170 Misc. 1030 | N.Y. Sur. Ct. | 1939
In this proceeding petitioners seek a construction of paragraph third of the codicil to the will of deceased. They seek-also a determination of the effect on the property dispositions made in the will and codicil of the limitation prescribed in section 17 of Decedent Estate Law. They ask a ruling in respect of the capacity of certain corporations and unincorporated associations to take the benefits prescribed for them under the will and codicil. Finally they ask to have determined the identity of the recipient or recipients of any property of deceased in respect of which he may be held to have died intestate. The portions of the will material to the problem say:
“ Ninth. I give and bequeath to Rathbone Cemetery Association, of Potter County, Pennsylvania, a corporation organized under the laws of the State of Pennsylvania on September 1st, 1899, the sum of Three thousand Dollars ($3,000) to be used as needed for the upkeep and maintenance of its cemetery grounds.
“ Tenth. I give and bequeath to the Masonic Home of Pennsylvania, located in Philadelphia, Pennsylvania, the sum of Five thousand Dollars ($5,000) to be used in the discretion of the managers thereof.
“ Eleventh. I give and bequeath to Northern Star Lodge #555, Free and Accepted Masons, located at Duke Center, Pennsylvania, the sum of Five thousand Dollars ($5,000).
“ Twelfth. I give and bequeath to Trinity Commandery #58 K. T. located at Bradford, Pennsylvania, the sum of Five thousand Dollars ($5,000).
“ Thirteenth. I give and bequeath to Syria Temple (Ancient Arabic Order of the Nobles of the Mystic Shrine) located in Pittsburgh, Pennsylvania, the sum of Five thousand Dollars ($5,000).
“ Fourteenth. I give and bequeath to New Mexico Consistory No. 1 (Valley of Santa Fe, Orient of New Mexico) located in Santa Fe, New Mexico, the sum of Five thousand dollars ($5,000).
“ Fifteenth. I give and bequeath to the Lodge of Benevolent and Protective Order of Elks, located in Bradford, Pennsylvania, the the sum of Five thousand Dollars ($5,000).
“ Sixteenth. I give and bequeath to the Presbyterian Hospital in the City of New York, incorporated by the Legislature of the State of New York in the year 1868, to be applied to the uses and benefits of said Hospital under the direction of the management thereof, the sum of Ten thousand Dollars ($10,000).
*1033 “ Seventeenth. I give and bequeath to Trustees of Columbia University in the City of New York, to be used as the Trustees may direct, for the Medical Center, the stun of Ten thousand Dollars ($10,000).
“ Eighteenth. I give and bequeath to the Salvation Army, now located at 120-130 West 14th Street, Manhattan, New York City, to be used solely in Greater New York, the sum of Ten thousand Dollars ($10,000).”
None of the quoted provisions of the will is altered by the codicil. The codicil, however, substituted the original nineteenth paragraph of the will by a new paragraph third in the codicil which says:
“ Third. I amend paragraph * Nineteenth' of said Last Will and Testament to read as follows: That should my son, Charles H. Rathbone, Jr., be living at the time of my death I give, devise and bequeath all the rest, residue and remainder of my property, real, personal and mixed wheresoever situated unto the Irving Trust Company of New York, a New York Corporation having its principal office in the Borough of Manhattan, City and State of New York, as Trustee and in trust for the purposes and uses following:
“ To receive, collect and recover the rents, issues, interest, income and profits thereof and pay over to my said son, Charles H. Rathbone, Jr., a maximum amount of four hundred ($400) dollars per month, payment to be made at least semi-annually. Should the rents, issues, interest, income and profits from my said estate be less than this said amount of four hundred ($400) dollars per month, my said son, Charles H. Rathbone, Jr., is to receive such smaller amount in lieu of the said four hundred ($400) dollars per month as it is my wish and intention that he shall not receive any of the corpus of my said estate but only such income as it may produce up to but not in excess of four hundred ($400) dollars per month.
“ In the event of the death of my said son, Charles H. Rathbone, Jr., I give, devise and bequeath all of the said trust estate and property as follows:
“ One-half to the Salvation Army, now located at No. 120-130 West 14th Street, Borough of Manhattan, City and State of New York, to be used solely in Greater New York.
“ The remaining one-half to be divided equally between the Masonic Home of Pennsylvania, located in Philadelphia, Pennsylvania; the Northern Star Lodge #555, Free and Accepted Masons, located at Duke Center, Pennsylvania; the Trinity Commandery #56 K. T. located at Bradford, Pennsylvania; the Syria Temple (Ancient Arabic Order of Nobles of the Mystic Shrine) located in Pittsburgh, Pennsylvania; the New Mexico Consistory No. 1*1034 (Valley of Santa Fe, Orient of New Mexico) located in Santa Fe, New Mexico, share and share alike.
“ If any of the said beneficiaries are not in existence at the time of the death of my said son, Charles H. Rathbone, Jr., I give and bequeath its share to such beneficiaries as are in existence at that time share and share alike.”
Deceased had a son, Charles H. Rathbone, Jr., who predeceased his father. Deceased was survived by an infant grandson, Charles H. Rathbone, III, his sole distributee.
It is appropriate first to consider a fundamental attack made upon the testamentary scheme by the guardian of the infant grandson of deceased. In behalf of the infant it is asserted that the attempted disposition of the residuary estate under the quoted paragraph of the codicil failed wholly because the remainder gifts to the named institutions were conditioned on the survivorship of Charles H. Rathbone, Jr.; and that since Charles H. Rathbone, Jr., predeceased his father the gifts failed. This contention in untenable. Deceased first provided that if his son were to survive him the residuary estate should be set up in trust and a stated income therefrom paid to his son. Later in the same paragraph he disposed of his residuary “ in the event of the death ” of his son. Neither reason nor authority supports the argument that the testator by this codicil required that a trust estate must preliminarily be set up before the institutions named in the paragraph of the codicil could participate in the residuary estate. The phrase, “ in the event of the death,” must be held to mean a death either before or after that of deceased. The fact that in the later dispositive provisions the words “ the said trust estate and property ” precede the gifts to the alternate residuary beneficiaries do not support the argument that these beneficiaries were to have only a portion of a “ trust ” estate. The phrase “ the said * * * property ” is completely descriptive of the remainder of the estate. The word “ property ” as used in the gifts over to the substitutional beneficiaries is the same as the word used in the introductory portion of paragraph third when deceased speaks of “ all the rest, residue and remainder of my property.” It would wrench the words “ trust estate ” out of their fair intendment and meaning to say that they were inserted in this paragraph of the codicil as words which controlled the interests of the' beneficiaries of the residuary if the son of deceased had predeceased him. So to argue is to say that deceased left unprovided for a most important element in his testamentary scheme. The presumptions against intended intestacy are substantial presumptions. Resort to them need not be had to support the construction here given, but they confirm
In behalf of the infant distributee of deceased the will and codicil are challenged on the ground that more is given to charity than is permitted under the provisions of section 17 of the Decedent Estate Law. It is conceded by all of the institutional beneficiaries except the beneficiary under the ninth paragraph of the will that they fall within the terms of section 17 of the Decedent Estate Law. The court finds that the beneficiary under the ninth paragraph of the will is also within the terms of the statute. (Matter of Mawhinney, 146 Misc. 30; affd., 239 App. Div. 874.) Since this is not an accounting proceeding the court is limited at this time to the ruling made at the hearing, to wit: That any excess of otherwise validated gifts to charity over one-half of the gross estate (less debts) will pass to the infant grandson of deceased as intestate property under section 17 of the Decedent Estate Law. It seems to be assumed that the distributee of deceased will succeed to certain property under this ruling. The court cannot anticipate the finances of the estate, and definitive ruling on the operation of section 17 of the Decedent Estate Law must await an accounting. The court will defer to an accounting and to a time when the finances of the estate are fully known all subsidiary questions which may arise respecting abatements or priorities among the charities held to be entitled to take. These rulings leave for determination a number of issues in respect of which the court took a substantial body of oral and documentary proof. The questions now to be discussed are those which concern the capacity of the persons and associations named by deceased in his will and codicil to take the benefits which he intended for them.
I. Corporate Legatees.
The capacity of Columbia University, of Salvation Army, of Presbyterian Hospital and of the Masonic Home of Pennsylvania to take testamentary gifts under their charters is conceded. It is also conceded that the activities of each of these four are charitable ! within the meaning of section 17 of the Decedent Estate Law. Each I is capable of receiving such benefit as deceased is found to have ¡conferred upon it validly by his will and codicil. A word should
II. Unincorporated Association Legatees.
The will and codicil purport to confer benefits on five separate unincorporated associations, four of which claim to be capable of taking directly the gift bequeathed. In respect of the fifth a corporate organization allied with the named association has come in to claim the gift. The grounds asserted by these legatees in support of their respective claims vary considerably and require separate examination.
(a) Northern Star Lodge.— The eleventh paragraph of the will and the third paragraph of the codicil give to “ Northern Star Lodge #555 Free and Accepted Masons ” a general legacy of $5,000 and in adition one-tenth of the residuary estate. In the answer filed by this legatee it alleges that it is an unincorporated voluntary association and a branch of the “ Grand Lodge, Free and Accepted Masons of Pennsylvania, an unincorporated voluntary association.” It further alleges that its principal purposes and objects “ are religious, educational and charitable.” It asserts that under Pennsylvania law it has the capacity to take the benefits designed for it by deceased since the principal purposes of the association are charitable in the generic sense. In support of these allegations in its answer this legatee offered proof that it is one of 566 subordinate “ Blue ” lodges operating under charters granted by the Grand Lodge of Pennsylvania. While some proof was presented by this legatee concerning the charitable activities of the Grand Lodge, it should be noted in passing that no contention is made that the gift was intended for the Grand Lodge. It is claimed by the subordinate lodge. Each member of Northern Star Lodge was
The annual dues of five dollars are divided between the local lodge and the Grand Lodge, the latter receiving two dollars. The initiation fee of ninety-five dollars is divided fifty-five dollars to the “ Blue ” lodge and forty dollars to the Grand Lodge. Northern Star Lodge has a charity committee of three members. It owns a two-story brick building called the Temple, of which the lower floor is rented for business purposes. It pays taxes on its real estate. The lodge income for 1936 was $1,402.50 and for 1937 $2,124.61. Its record of disbursements shows that the lodge transmits to the Grand Lodge about $320 per annum and expends the balance chiefly on the operations of the local lodge.
On the record Northern Star Lodge states that it relies on its “ religious ” character as establishing its capacity to receive the benefit of deceased’s gift.
(b) Trinity Commandery, Knights Templar.— The will and codicil confer upon the “ Trinity Commandery #58 K. T.” exactly the same benefits as those conferred upon Northern Star Lodge. The commandery interposed an answer to the petition substantially
Admission to the commandery requires membership in a “ Blue ” lodge, belief in a Supreme Being and in the Christian religion and residence in the jurisdiction of the commandery. The commandery confers degrees of Masonry from the fourth to the thirty-second, inclusive. Meetings are held for the purpose of “ conferring degrees and (disseminating) the teachings of the Order.” The witnesses declined to reveal the means used in disseminating the teachings of the order or the ritual employed therein.
In support of the claim that the legatee promotes education a witness stated that it had developed an “ Order of De Molay,” which is open to adolescents and operates much in the fashion of a big brother movement. The officer of the commandery who testified (a Pennsylvania lawyer) seemed to concede that on the facts presented Trinity Commandery must rely solely upon its quality as a religious organization for inclusion among “ charitable associations.” To evidence this religious character the witness spoke of his own personal spiritual experience and expressed the
(c) Syria Temple, Mystic Shrine (and allied corporations).— The thirteenth paragraph of the will and the third paragraph of the codicil provide benefits for “ Syria Temple (Ancient Arabic Order of the Nobles of the Mystic Shrine) ” to the same degree as the benefits intended for Northern Star Lodge and Trinity Commandery. In addition to the unincorporated association thus described there are three corporations claiming this gift and there is reference in the proof to a fourth corporation which might in some aspect be regarded as entitled thereto on a basis asserted by one of the other corporations.
The first claimant for the benefits is the voluntary unincorporated association which holds a charter from “ The Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine,” an Iowa corporation. It alleges that its principal objects are “ charitable and fraternal.” Its answer alleges by implication that if the court should find that it lacks capacity to take as an unincorporated association the fund should then be held payable to “ Syria Improvement Association,” a Pennsylvania corporation. An Iowa corporation issued the charter to Syria Temple. The Pennsylvania corporation was “ formed for the purpose of purchasing, taking, holding, improving, selling and leasing real estate ” in behalf of the unincorporated association. The argument of counsel for the unincorporated association is that the gift is good because the principal purposes of the association are charitable. Counsel in the alternative argues that in any event the gift should go to Syria Improvement Association either outright and absolutely or as a gift in trust for the uses of the unincorporated association known as Syria Temple.
The unincorporated association known as Syria Temple appears to have originated on February 6, 1878, by virtue of a “ dispensation ” dated May 19, 1877, granted by “ The Imperial Grand Council ” of the Mystic Shrine. This Grand Council was at the time an unincorporated association. The charter granted was to a group named “ Illustrious Nobles ” and empowered them and their successors to “ exemplify the Order upon all whom they deem worthy of such honor.” The proof showed that the unincorporated Imperial Council was absorbed by the Colorado corporation (organized in 1925) which first exercised the fraternal powers of the Mystic Shrine and operated its charitable activities, except as such activities were already operating under the Georgia corporation. In 1936 the Iowa corporation was organized to take over the fraternal activities of the Mystic Shrine, leaving the Colorado corporation to devote its efforts exclusively to charitable purposes. The latter sought in 1936 to divest itself of its fraternal functions by amendment of its charter. Thus the subordinate temples treat the Iowa corporation as the source of the charters under which the subordinate temples operate. In making remittance for charitable purposes the subordinate temples send the money in the first instance to the Iowa corporation but the latter transmit it in full to the Colorado corporation which disburses all of it. The constitution and regulations of the Imperial Council — the Iowa corporation — plus the by-laws adopted by the subordinate temple govern the operations of each temple.
The by-laws of Syria Temple provide that its trustees shall vote the shares of stock owned by the temple in Syria Improvement Corporation. Except for two qualifying directors’ shares the temple is the record owner of all the shares. It is the beneficial owner of
On January 1, 1938, Syria Temple had a membership of 13,711 persons, each of whom was required to pay twelve dollars annual dues. Membership in the temple required good standing in one or the other of two Masonic bodies —“ a Commandery or Preceptory of Knights Templar or a Consistory of the Ancient and Accepted Scottish Rite.” Little proof was offered concerning the religious or educational purposes of Syria Temple. The temple claimed a right to take the benefits under the will by seeking to show that in actual practice it spent a sufficiently high percentage of its funds on charitable objects to require a fact finding that it is “ principally ” a charitable institution. Its Exhibit 7 shows its income and disbursements from 1933 to 1937, inclusive. The annual receipts in this period are shown to have ranged from a low of $155,614.51 to a high of $177,402.27. The 1937 income was $177,273.51. Taking that year as typical it appears that $28,752 was paid to the Crippled Children’s Hospital at Pittsburg, $1,492 for taxes on the hospital site, $2,992 on “ welfare,” $4,783.93 on “ Christmas gifts to orphans,” $29,369.72 for “ administrative expense,” $39,351.01 to cover the deficit in the real property operations of Syria Improvement Corporation, $6,930.50 for dues to the Imperial Council, and $62,133.70 for “ ceremonials, entertainments, sundry and travel, working units and annual meetings.” These disbursements left a surplus of $1,468.27. The purely charitable expenditures represent slightly less than thirty per cent of the gross income. The administrative and general expenses represent more than double that proportion of the gross. As respects Syria Temple’s own claim, therefore, the problem is presented whether under the law of Pennsylvania an unincorporated association may take a testamentary donation — not stated in the will to be for any charitable purpose — on a showing that in practice its funds are devoted to the extent of thirty per cent to charitable uses and seventy per cent to fraternal and social uses. When the law on the subject is later discussed in this opinion the status of the allied corporations will also be treated.
(d) New Mexico Consistory.— Paragraph fourteenth of the will and paragraph third of the codicil prescribed for “ New Mexico
Admission to a Lodge of Perfection requires that the applicant be a member of a “ Blue ” lodge and that he reside within the jurisdiction of the Lodge of Perfection. He may progress from the Lodge of Perfection to the chapter, then to the council and finally to the consistory. In the Santa Fe jurisdiction the Lodge of Perfection has I''811 members. The consistory has about 1,788 members. The members of the various bodies meet monthly and conduct “ reunions ” at which the degrees are “ exemplified.” These meetings are in the building owned by the corporation. This is now subject to mortgage of $50,000. It is exempt from local taxes.
The entire group of subordinate organizations in the Santa Fe jurisdiction are shown to have dispensed as charity about $1,000 to $1,200 a year. All of this was in the nature of almsgiving. A witness called in behalf of the corporation said in respect of the unincorporated bodies: “The general purposes are * * * to teach the fundamental principles of the Masonic organization, which is a philosophy of life. It is not to be classed as a religion, but it does teach its membership a better life. The Scottish Rite of Masonry is essentially, much more so than the Blue Lodge of Masonry, educational * * *. The objects of the organization are fraternal, benevolent and educational. By ‘ benevolent ’ I include the word ‘ charitable.’ ” The disbursements of the funds of this group of unincorporated organizations can be classified as charitable only to the extent of about eight per cent. The witness for the corporation said that the only educational purpose of the group was accomplished in the degree work.
(e) Bradford Lodge, B. P. O. E.— A gift of $5,000 is made in paragraph fifteenth of the will to “ The Lodge of Benevolent and Protective Order of Elks, located in Bradford, Pennsylvania.” The lodge has a membership of about 500. A witness called in its behalf stated: “ The objects and purposes of the Bradford Lodge are brotherly love, justice, fidelity and charity * * *. In our particular lodge charity.” The lodge conducts Flag Day celebrations,
(f) It is evident from the foregoing outline that no one of the claimants to the gifts to unincorporated associations is exactly like any of the others. In a general way, however, Northern Star Lodge and Trinity Commandery rely — the former exclusively and the latter chiefly — on their religious character to qualify them as recipients of legacies. Syria Temple and Bradford Lodge both stress the amounts of money actually expended by them on charity. Syria Temple is resting, too, on the arguments urged in behalf of Northern Star Lodge and Trinity Commandery. It accedes apparently to the proposal to make payment to one or the other of the corporations which claim the gift to it if the court shall refuse direct payment. The Santa Fe Consistory gift is claimed by a corporation not named in the will which relies expressly upon a contention that the will contains a misnomer. From this premise the corporation argues that it may validly take the gift by reason of the statute under which it was organized.
III. Law Governing Capacity op Legatees to Take.
While the will of deceased is probated as that of a resident of this State, it is the law of this State that the domicile of the legatee determines his capacity to take testamentary benefits. While the early cases laid down a different rule, it is now established that if the legatee is competent to take under the law of the legatee’s domicile the gift is valid even though invalid in this State if made to a similar organization here. (Bascom v. Albertson, 34 N. Y. 584, 587; Chamberlain v. Chamberlain, 43 id. 424, 433; Matter of Huss, 126 id. 537, 544; Hope v. Brewer, 136 id. 126, 133, 134; 32 Col. L Rev. 680, 685.)
The Pennsylvania Law.
The law of Pennsylvania governs the status of four of the five legatees whose particular histories have been given hereinabove. Counsel for these legatees have filed briefs which assert that under the law of Pennsylvania an unincorporated association may take a legacy. provided the association’s chief objects are charitable. Conceding the correctness of this statement as one of abstract principle, the reason for the principle must be developed from a review of the Pennsylvania cases so that its limitations may be fully understood. The fundamental fact must first be stated that
In the early case of Kirk v. King (supra) one McElroy conveyed land for the use of a school to the Plum Creek School Company, an unincorporated association. The court said (pp. 440, 441): “ McEIroy’s conveyance 1 to the employers of the School at Plum Creek/ being to an unincorporated association, was void at law for want of a grantee capable of taking; and the legal title remained in the grantor, subject to the uses declared in the deed.” Prior to this decision the Circuit Court of the United States for the Eastern District of Pennsylvania in Magill v. Brown (Brightly’s Reports, 346 [1833]) had considered at very great length the law of charities in Pennsylvania. The specific question before it was whether the Society of Friends, an unincorporated religious body, had capacity to take a testamentary gift. Giving an affirmative answer to this question, the court said (p. 378): “ The yearly meeting of Philadelphia is a Protestant religious society, which has existed from the settlement of the colony, with known and recognized capacity of taking and enjoying property according to the law and usage of the Province and State, as well as the principles of the common law.
To commit his property to charitable uses under Pennsylvania law a testator is not in all instances required to describe the use. Where an outright donation is made to a corporation or association the purposes and activities of which are exclusively charitable the Pennsylvania courts hold the bequest to be one for the institution’s general purposes. The inference thus drawn where the gift is to an institution which is wholly charitable may be compared with the old established rule that a bequest to a natural person whose profession is charitable will raise no inference that the gift was intended for charitable uses. (1 Jarman on Wills [5th Am. ed.], p. 401.) The Pennsylvania cotut has given an adequate explanation for the divergent rules thus governing natural and artificial persons. To an argument made to it that because no inference favoring a charitable use could be drawn when a gift is made to a natural person professionally engaged in charity none could be drawn where the gift was to an artificial person so engaged, the court, in Evangelical Association’s Appeal (supra), said (p. 321): “ However true this may be [that no inference of trust intent on the part of donor is raised] where the devisee is a natural person, and where, consequently, he has interests of his own, distinct from those which appertain to him as a professional man, the reason for it altogether
Since the multiple purposes of a natural person prohibit the inference that an outright gift to such a person is deemed earmarked exclusively for any one of his many objectives, it is likewise true that the same rule must apply where a voluntary association has not one but many purposes some of which are non-charitable. The reason for the rule against drawing inferences is as strong in the latter case as it is in the former, and the court would have no hesitancy in holding this rule to be the law of Pennsylvania were it not for a dictum in Lawson’s Estate (264 Penn. St. 77; 107 A. 376), where the court, while synopsizing what it conceived to be the Pennsylvania law on charities, incidentally remarked that “ Where a legacy is given in general language to an association organized chiefly for charitable purposes, the presumption is that testator intended the bequest solely for the charitable uses of the legatee society; and there is an implied trust that the money shall be so used.” (Italics supplied.) This statement may be assumed to be the law of Pennsylvania. It shows that the minimum requisite for validating the gifts to the Pennsylvania claimants here (who are unincorporated associations) must be that they demonstrate that they are severally institutions chiefly existing for charitable purposes. The questions thus are posed: What are charitable purposes under Pennsylvania law? And are the purposes of the unincorporated associations now here chiefly charitable?
The first of these questions should be carefully distinguished from an inquiry into the nature of a charitable intent or motive on the part of the donor. The true sense of the question now being investigated is this: Under the law of Pennsylvania what objective purposes pursued by institutions are held to be charitable? If to enumerate them be impossible (and, indeed, such is the fact) then by what marks shall any allegedly charitable purpose be tested? Thus formulated, the question can be answered. According to the court in Philadelphia v. Fox (64 Penn. St. 169): All charities are in some sense public. If a trust is for any particular person, it is «not a charity. Indefiniteness is of its essence. These views were .echoed by the same court in Fire Insurance Patrol v. Boyd (120 Penn. St. 624; 15 A. 553) where the court quoted with approval-the definition of a charity given by Justice Gray in Jackson v. Phillips (14 Allen [Mass.], 556): “ A charity in the legal sense may be more fully defined as a gift to be applied consistently with existing laws for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or con
It must be understood of course that a charitable use means one existent in fact and not merely existent as a paper organization. (Matter of Syracuse Masonic Temple, 270 N. Y. 8.) In considering the claims presently being made by Masonic organizations it is not possible to reach sound conclusions based merely on abstract characterization used by the courts of various States in respect of their quality in cases where these organizations were before the courts either as legatees or as petitioners for exemption from realty or other taxes. It was correctly said in Morrow v. Smith (145 Iowa, 514; 124 N. W. 316), a case dealing with a. Masonic lodge, that where a question is raised whether such a lodge is a charitable institution the question “ is one of mixed law and fact.”
The court has found three Pennsylvania cases which refer to the status of Masonic societies as charities. In one of these cases (Appeal of Woolford, 126 Penn. St. 47; 17 A. 524) the question concerned the union of theretofore separated Masonic orders. The opinion below, approved on the appeal, included a statement: “ It seems to be settled, notwithstanding the doubt expressed by Judge Pomeroy in his work on Equity (Section 1019, note 2); that a lodge of Freemasons is a charitable association. 2 Perry, Trusts, § 705 (and cases collected in note 6). It appears from so much of the unalterable fundamental law of the Ancient York Masons as it is not unlawful to publish, that religion, morality, and the duty of charity (at least toward fellow Masons and their families) are inculcated and required in all members of that society, so that the donees in the present case are clearly charitable associations; and it is certainly settled in this State that a gift to a charitable association, without specifying any particular use to which it is to be applied, is none the less on that account a charitable gift.” The court below had obviously referred to the second edition of Perry on Trusts, published in 1874. The volume and section number cited in the quoted excerpt has appended to it a note 6 in which are listed the same cases as are found in note 85 to section 705 (page 1196) of the seventh edition of Perry. These cases are King v. Parker (9 Cush. [Mass.] 71); Vander Volgen v. Yates (3 Barb. Ch. 242); Duke v. Fuller (9 N. H. 536); Everett v. Carr (59 Maine, 325) and Indianapolis v. Grand Master (25 Ind. 518). After citing them Perry adds: “ See Babb v. Reed, 5 Rawle
The second Pennsylvania case is Delaware Co. Institute of Science v. Delaware Co. (94 Penn. St. 163, 165). The opinion says: “ The Society of Masons, Odd-Fellows, and kindred associations are undoubtedly charities, but not purely public ones, and, therefore, their real estate is not exempt from taxation.” The third case on the subject is Kellner v. Stahl (7 D. & C. [Pa.] 95) where, with reference to Kensington Lodge No. 211 Free and Accepted Masons (presumably one lodge in the group of which Northern Star Lodge No. 588 is another), the court made the following findings of fact:
“ It is not engaged in commercial business of any kind, neither is it a beneficial society [see below for commentary on this point] but its essential purpose is fellowship within the rules and regulations of the fraternity and according to its ancient usages and customs. Its revenue is derived from dues regularly paid to it by its members.
“ The books of the lodge show that during the year 1908, the year of Mary Maier’s [deceased’s] will, its total disbursements were $6,986.97, of which $398.15 were disbursed for charity.
“ No member of the lodge has a right to demand any financial relief. Where any relief is granted, it is confined to members of the lodge and their families.
“ The said lodge was not, at the time of the execution of the said will of Mary Maier, and never has been, a charity or an organisation for religious or charitable uses.” (Italics supplied.)
These facts have been given in extenso from the opinion because of their similarity to the facts developed respecting the Masonic associations now before this court, particularly in respect of actual use of funds for charity. In its legal opinion on the basis of the facts found by it the court in Kellner v. Stahl examined authorities dealing with the status of such lodges with reference to charitable uses. The court said that the case before it was more nearly related to Babb v. Reed (supra) and Sharp’s Estate (71 Sup. Ct. [Pa.] 34) than to any other Pennsylvania decisions. The court then concluded: “ Upon such evidence it is not believed that the lodge can be said to constitute a charity. Both in theory and practice, the giving of any money for that purpose was obviously a decidedly minor feature of the work of the lodge. The mere fact that it may have given a few hundred dollars to charity does not make it a charity.”
There are two aspects of this decision which require comment. The first is the court’s concentration — perhaps undue concentration — on charity in the sense of almsgiving. Pennsylvania takes a generous view of the nature of a charitable use. This is implied in the various cases cited above. To what has already been said it is desirable to add the words of the court in Donohugh’s Appeal (86 Penn. St. 306, later cited with express approval in White v. Smith, 189 id. 222; 42 A. 125): “ The commonest and most familiar meaning of charity is almsgiving, but that narrow definition is not the primary or most important one given in the dictionaries or sanctioned by the usage of English-speaking people. The moment the word is used in connection with the present subject-matter of charitable gifts or charitable institutions, the popular
In the Kellner case the court apparently did not explicitly explore the quality of Kensington Lodge save from the standpoint of material charity — almsgiving — although it did find as a bald ' fact that the lodge was not a religious organization. Its failure to consider more fully the broader aspects of charitable uses, including ' religious uses, plainly weakens its authority — as counsel here have contended. On the other hand, the court in that case (and' this is the second aspect of the case requiring comment) left' undeveloped its own opinion that Babb v. Reed (supra) most nearly matched the situation with which it was confronted. In Babb v. Reed it was held that a lodge of Odd Fellows was not a charity but a “ beneficial ” association. From the report of the case it seems to be indicated that certain members of the lodge had claims as creditors against the surplus moneys remaining after a foreclosure and that such claims were asserted to be on a parity with claims of non-lodge members for work done seemingly in connection with the erection of a building. The court’s decision'appears to be based on the idea that if the property was devoted to a charitable use all of the claimants were on a parity whereas if the property was beneficially owned by the members (because the lodge did not constitute a charity) they were relegated to a status as owners and so were deferred to the claims of non-lodge members. The court held that the lodge was not a charity and so that the outsiders were entitled to a preference in payment.
This discrimination between an association engaged in a charitable activity and devoting its property to a charitable use and the status of an association as a beneficial society is sharply presented by a group of cases which deal with the statute of Pennsylvania making void gifts to charity by instrument executed less than one month prior to death (Act of Assembly, April 26, 1855, section 11 [P. L. 328], subsequently amended in 1911, 1917 and 1935 and now section 195 of Decedents’ & Trust Estates Law of Pennsylvania). As originally formulated this law said: "No estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic or to any person, in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible and at the same time disinterested witnesses, at least one calendar month before the decease of the testator or alienor, and all disposition of property contrary hereto shall be void and go to the
In Herbig’s Estate (11 Erie [Pa.], 269) the “ Odd Fellows Home of Western Pennsylvania ” appears to have been given a legacy in a will executed less than thirty days before the death of the deceased. The court held that the legatee was not a charity and, therefore, that the gift had not been made for a charitable use. Apparently the gift was validated. In this case also the question
The distinction between a beneficial and a charitable society is clear. In the beneficial society the world outside the association’s doors is essentially a stranger. The beneficial society is regardful only of its members. It constitutes a group of insiders. Its membership is formed of candidates able to satisfy onerous conditions — financial, moral, civil, etc. The members have been drawn together by a mutual desire to be as they are. Once assembled they exclude all other persons from their society activities. The charitable institution is exactly the opposite in all the stated particulars allowing of comparison. To a charity the world outside is a world, the inhabitants of which should all be united as brothers. In the perspective of a charity this world is sick or ignorant or vicious. It requires to be cured or educated or redeemed. The managing members of a charitable organization expect to get nothing for their labors. Charity seeks primarily the good of others. Even the consolation which may be derived from performing works of charity is irrelevant to the main idea. Charity is the proof of the profound paradox that to get one must give but the giving must not be for the purpose of the getting. Every charitable use is open to the whole world so far as is practicable. Where it is a religious use it is literally open to an indefinite number (Compare Fire Insurance Patrol v. Boyd, supra) and is a use which strives directly or indirectly to pour out benefits designed to
If a Masonic lodge is a religious organization in fact (this record supplies no basis for such a ruling) it is not a religious use which is a charity. The proofs in this case permit no more than a finding that it is o spiritual mutual benefit or “ beneficial ” association. Hence Babb v. Reed (supra) and similar cases are here the controlling authorities on the question of the quality of the claimants under consideration though those cases were occupied with beneficial societies merely from a pecuniary standpoint. If a gift be made to a denominational group or for a specific religious use or to a missionary society or for the purpose of extending Christ’s Kingdom on earth (as in a notable case in New York), the gift is charitable because in every instance the ultimate purpose is to facilitate the propagation of the “ idea of the holy.” But the proofs here show that any spiritual benefits of Masonry are confined to the lodge members. The claimants that rely on the religious use idea to qualify for the gifts here argue that Masons, privately benefiting from their secret practices, fulfill a public purpose by becoming men of sterling worth and thus men who confer a benefit on the community. The community gets the benefits of a religious use, they say, since the members of the lodge, owing to the lodge’s secret practices, become law abiding, patriotic and spiritually minded citizens. This argument impliedly is in the nature of an avoidance of a status as mutual benefit societies, which if admitted would disqualify them under the cited cases. The Masonic lodge at the maximum can give to the community at large only the functional effects of religion. Its religious practices — if existent — are kept closely guarded within its own secret precincts and, in respect of them, the society is unambiguously a mutual benefit association.
Many decisions on the subject of lodge quality have been made but the precise question whether a Masonic lodge is a religious use has seldom been litigated. In New York an interesting dictum respecting secret societies generally from the standpoint of religious quality appears in Matter of Fay (37 Misc. 532, 534) where Surrogate
The effect of secrecy in a society’s ritual caused the court to say in Washington Camp v. Board of Equalization (87 N. J. L. 53, 55; 93 A. 856) that: “ Moreover, the facts appearing by stipulation, that the proceedings of the 1 camp ’ are ritualistic in character, and that its sessions are secret, give rise to a fair inference that this body is also essentially social in character.”
Why should secrecy of practices import the social rather than the charitable if it be not for the reason that the social signifies not merely a group of members in agreement with one another but out of agreement and differentiated from others on bases voluntarily established by the wills of the society? In contrast, the charitable signifies the unification or rapport of individuals with reference to the relief, the education and the uplift of the unfortunate many, the uneducated mass and the indefinite and undefmable group needing spiritual betterment. The briefs discuss at some length the Nebraska cases of Scottish Rite Building Co. v. Lancaster Co. (106 Neb. 95; 182 N. W. 584), decided in 1921, and A. & A. Scottish Rite v. Board of Commissioners (122 Neb. 586; 241 N. W. 93), decided in 1932. The first cited case held expressly that a Masonic organization was not a religious organization. The second held that the determination in the first case was too narrow. It overruled the lower court in the case before it saying that it had denied the exemption from tax on a ground which denied freedom of religious practice. Whatever be thought of the conclusion reached by the Nebraska court in the second case cited it is quite plain that the opinion discloses a confusion of ideas. There is no established church in this country of course. There is complete freedom in religious practice of course. But how either of these fundamentals can be used as a test whether a secret fraternity constitutes a religious society or so conducts its affairs as to bring itself within a religious use is not cléar. One does not have to deny funda
In considering the powers of voluntary associations the court has not overlooked Houk’s Estate (33 D. & C. [Pa.] 511). The auditor’s report in that case was made the opinion of the court. The auditor appears to regard the question as novel (p. 519). He reached the conclusion that the gift there in question to a non-charitable unincorporated association was valid because the right of unincorporated associations to hold personal property was recognized and because they are “ regarded as having a quasi corporate existence in law.” The ownership of personalty by such an association is a legal fiction denoting an actual ownership by an unstable group which from time to time constitutes the membership (Liederkranz Singing Society v. Germania, etc., 163 Penn. St. 265; 29 A. 918. Compare Tracey v. Osborne, 226 Mass. 25; 114 N. E. 959.) The fiction that an unincorporated association — a legal non-entity — is a quasi corporation is indulged solely that it may manage funds given as charity for the benefit of others. There seems to this court no basis whatever in the controlling decisions , of the Supreme Court of Pennsylvania for the discrimination between personalty and realty as the subject-matter of a gift to an unincorporated association nor does there seem to be any support for ¡ the view that such associations are deemed to be quasi corporations , except in those instances (like the Society of Friends) where the ' gift would be validated because of the religious or charitable character of the recipient. The view taken by this court is in agreement with the determination by the Federal courts when they considered the quality of Masonic institutions in connection with estate tax questions. (First National Bank of Dallas v. Commis
In affirming the Board of Tax Appeals the Circuit Court of Appeals said: “ The Revenue Act in question by section 403 exempts from an estate tax, among other things, bequests to corporations which are ‘ organized and operated exclusively ’ for charitable purposes. The local lodges of which Pires was a member were not incorporated at all, and the Grand bodies of Masonry over them were incorporated not for charitable purposes exclusively, but for fraternal and benevolent purposes as well. Fraternal organizations may be described generally as social in their nature, and designed not exclusively for charitable purposes but for the enjoyment of their members in many ways. 5 R. C. L. 372. Charitable organizations are benevolent, but benevolent organizations are not exclusively charitable. Chamberlain v. Stearns, 111 Mass. 267. Nor are Masonic bodies operated exclusively for charitable purposes, since they carry out also benevolent and other purposes for which they were organized. The Revenue Act also exempts from an estate tax bequests made to trustees exclusively for charitable purposes, but Pires’ residuary bequest was not made to the Masonic bodies as trustees; it was given to them, as it was
Rulings necessitated by foregoing discussion.
So far as Northern Star Lodge No. 555 is concerned, the conclusion of the court is that it cannot qualify to take anything under deceased’s will. It made no serious effort to prove its chief activities consisted of charity in the form of educational activity or of almsgiving. The same must be said of Trinity Commandery. Like Northern Star Lodge it could show no substantial almsgiving. Its “ educational ” activity in relation to the “ Order of De Molay ” was a negligible feature of its work if indeed it were not a wholly unofficial form of activity. The testamentary bequests to these claimants are attempts to give funds to unincorporated voluntary secret fraternal associations having neither religious, educational nor almsgiving objectives as their primary purposes. The attempted gifts are, therefore, void.
The claims of Syria Temple are now to be considered. No real effort was made by this party to prove its activities to be either religious or educational. It relies on the manner of application of its finances to establish its right to take. The Pennsylvania cases already reviewed demonstrate the incapacity of this unincorporated claimant to take testamentary donations not given for a definite charitable use. Syria Temple’s activities and purposes are not “ chiefly ” charitable. In a monetary sense they are not above thirty per cent charitable. Consequently no inference can be drawn from the nature of the temple that these gifts would necessarily be applied to charitable objects and that such application was necessarily intended by deceased. The bequest to the temple as such is, therefore, void. This gift, however, is sought to be sustained on the general theory elaborated in cases like Kernochan v. Farmers’ Loan & Trust Co. (187 App. Div. 668; affd., 227 N. Y. 658); Matter of Isbell (1 App. Div. 158) and Prudential Insurance Co. v. N. Y. Guild for Jewish Blind (252 id. 493). These cases stand for two propositions; (1) That a gift to a capable beneficiary will not fail by reason of a misnomer, and (2) that a charitable gift to an incapable donee which is an auxiliary or branch or department of a capable donee will be saved by holding that the capable main
These general principles of construction together with the limitation indicated in the last cited case are New York law and are really not relevant to the question of the validity or invalidity of these attempted bequests here to a Pennsylvania legatee. They are discussed only because they have been used in a case cited by counsel to the court. (Matter of Upham, 160 Misc. 126.) There the surrogate held these principles to be useful in determining that gifts made by a deceased person to three unincorporated Massachusetts Masonic lodges could be sustained as gifts to the Grand Lodge. The opinion of the court failed, however, to disclose all the facts in that case. These facts are to be found in the later opinion in the same estate reported in the New Y ork Law Journal for October 24, 1938, at page 1281, from which it appears that the gifts there were not outright donations as in the present case but were made for the “ relief of the poor (not necessarily Masons).” (Italics supplied.) Obviously this case in no way proves useful in the present litigation.
The analysis heretofore made of the Pennsylvania authorities enables the court to deal more briefly with the position of the Elks lodge. The court holds that this lodge does not exist chiefly for charitable purposes. On the proofs presented it is apparent that it is essentially a fraternal and benevolent organization. As an unincorporated association it cannot take. The bequest to this lodge is, therefore, void.
Law of New Mexico.
There remain for consideration the claims of the Lodge of Perfection Corporation of Santa Fe, N. M. This claimant has not cited to the court any relevant law from the State of New Mexico apart from the statute under which it was organized together with the case of Temple Lodge No. 6 A. F. & A. M. v. Tierney (37 N. M. 178 [1933]; 20 P. [2d] 280). The statute in question authorizes incorporation for “ religious, benevolent, charitable, scientific or literary purposes.” The case cited dealt with whether certain realty held by a Masonic corporation was tax exempt. The court held that it was exempt, saying: “No one denies that the property is used for educational and charitable purposes ” (p. 185). The court further declared (p. 187): “ The present decision is reached upon the present record. We lay down no general rule as to fraternal orders
It is apparent that neither the statute nor the New Mexico decisions are of any great help in solving the question now here. As an unincorporated association the chief purposes of which are non-charitable, as appears from the proof here, the consistory named in the will cannot take the bequests — for such is the common law and it must be applied as the law of New Mexico in the absence of proof to the contrary. As was stated above, no claim in behalf of the consistory has been put forth in this proceeding at any time. Counsel here relies wholly on a theory of misnomer. This position is wholly untenable for the same reasons set forth in connection with the claims made in behalf of the corporations associated in one way or another with Syria Temple. Certain additional comments, however, should be made. It was testified that a Mason of the Scottish Rite of the Southern Jurisdiction upon meeting another Mason might inquire of him how matters stood at the latter’s “ Consistory.” This was offered the court as a proof that by usage the word consistory had come to mean the corporation through which the Santa Fe co-ordinate bodies hold title to their temple. Such proof is without cogency in virtue of the other facts established. The consistory is an independent association and in no sense a department of the Lodge of Perfection Corporation. The latter on the contrary is a device whereby the consistory and the other co-ordinate bodies endeavor to overcome their inherent disabilities to take and hold property. The consistory is not a subordinate but is one of four co-ordinate masters of the corporation. Not only is the consistory not absorbed into the corporation but this is true also even of the Lodge of Perfection, the unincorporated association which has the same name as the corporation, (Mason v. Finch, 28 Mich. 282.) The testator here was the author of no misnomer. He named an identifiable party but , one incapable of
Intestate Property.
Because five beneficiaries cannot take the gifts intended for them deceased died partly intestate. The general bequest to Bradford Lodge of Elks becomes part of the residuary estate and passes pursuant to article third of the codicil subject to the limitations of this decision. The general legacies to Northern Star, Trinity Commandery, New Mexico Consistory and Syria Temple pass through the residuary estate in like manner and subject to the same limitations. The residuary is to be computed on the basis of these accretions. So computed the residuary shares intended for the four last named associations constitute property as to which deceased died intestate. This intestate property passes to the infant grandson of deceased.
Submit, on notice, decree construing the will in the particulars stated herein and reserving to an accounting or other appropriate proceeding the ascertainment of the extent to which the gifts here validated exceed, if at all, the limits fixed by section 17 of Decedent Estate Law.
