50 N.J. Eq. 554 | New York Court of Chancery | 1892
This suit was brought to procure a construction of the will of George D. G. Moore, deceased. His executor is the complainant. He says that in attempting to execute his testator’s will he finds himself confronted by several questions, so difficult- to solve,, that he ought not to be required to act in respect to them until his duty has been judicially defined. An executor, or any other person charged with fiduciary duties, has an undoubted right in cases where his duties or his rights are involved in doubt, so-that he cannot act without risk of doing wrong either to himself or others, to ask judicial direction.
The testator died on the 13th day of October, 1891, leaving-a will consisting of three distinct papers—-first, a will proper,, bearing date June 17th, 1889; second, a codicil, bearing date January 24th, 1891; and, third, a second codicil, bearing date October 5th, 1891. He died, it will be noticed, eight days after the last codicil was executed. He left a widow, but no issue» In the interim between the date of the last codicil and the day of his death he married his second wife. He owned at the time-of his death real and personal estate in this state, and some real' estate elsewhere, from which, the complainant believes, not much-over $60,000 can be realized. His pecuniary legacies amount to-
The first point on which the complainant asks for instruction is, whether or not it is his duty to pay a legacy given to the proprietors of the Rosedale cemetery. The legatee is a corporation formed for the purpose of acquiring land to be held and used exclusively for the-burial of the dead. The sum originally given was $400, but the first codicil increased it $100, making the total gift $500. The words of the original gift are:
“ I order and direct that there -shall he paid immediately after my death to The Proprietors -of the Eosedale Cemetery the sum of §400 for the perpetual care of my burial lot in said Cemetery, the interest to be used and applied to caring for and ornamenting said lot by keeping flowers planted and growing thereon as I have done as nearly as the said interest will allow.”
The validity of this gift is doubted. The ground of doubt is whether, inasmuch as the gift creates a perpetual trust for a purely private 'purpose, and is not, therefore, a gift for a charitable use, it is not void on the ground that it violates the rule against perpetuities. Professor Gray defines this rule as follows : “ No interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.” Gray Perp. § 201. The rule applies to the creation of both legal and equitable interests, and interests in. both real and per
. This difference in the form of the two legacies raises this. question: Are corporations, created for the purpose for which the legatee in this case was created, authorized by law to take property, by gift, subject to a perpetual trust for the purpose of keeping the burial lot of the donor in the cemetery of the legatee perpetually adorned with flowers ? ISTo doubt can be entertained that the rule against perpetuities may be altered or abolished by the legislature. By an act passed in 1878 it was enacted that any cemetery association within this state, existing under special charter or by general law, may take and hold any property bequeathed or given upon trust to apply its income to the planting and cultivation of trees, shrubs, flowers and plants in and around
The next, question involved in doubt is, Whether the specific legacies must, in obedience to the intention of the testator, abate with the general pecuniary legacies ? There will be, as already shown, a very large deficiency of assets. To show how the question just stated arises, it is necessary to make a preliminary statement. The testator, by his will proper or first testamentary paper, after giving the legacy to the Rosedale cemetery, which has just been considered, gave his executor $10,000 in trust, with direction to invest it and pay its net annual income to his sister Harriet during her life, and he also authorized his executor, in case the income should not be sufficient to furnish his sister a comfortable support; to apply so much of the principal as should, in his judgment, be needful for that purpose. Then, after giving several other legacies, both specific and general, he gave all the rest and residue of his estate to his executor, in trust, “ to apply and pay the same to and for the purpose of a home for respectable aged people of both sexes,” provided such a home should be established within five years from the time of his death. And he further directed, in ease no such home should be established within the time limited, that then his residuary estate should be divided and distributed pro rata among the legatees before named in his will, in proportion to their respective moneyed legacies, and that for the purpose of such division and distribution the legaciés of bank stock should be reckoned at the market value of the stock, and the mortgages given by the fifth clause of his will should be considered as a legacy. The testator does not say, it will be observed, that the mortgages shall be considered and treated as a money legacy, but, on looking at the whole will, and thus discerning his general testamentary scheme, it is made quite clear, I think, that that is what he meant. The gift of the mortgages, made by the fifth clause of the will, is in these words:
*560 “ Whereas I hold a mortgage executed to me by my niece Sarah M. Walsh, and her husband, Zachariah Walsh, for $1200; and whereas the Howard Savings Institution, of (Newark, also hold a mortgage, given by the same parties, for S2250, both being on the same property, to wit, her house in Sixth street in N ewark, I direct my executor to pay off said mortgage to the Howard Savings Institution and take an assignment of the same, and hold both of said mortgages for the use and benefit of the two youngest children of my niece, viz: Robert Walsh and Adaline H. Walsh, but no interest is to be paid on said mortgages by the said Sarah Walsh or Zachariah Walsh during their lives, or the life of the survivor but upon the death of both the same shall become the property of the said Robert and Adaline, or the survivor of them.”
The testator gave thirty shares of bank stock, ten shares each to three different persons, and each gift is made, excepting the name of the legatee, substantially in this form: “ I give to my friend Mrs. Frances D. Stanwood ten shares of my Essex County National Bank stock.”
The preceding statement discloses everything which can be gleaned from the two first testamentary papers—the will and first codicil—tending to show the respective rights, in point of law, of the legatees to whom bank stock, mortgages and specific chattels are given and the legatees to whom general pecuniary legacies are given, in case sufficient assets were not found to satisfy all. Up to this time, it will be observed that the testator has disposed of nothing, by way of residue, except such part of his estate as should remain undisposed of after all his legacies had been satisfied. But his testamentary scheme, in this respect, is radically changed by his second or last codicil. He had disposed of his residuary estate by the twentieth clause or paragraph, of his original will. Now, by the last codicil, in place of the residue given by the twentieth clase of his will, he says:
“ I give to my executor in trust the sum of $50,000, the interest thereon to be paid to Mary S. Eitch (with whom I am shortly to be joined in marriage) during her life, in semi-annual payments, the first payment to begin a tsix months after my death; and at her decease said $50,000 to go as provided in said twentieth clause; * * * said bequest to be in lieu of dower in my estate. And in case said residue shall not amount to the said sum of $50,000, then I direct that the other legacies (except that to my sister and that to the Cemetery Company) shall abate in proportion, so that at all events the sum of $50,000 shall be available for said purpose.”
' The gift of the mortgage held by the testator himself, and the-three bequests of bank stock, are specific. That that is their legal character I do not think is open to discussion. Any words-which clearly manifest an intention on the part of the testator to give a specific thing constituting part of his estate, as distinguished from all other things of the same kind, and which it appears he did not use to designate quantity, or to describe the special character of thing he wanted to give, though constituting no part of "his estate, will make the legacy specific. Thus a legacy of stock, as was said by Chancellor Green, in Norris v. Thompson’s Executors, 1 C. E. Gr. 218, 222, “ may be rendered specific by the use of the term ‘ my stock,’ or the stock or part of the stock now ‘ in my possession,’ or ‘ standing in my name,’ or ‘ owned by me.’ ” The same rule will, of course, apply to the bequest of a mortgage or other security. The things given by the will under consideration in the case just cited were stocks and bonds of two corporations. They were not described by the testator, in the bequest, as his stocks and bonds, or as standing in his name, or as owned by him, but he simply said that he gave a certain number of shares of the capital stock of a designated cor
It is equally certain, in my judgment, that the testator’s direction to his executor to pay off the mortgage held by the Howard Savings Institution and take an assignment of it, is not entitled to be regarded as a specific legacy, but is, at most, a mere direction to invest a certain sum of money in a particular security, and must, therefore, according to the well-settled rule, be held to be a general legacy. The gift, in its essence, is a gift of money, and hence must be regarded, so far as its rank is concerned, as standing precisely on the same footing as the other pecuniary legacies stand.
The decision of the question whether or not the specific legacies stand on the same foundation that' the general legacies do, so far as their liability to contribution or abatement is concerned, must, of course, be controlled by the intention of the testator. Both classes of legatees derive their rights from his will, and if
On the argument, it was suggested as probable that the testator meant that the legacies of the mortgage and the bank stock should abate, but not the other specific legacies. No distinction of that kind, resting on the basis of legal principle, can be made. They are all strictly specific in their legal character and stand,, manifestly, on the same foundation in point of law¿. and must be dealt with in the same way. In my judgment, the testator meant that all his other legacies, both general and -specific, should give way in proportion—that is, equably—in order to provide a fund of $60,500 for the benefit of the three legatees whose rights he intended should be paramount to all the others.
The testator has directed that certain legacies, given to infants, shall be paid to them on their attaining the age of eighteen years. The complainant asks whether or not it is his duty to pay these' legacies to the legatees before they attain full age. I think it is-not. It is the duty of an executor, on paying a legacy, to take a refunding bond for the protection of creditors. An infant is-not competent to execute such a bond, but his guardian may execute it for him. Rev. p. 581 §5. A testamentary direction which contravenes the law, or which, if executed, will deprive-
The testator has, in three instances, in making bequests to religious corporations, departed slightly from the names under which they were chartered. For example, he makes a bequest to the German Theological School located at Bloomfield, New Jersey, when in fact there is no corporation of that precise name, but there is one, having a theological school or seminary at Bloomfield, New Jersey, whose name, as given in its charter, is the German Theological School of Newark, New Jersey. The description of the legatee, given in the bequests under consideration, is, in each case, sufficiently accurate to enable the court, with the aid of very slight extrinsic evidence, to identify the legatee with entire certainty. When that is the case the misnomer will not defeat the gift. Smith’s Executor v. Presbyterian Church, 11 C. E. Gr. 132, 139. Extrinsic evidence is competent in such cases. Where a testator gave the residue of his estate to be equally divided between “ the board of foreign and the board of home missions,” without other or further description, it was held that it was competent to show by extrinsic evidence what corporations were meant, by showing to what church the testator belonged, in what boards, connected with his church, he took an interest, and to which of such boards he was in the habit of contributing. Gilmer v. Stone, 120 U. S. 586. To the same effect is the decision of the supreme court of Massachusetts in Hinckley v. Thatcher, 139 Mass. 477. With the aid of the extrinsic evidence in this case there can be no doubt at all about the identity of the corporate legatees.