only, the trustee of the use are precluded from selecting any use not charitable or public, and they are liable for a breach of trust if they misapply the fund to any private or noncharitable purposes. The official construction removes ipso facto all ambiguity from the limitation; the use is charitable only and the trustees of the trusts are obligated accordingly. This effect is precisely that designed by the act of 1893 “ to regulate charitable -gifts,” as now amended. After a use in trustees is judicially declared public or charitable it is then for Mr. Attorney-General to see to it that there is no misapplication on the part of the trustees of the charitable “ use.” The court is not embarrassed here by an indefinite expression of a limitation of a religious use as it was in
That the bequest now under consideration is susceptible, under the proper rules of interpretation of charitable bequests, of any other construction than that laid down in Matter of Robinson, I cannot believe. The designation of several charitable objects and purposes by a conjunctive copula brings Mr. Cunningham’s will within the realm of charitable uses, and, that fixed purpose of testator being arrived at, must be held to dominate the entire limitation. The determination of the purpose as charitable by the use of the copula removes all ambiguity from the balance of the limitation. The limitation is as if it read, to such charitable associations and to such benevolent associations and institutions of learning as are charitable. Such was the doctrine really announced, in substance, I think, in Matter of Robinson. Had Mr. Cunningham’s limitation been in the disjunctive, to such charitable or benevolent institutions of learning, as his trustees selected, it would have been within the mischief noticed and condemned In re Shattuck. But Mr. Cunningham’s limitation is not in the disjunctive, and the fact tnau it denotes charitable and something more is not inconsistent with its denoting charitable only. The purposes prescribed by the testator are charitable, benevolent ana educational, not charitable or benevolent or educational. As expressed, the benevolent and educational purposes should be held to be charitable, and therefore public. This is the whole case on Mr. Cunningham’s will. It is an established principle
There is no difficulty in formulating a decree to enforce Mr. Cunningham’s bequest to charitable purposes. If the trustees should fail to appoint under Mr. Cunningham’s will, the court will resolve a scheme and appoint for them under the recent statutes in aid of charities, and quite independently of doctrines of. judicial cy-pres, which would in any event be adequate. A public charity given by devise or bequest need never fail again in this state if Mr. Attorney-General invoke, as he will do, the appropriate remedy.
The decree will provide that the second bequest of Mr. Cunningham’s will is a valid testamentary disoosition under the laws of this state.
Decreed accordingly.