166 Misc. 486 | N.Y. Sur. Ct. | 1938
Deceased died on July 5, 1923. His wife predeceased him. He left only cousins as his nearest kin. His will, dated January 30, 1914, directed that the major part of his estate be devoted to charitable purposes. The residuary estate is bequeathed to the trustees of Tufts College. The paragraphs of the will here in question are the fifth and fourteenth which are as follows:
“ Fifth. I direct that one hundred thousand dollars ($100,000.00) be set aside for the establishment and maintenance of a hospital, to be located in the Town of Franklin, Massachusetts, and to be known as The Fletcher Hospital; and that the said sum shall be turned over to the proper trustees as soon as they shall be legally capacitated to receive it and the previous bequests in this my last will and testament shall have been provided for. I direct that not more than two-fifths (2/5) of the principal be expended for buildings and equipment, and at least three-fifths (3/5) be held as a trust fund and invested in securities, which trustees may purchase with trust funds under the laws of the State of Massachusetts; and I direct that the income only shall be used for the maintenance of said hospital.
“ I direct that said Hospital shall be incorporated as soon as may be after my death.
“ It is my will that this hospital shall be open to all under such terms and conditions as its Board of Directors shall deem wise and prudent; and that it shall be controlled by members or attendants of Protestant Churches.
“It is my wish that this fund may be allowed to accumulate within the lawful discretion of the Board of Trustees, and that they may buy suitable land, and complete the Hospital building within ten years from the time of my death, it being my purpose that under any circumstances this Section of my will shall not be considered as giving directions contrary to law as it is, or as it may be, at the time of the execution of this trust.
“ Fourteenth. Should any of the bequests made in this my will, for any reason, be declared illegal or inoperative, I make a bequest or bequests of the same amount or values to Charles S. Chadwick, to be his and at his disposal.”
The Trustees of the Fletcher Hospital was incorporated under an act of the Legislature of the Commonwealth of Massachusetts (Laws of 1924, chap. 429) for the purpose of constructing and maintaining a hospital in the town of Franklin, Mass., and for the purpose of receiving, holding and expending such sums as might be received by it from the estate of deceased and from outside sources for the purposes of the corporation.
In the fourteen years which have elapsed since deceased’s death, no action has been taken by the hospital corporation toward acquiring land or constructing a building for hospital purposes. Income has been allowed to accumulate on the fund during the entire period. The corporation has received two small bequests from outside sources. The total amount in the corporation’s treasury is approximately $150,000 and is constituted of the bequests from outside sources, the original capital of the gift under the deceased’s will and the accumulated income. The facts stipulated make it clear that the present fund is insufficient to build, equip, maintain and operate a modern fair-sized hospital. It is also apparent in the circumstances here that it would be impracticable and would serve no useful purpose to build and maintain a small emergency hospital for which the corporation asserts the fund is sufficient. The hospital corporation determined to invoke court application of the cy pres doctrine and to seek to benefit the residents of Franklin, Mass., by distributing the income to other hospitals in towns immediately adjoining the town of Franklin to be used primarily for the benefit of the residents of Franklin.
Upon being informed of this purpose, Charles S. Chadwick, the legatee named in paragraph fourteenth of the will, commenced this proceeding to reopen the decree of May 25, 1926 and to declare the bequest in paragraph fifth to be inoperative and, therefore, payable to him. He does not contend that the bequest is in any way illegal. It is his contention that the word “ inoperative ’’ as used in paragraph fourteenth was intended by deceased to apply to the situation here; that is, to an inability to administer the fund in the precise
The question remains whether, as the petitioner contends, the fact of inability to build and maintain a hospital has rendered the bequest “ inoperative ” within the meaning of the provisions of paragraph fourteenth. It must also be determined whether (if it be held that the bequest has become “ inoperative ”) the petitioner is entitled to the fund. To sustain his claim to the fund petitioner must show that the principal object of deceased was to establish and maintain a monument to his name and that this object transcended in importance his desire to benefit the residents of Franklin. Except for gifts of personal effects, of $30,000 to relatives by marriage, and of $20,000 for the perpetual care of a cemetery plot, the entire estate of deceased (valued in the 1926 account at an amount in excess of $2,000,000) was devoted to charitable purposes. It is contrary to the spirit of this will to hold that the general charitable intent of this deceased to benefit the residents of Franklin was of such calibre that inability to confer the benefit in the precise manner contemplated by deceased renders the gift altogether void. The gift here vested at the death of deceased.
If paragraph fourteenth were to be construed as a limitation over which affects the gift it would create a fee limited on a fee on a contingency which might not occur within a period measured by lives
From the stipulation of facts it appears that the town of Franklin has a population of 7,500 people and that it is unable to support an independent hospital of a size adequate for that population. The town of Franklin is located near other communities in which there are adequate hospital facilities. The answer of the hospital corporation states that arrangements can be made in one or the other cf these communities for hospital facilities adequate for the citizens of the town of Franklin. No doubt such arrangements could have attached to them a recognition of the donor and of his benevolence. Such arrangements could contemplate special services to the citizens of the town of Franklin. As between a reception hospital for emergency cases and the facilities that can be provided in existing institutions in nearby communities the latter would seem to be far more consistent with the plan of the testator.
Notice should be taken of the question whether the distributees of the testator are necessary parties. If the gift lapsed or failed, i. e., if it never vested, it would pass to the legatee under paragraph fourteenth. (Cruikshank v. Home for the Friendless, 113 N. Y. 337; Booth v. Baptist Church, 126 id. 215, 241.) If the court were to hold that the gift was not inoperative on the date of death but vested subject to later defeat it could not pass to the legatee under the
The college which is the residuary legatee has submitted to the court the determination of its rights. It seeks only that construction which best carries out the intention of the deceased. The college claims the gift as against the petitioner, but as the court understands its position it is not unwilling that the intentions of the donor be carried out cy pres.
The court holds that the petitioner has no interest in the fund. The court holds that the gift constitutes a vested charitable gift to which the cy pres doctrine attaches since the precise terms of the gift cannot be carried out. No specific plan for the disposition of the fund has been submitted and the Attorney-General of this State has asked that the court take proof before making any direction therefor. The immediate proceeding can be disposed of by a decree determining that the petitioner has no interest in the fund, determining that the residuary legatee has no interest therein, determining that the distributees of deceased are not interested therein and determining that the gift is a valid charitable gift. If the hospital corporation and the Attorney-General are desirous at this time of presenting proof for the purpose of a specific direction for the use of the fund a hearing will be set for the purpose. If they are content to take a decree reserving the right to either of them on some future application to seek a direction respecting the use of the fund a decree may now be submitted, on notice, in conformity with this decision.