133 N.Y.S. 828 | N.Y. App. Div. | 1912
Lead Opinion
Appeal from the decree of the surrogate in a proceeding for an accounting, holding that a legacy had lapsed and had gone into the residuary estate.
Louise Leclere executed her last will and testament on July 9, 1886. She died in the city of New York, of which she was a resident, on February 24, 1907, and her will was admitted to probate June 10, 1907. She appears to have left no relatives.
The question here grows out of the following clause of the will: CCI give and bequeath to the Faculté de Théologie Protestante de Montauban, in France, One Hundred Thousand francs, of the currency of France, to be held in trust, to invest and keep the same invested and drawing interest and to apply the interest and income therefrom yearly and every year, to as many free scholarships, under the control of said Faculte as said yearly interest will pay for or allow. Such scholarships to be granted, first, to the sons of poor clergymen in France intending to become ministers of the gospel, as may desire the same, and secondly, in the absence of such to any poor young
She directed her executors to divide all the rest and residue of her property and estate into two shares, one of which she gave to the French Evangelical Church in the city of New York, and the remaining half to the Societe Protestante pour l’Encouragement de l’Instruction primaire en France, to be used forever by such society to increase the salaries of deserving teachers in the discretion of said society.
On December 9, 1905, fourteen months prior to the death of testatrix, the Separation Law was passed by the French Legislature and promulgated on December eleventh by the President of the republic. The said law provides: “Article First. The Republic assures the liberty of conscience. She guarantees the free exercise of religious bodies under the sole restrictions hereinafter provided in the interest of public policy. 2. The Republic does not recognize nor pay, nor subvention any cult. Consequently, on and after the first of January, following the promulgation of the present law, shall be suppressed from the State budget and from the budgets of the departments and communes all provisions relating to the exercise of cults. * * * Public establishments of worship are suppressed under reserve of the provisions contained in Article 3. * * * 3. The establishments, the suppression of which is ordered by Article 2, shall continue to function provisionally in conformity with the provisions which now govern them until the attribution of their assets to such associations as are provided for by Title 4, and at the latest until the expiration of the delay hereinafter indicated. * * * 4. Within one year from the promulgation of the present law, the personal and real property of the ‘meaces’ ‘fabriques,’ ‘conseil presbyeeraux’ ‘consistories’ and other public cultual establishments shall be with all their liens and encumbrances and with their special affectation transferred by the legal representatives of said establishments to the associations which, in conforming with the general organization rules of the cult the exercise of which they propose to assume, shall have been legally formed according to
The Faculté de Théologie Protestante de Montauban is a superior school for the teaching of theology. Its purpose is to educate Protestant ministers of the gospel. It originated in the sixteenth century. From. 1598 to 1659 it existed under the name of L’Academie Protestante de Montauban. It was transported to Puylaurens in 1659 and there existed until 1685 when it was returned to Montauban. Under the concordat entered into between Pius VII and the First Consul, July 15, 1801, and by decrees of 1808 and December 8, 1809, it was reconstituted by the French government. Since that decree it has been considered by the French jurisprudence as a public institution and it was supported by appropriations of funds from the budgets of the French government.
As appears from the testimony of the French attorney at law, “ before the law of December 9th, 1905, the faculty of Montauban was a public institution and a moral person; that is to say, it had a legal entity like a natural person, and therefore it had the capacity of acquiring property for a consideration * * * or gratuitously, * * * by gift or legacy. * * * It could act in justice and acquire property just the same as an individual person. * * * Therefore, I think the Faculty of Theology of Montauban corresponded to an American incorporated association.” Its character was religious; its business the teaching of theology; its purpose the training of its students for the profession of Protestant ministers of the gospel.
As such public institution it not only received government moneys, but its faculty and officers were appointed by the State. With all the other religious bodies which had since the concordat been so constituted and in receipt of public moneys, it was “ suppressed ” by the law of December 9,1905, as a public institution, and, therefore, separated from the French government. That is, it ceased to receive public moneys and the State authorities ceased to appoint its faculty and other officers. While it thus lost its official public character, it still exists in fact as a free faculty. The said law did not demolish said faculty and a decree of the president of the republic of June, 1907, acknowledged its existence defacto since it attrib
This faculty accepted the law of 1905 and an association or union was formed under the law — The National Union of the Evangelical Eeformed Churches of France. The French expert testified: “It was not the intention of the law of Dec., 1905, to render impossible religious worship and the recruiting of ministers of the gospel. Therefore, in Title 4 it permitted the organization of cultual associations which were to take the place of the public establishments that were to disappear. The Union Nationale des Eglises Eéformées Evangéliques de France is a union of cultual associations formed to administer Protestant religion in France. The organization of such unions was permitted in Art. 20 of the law of December 9th, 1905. * * * It originated in 1906 * * * by the union or amalgamation of several cultual associations. * * * After being duly declared it has a judicial capacity; that is to say, the capacity of suing and being sued, but its capacity of acquiring property is limited by Article 33 and the following •articles of the decree of March 16th, 1906.”
By the decree it was provided: “ Article 1. There are attributed to the National Union of the Evangelical Eeformed Churches of France with its special destination the personal property hereinafter designated which has belonged to the Faculty of Protestant Theology of Montauban suppressed from November 1st, 1906, in execution of the laws of December 9th, 1905, and July 20th, 1906, and to the Seminary connected with the said Faculty, to wit: 1. The funds in hand and the sums deposited at the Treasury. 2. The sums deposited at the Government Deposit Bank, and especially those coming from the Aurillon legacy (Decree May 23rd, 1883). 3. A certificate (nominative) of government stock 2>%. Series 5th No. 558,267, amounting to Frs. 310 (Bequest of Marie Dupuy, wife of Guedon, and bequest Paul Guedon). 4. The collections and labora
The learned surrogate has held that “The legatee named by the testatrix had, therefore, no capacity to take title to the legacy at the time of her death. Considered as a bequest in trust for the class of persons mentioned by the testatrix, to wit, poor young, men, preferably ministers’ sons, desiring to become ministers of the Gospel, for whose education the income of the fund was designed by her to support scholarships under the control of the faculty named in her will, it does not appear from any provision of French law submitted in evidence that the claimant has power to receive it as trustee for that purpose.” And, referring to the Union Rationale des Eglises Reformées Evangéliques de France, he said: “ There is no power given to the claimant, either by the said decree or by the Separation Act, so far as their provisions are in evidence, to take property by foundation, that is to say, by way of trust or other provision of a continuing nature, except that contained in Article 33, which limits such foundations strictly to remuneration for ceremonies and religious services; ” and hence determined that the legacy must be distributed as part of the residuary estate.
The testatrix had been domiciled in this State, and her personal property attempted to be disposed of by her will being located here, all questions relating thereto are primarily to be governed by the laws of this State. There can be no doubt but that she intended to create a trust for a perfectly proper a.nrl legal charitable use, the income of the fund to be used
Chapter 701 of the Laws of 1893, as amended hy chapter 291 of the Laws of 1901 (now Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 12, as amd. by Laws of 1909, chap. 144;
Being a valid trust for a charitable use, it is claimed, and the surrogate has held, that it must fail solely because of a want of capacity to take under the French law. Assuming that the surrogate was right, that neither the Faculté nor the Union had the capacity to take, we have the situation presented of a valid trust for a charitable use where no trustee was named by the testatrix, or where the trustee named is incapable of acting. It is a familiar rule of equity that no trust shall fail for want of a trustee. In Allen v. Stevens (161 N. Y. 122) Chief Judge Parker said: “As this statute is remedial in its character, it should be liberally construed with a view to the beneficial end proposed. * * * Under the provisions of the act a testator may name a corporation as trustee, or provide that a
In Matter of Griffin (167 N. Y. 71, 81) Judge Gray said: “In naming as trustee a corporation incapable of acting as such, the case is the same as if no trustee had been named in the will and under the provisions of the act, in such event, the property vested in the Supreme Court, which is charged with the duty of administering the trust for the benefit of the beneficiary. To hold otherwise would be to narrow the construction of the act of 1893 and to deny to it that practical effect, which will make it operative to save gifts to religious, charitable, educational and benevolent uses. As was formerly the rule in equity, so with this statute in force, a trust shall never fail for want of a trustee to execute it.”
In Bowman v. Domestic & Foreign Missionary Society (182 N. Y. 494) the will provided as follows: “I give, devise and bequeath the sum of two thousand dollars to be equally divided between the Indian Missions and Domestic Missions of the United States in memoriam of the late Mary A. Archer.” Werner, J., said: “ The respondent, the Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the United States of America, was duly incorporated under the laws of this State, having for its purpose the general conduct of missionary operations in all lands This society claims to be entitled to the bequest. * * * We think the trial court correctly held that the clause in question, even when read in connection with evidence adduced at the trial, was too indefinite to be construed as a direct bequest either to the defendant or to any other beneficiary. But we are also of the opinion that the bequest did not fall and that it can be supported as a trust for charitable purposes under the provisions of chapter 701 of the Laws of 1893, as amended by chapter 291 of the Laws of 1901. " " * The effect of this statute, as demonstrated in the case of Allen v. Stevens (161 N. Y. 122), was to restore the ancient doctrine of charitable uses and trusts as a part of the
In Mount v. Tuttle (183 N. Y. 358) the will gave, devised and bequeathed unto the Eev. Daniel S. Tuttle, bishop of Utah, the Protestant Episcopal missionary bishop of Utah and Idaho, in his corporate capacity, and to his successor or successors in office, the sum of $20,000, “In trust, nevertheless, to erect therewith, at such place within the limits of his Episcopal jurisdiction, as he, his successor or successors, shall select, a Protestant Episcopal Church building to God’s glory, and the further sum of Five thousand °%0o Dollars, In Trust, nevertheless, to erect therewith in the same place, a rectory for the rector or clergyman in charge of said church, to be the property of the aforesaid Protestant Episcopal jurisdiction. ” Chief Judge Cullen said: “At the time of the testatrix’s death there was no such corporation as the Protestant Episcopal jurisdiction or church of Utah and Idaho, nor has any such corporation since been created. The trial court found as matters of fact that said
Tn Matter of Robinson (203 N. Y. 380) the testatrix gave the residue of her estate to two persons named, in trust, however,
In the latter case, opinion by Mr. Justice Miller, an American citizen, domiciled in England, left personal property in England and the State of New York. He disposed of his property in New York by what is termed the American will. The provisions of the will were as follows: “ After the above legacies are paid without unnecessary delay, the sum remaining I desire
Applying the principle of the foregoing cases, it seems to me that it is our duty to declare that this legacy has not lapsed, but that it is the duty of the Supreme Court to undertake the execution of the trust for the charitable uses created by the testatrix. As said by Chief Judge Cullen in Mount v. Tuttle (supra): “We imagine that in no jurisdiction are human beings of age and of sound mind incompetent to receive money or personal property. Therefore, in the case suggested there would seem no difficulty, despite the non-residence of the trustee, in retaining the fund here where the tenure would be legal and in remitting the money as it might become payable to the foreign .beneficiaries. ”
As the Faculté de Théologie continues to exist as a defacto school of theology, and as it is entitled to receive payment for
So much of. the decree of the surrogate as adjudges that the legacy has lapsed and should be distributed to the residuary legatees should be reversed and it should be decreed that a valid trust for a charitable use was created by the will and that the legal title to such trust estate has vested in the Supreme Court and it is charged with the duty of executing the same.
Final judgment to be settled on notice to all parties including the Attorney-General which should contain the provisions to enforce such trust as is provided in section 12 of the Personal Property Law, with costs to all parties appearing and filing briefs in this court on the appeal, to be paid out of the fund.
Ingraham, P. J., Scott and Miller, JJ., concurred; Laughlin, J., dissented.
See Laws of 1911, chap. 220, adding subd. 4 to § 12.— [Rep.
Dissenting Opinion
On the 24th day of February, 190'!, Louise H. Leclere died, leaving a last will and testament, which was duly admitted to probate by the Surrogate’s Court of the county of New York on the 10th day of June, 1907, and letters testamentary were duly issued thereunder.
The 11th clause or paragraph of her will has been adjudged by the decree from which the appeal is taken to be invalid, and the legacy thereby given has been directed to be distributed as part of the residuary estate. The provisions of the will which have been declared void are as follows: “I give and bequeath to the Faculté de Théologie Protestante de Montauban, in France, One Hundred thousand francs of the currency of France, to be held in trust, to invest and keep the same invested and drawing interest and to apply the interest and income therefrom yearly and every year to as many free scholarships under the control of said Faculté as said yearly interest will pay for or allow. Such scholarships to be granted, first, to the sons of poor clergymen in France intending to become ministers of the gospel, as may desire the same, and, secondly, in the absence of such to any poor young men wish
The testatrix was a native of Paris, France, but at the time of making the will, on the 9th day of July, 1886, and of her death, she was domiciled in New York. When she made the will the Faculté de Théologie Protestante de Montauban was “ a public establishment and had a legal entity,” could take property “by gift or legacy” and hold and administer the same and could sue and be sued. It occupied under the laws of France a position similar to that occupied by corporations in this country. It and its predecessor had existed since 1698, and it was reconstituted by a decree of the French government on the 8th day of December, 1809. It was supported in part by appropriations of public funds. It was a religious institution engaged in teaching theology and training “'students for the profession of Protestant Ministers of the Gospel.” It was suppressed as á public institution or establishment by a statute known as the “ Separation Act,” which took effect on the 11th day of December, 1905. That statute authorized the “ attribution ” of the property of the institutions, suppressed as public institutions, to “cultual associations,” to be organized under a governmental decree, which was made on the 16th day of March, 1906. Although suppressed as a public institution or establishment it appears by expert testimony with respect to the French law that it still exists, de facto, and is carrying on the same work by the same professors, with the exception of three who have retired, and at the same place and in substantially the same manner, and that it is enabled to do so by funds received from the Union Nationale des Eglises Reformées Evangéliques de France, a union of cultual associations created pursuant to the provisions of the “ Separation Act” on the 2d day of February, 1906, for the administration of Protestant religion in France, to which the property of the Faculté de Théologie Protestante de Montauban, and that of all other Protestant religious organizations, orders a,nd institutions in France, was 1 c attributed ” or transferred and turned over as authorized by the “Separation Act.” Such transfer from this
This was a bequest to a foreign corporate entity on condition, or in a limited sense, in trust, to hold the corpus in perpetuity and to apply the income to a particular purpose, which was one of the principal functions performed by the legatee; but there was no trust in the strict sense in which that term is used with respect to the title to or ownership of property, and, therefore, this legacy did not contravene our statutes with respect to.perpetuiti.es and accumulations of income. (Williams v. Williams, 8 N. Y. 525; Wetmore v. Parker, 52 id. 450, 459; Fosdick v. Town of Hempstead, 125 id. 581, 595; Matter of Griffin, 167 id. 71; First Presbyterian Church v. McKallor, 35 App. Div. 98.) The validity of a bequest for a charitable use to a foreign corporation to be administered abroad depends upon the foreign law, but is to be determined by the courts of the domicile of the testator. (Robb v. Washington & Jefferson College, 103 App. Div. 327; affd. on this point, 185 N. Y. 485; St John v. Andrews Institute, 117 App. Div. 698, 714; Matter of Huss, 126 N. Y. 537; Matter of Sturgis, 164 id. 485.) There was here no gift in trust save in the sense that every gift to a charitable use in perpetuity involves a trust relationship, and is subject to supervision by the law and courts of the jurisdiction in which it is to be administered, and the gift was direct without the intervention of a trustee. (Catt v. Catt, 118 App. Div. 742, 750; Matter of Griffin, supra; Bird v.
I am also of opinion that if this bequest were construed as' an attempt to make a bequest on an express trust it could not be sustained. In that view the legatee would be both trustee and beneficiary, and under the well-settled rule the trust would merge. (Robb v. Washington & Jefferson College, supra.) In a sense of course the students selected for the free scholarships would be beneficiaries, but the testatrix did not contemplate that they should receive the income, although she attempted to provide that they should be benefited thereby. The vulnerable point in such a theory of construction is that the trust, whether it be regarded strictly as an express trust, or in the broad sense that every bequest to a charitable use in
It is manifest that there could be no supervision by our courts, and it does not appear that there could or would be any by the courts of France over the use of the income if paid over to it as proposed by the majority opinion. The title and beneficial use are here given to the legatee. The legatee having no authority to take this legacy at the time of the death of the testatrix the bequest was void (Owens v. Missionary Society of M. E. Church, 14 N. Y. 380; approved in Mount v. Tuttle, 183 id. 366; St. John v. Andrews Institute, supra; White v. Howard, 46 N. Y. 144; Murray v. Miller, No. 1, 85 App. Div. 414; affd., 178 N. Y. 316), and it lapsed and became part of the residuary estate. (Carter v. Board of Education, 144 N. Y. 621; Holland v. Alcock, 108 id. 312.)
I am of opinion, therefore, that the decree was right and should be affirmed.
Decree, in part, reversed, and final decree directed to be entered as indicated in opinion, with costs to be paid out of the fund to all parties appearing and filing briefs in this court. Order to be settled on notice to all parties, including the Attorney-General.