87 A.D. 438 | N.Y. App. Div. | 1903
The appeal in this action is from a judgment of the Special Term, giving construction to the last will and testament of Stephen Whitney Phcenix,. deceased, and settling the accounts of the executors and trustees under that will.
The question wé are called upon to decide is whether Columbia College in the city of New York has the right and power to take, under the will, so much of the residuary estate of the testator as consists of certain real estate and the proceeds of other real estate realized by the executors and trustees, under the execution of a power of sale contained in the will. The action was brought by the executors and trustees of the will, who, being, in doubt as'to the Operative effect of its residuary clause, sought the aid and direction of the court and asked it to define and determine conflicting claims made, on the one hand, by the heirs and next of kin of the testator and the devisees and legatees of a sister of the testator, and, on the-other, by Columbia College. The controversy is limited to the real estáte, there being no dispute as to the right of the college to take the ■personal property under the provision for its. benefit made in the will.
Stephen Whitney Phoenix, the testator, died in November, 1881, leaving a last will and testament, with codicils thereto, and such will and codicils were duly admitted to probate by the surrogate-of New York on -the 28th of November, 1881. The right of Columbia College to take real estate under this will and its codicils is challenged
First- That under the terms of the will and in view of the intention of the testator gathered from such terms and from his purpose in making the gift to the college and from such considerations as legitimately may be resorted to to ascertain intention, that gift is to be considered as entirely one of personalty ; or, in other words, that to make the gift effective and to carry out the intention of the testator, the property will be regarded as having been equitably converted from realty into personalty.
Second. That the right of Columbia College to take, or to take and hold, real estate is determinable by the law as it existed in the Colony of New York at the time the original charter was granted to that institution of learning in the reign of King George II; that according to that law the Statutes of Mortmain of England furnish guides for the construction of that charter which in effect was a license in mortmain ; that the college was at that time entitled to take real estate to any amount, subject only to the condition that an excess beyond the amount authorized by the charter might be •taken away by the King or subsequently by the State, as the successor of the King ; that the charter with its legal incidents is a contract which cannot be impaired by legislation, and that the heirs at law of the testator, or those claiming under them, have no standing to wage a contest respecting this residuary estate or the proceeds of such real estate as has been sold by the executors and trustees under the power, of sale.
Third. That at the time of the death of the testator, and when his will became operative, Columbia College had not, in fact or in law, exhausted its power to take and hold real estate, or its proceeds, under the will of the testator.
After making specific bequests, he gives, devises and bequeaths all the rest, residue and remainder of his estate, real and personal, as follows : “ One equal undivided third "part thereof' to my executors and trustees hereinafter named, or the survivors or survivor of them, or their or his successors or successor, in trust to receive the rents, issues, profits,'income-and interest to accrue thereon, and to pay the same, after deducting all lawful charges incurred in upholding said estate, to my said sister Mary-Caroline Warren, wife of George Henry "Warren, in semi-annual payments, during the term of her natural life, and upon her death, or upon my death, should I survive my said sister, I give, devise and bequeath the principal of- said share to the Trustees of Columbia College in the City of New York, for the purpose of founding and maintaining one or more, Professorships in the Scientific Department of said College, now known as the School of Mines, or by whatsoever name the same may be hereafter called.” He then proceeds to, make a similar Specific disposition of another third part of the residuary estate, with the life beneficiary changed to his brother Phillips PhoBnix, and the third remaining equal Undivided third part he disposes of in "the same word's, with the exception that his brother Lloyd Phoenix is made the beneficiary for life. By the 9th clause he provides as follows: “ I authorize and empower my said executors and trustees and the survivors or survivor of them, of their or his successors or successor, at any time, to sell, mortgage, lease or convey any portion of my real estate, whether owned- by me severally or jointly"; to make exchange of all or any portion's thereof,, and to unitó im amicable partition thereof. Giving them full power, to make and execute all lawful deeds or other assurances in the premises. It is my wish that all real estate owned by me jointly with my sister and brothers, Or with other persons may be held in common so long as may be necessary to protect the interests of my estate -and the estates of my said -sister and brothers, and said Other persons, providing the same may lawfully be done.” He- then appoints executors and trustees'. Of the two codicils annexed to the will, the first has no pertinency at the present time. By the second, he makes a
Upon a careful examination of the provisions of the will under consideration, we are not able to concur with the view of the learned referee, that Columbia College takes the residuary estate as personal. property. The inquiry is as to the intention of the testator. It is-the rule of law in this State that such intention must appear plainly, distinctly and unequivocally. (Scholle v. Scholle, 113 N. Y. 261 Clift v. Moses, 116 id. 144.) An intention to convert may be manifested in various ways: First, by a positive direction to the executors or trustees to make it; which is not this case, for there is no Command that a sale be made; second, the intention may be ascertained from the necessity of a sale, in order to carry out the general scheme. of a testator; which is also not this case, for the general scheme here is merely.the creation of life interests in undivided thirds, with remainders over to Columbia College upon the expiration of the particular estates.; and third, the property may be deemed tO' be equitably converted, when the purpose of the testator would fail without such conversion. In the present case there is nothing but a. discretionary power of sale. It is one of the class sometimes referred to as powers for administration to aid in the convenient settlement of. estates. The executors and trustees are authorized and empowered either to sell, mortgage or exchange all or any of the. real estate which the testator owned jointly or in severalty. In Phelps Execu
In Asche v. Asche (113 N. Y. 235) it is said that the necessity of a conversion to carry out the purpose of a testator will be deemed to be a positive direction to convert; but in Chamberlain, v. Taylor (105 N. Y. 194) it is remarked that an equitable conversion never will be presumed, unless it is required to carry out a lawful purpose expressed in the will of the testator. So, also, in Matter of Tatum (169 N. Y. 518) it is said that unless the purpose of the testator will fail without a conversion, equity will not presume it. If the property is to be deemed as equitably converted, it would become the duty of the executors or trustees to sell. In White v. Howard (46 N. Y. 162) it is said that in order to constitute the conversion of real estate into personal it must be the duty of, or obligatory upon, the trustees to sell it in any event. If an equitable conversion is operated here, the trustees of Columbia College would be ■entitled to receive the residuary estate as money; but it is evident from an examination of the terms and provisions of the will now before us that the testator intended that the college should receive that residuary éstate in the form in which it existed at the expiration of the beneficial interests of the life tenants respectively. This will was evidently prepared by a skilled draftsman. Looking at the instrument itself, and without reference to the 2d codicil, we find the intention of the testator clearly expressed that the remainder interests shall go to Columbia College in the manner suggested, for as to each of those interests the testator provides not only for a gift over after the death of his sister and each of his brothers, but specifically makes provision that in case of the death of either of them before he, the testator, dies, then the whole of the undivided -equal third part shall pass to the college as a direct gift, for the purpose of founding and maintaining professorships in the college. "With these provisions is associated, by a subsequent clause of the will, only the general power of sale for administration, above referred to.
Upon a fair construction of the will and the codicil we must reach the conclusion that not only is the intent to have the realty converted into personalty not clearly and unequivocably expressed,, but that it is plain that the testator intended that the college should take the residuary property as it should stand when the trust estates terminated.
We are not able to accept the conclusion of the learned referee / that the power of Columbia College to take real property under the will of Mr. Phoenix is to be determined exclusively by the law as it existed in the Colony of Hew York at the time the charter was granted in 1754 to the college. The right and power of the college in that regard are not derived only from the royal charter, but come from an enlarged and additional and new authority contained in the charter of 1810, granted by the State of Hew York. The referee’s proposition, if we apprehend it correctly, seems to be that every question of power is referable to that royal charter and the colonial law as it existed when that charter was granted; that it constitutes a contract made with the corporation, confirmed by the State Constitution of 1777 and all subsequent State Constitutions, the obligation of which, as a royal grant, made prior to October 13j 1775, cannot be impaired. Apparently, as the learned referee understands the law as it existed when the original charter was granted, the college had unlimited power to take real property, subject only to liability to forfeiture by the King of an excess in value of property so taken over and above the amount specified in the charter. A thorough and exhaustive argument has been made in support of that view by counsel for the college-and recourse has been had to all accessible sources of information to ascertain what the law of the colony which is assumed to have been the law of England, relating to the subject, was, but we are not convinced that the views of the referee should prevail. A grant or devise of realty would be effective either to pass title from the grantor or devisor, subject only to the right of the sovereign to enforce a forfeiture, or the limitation of the power con
We are aware that there are dicta of learned judges, to the effect that such statutes were operative in the State of blew York up to the time of the repealing act of February 27, 1788 (Chap. 46, § 37). Judge Weight remarks, in Yates v. Yates (9 Barb. 338), that there is positive evidence that the British Statutes of Mortmain were in force in the Colony of blew York, but that evidence is not referred to; and Judge Dube, in Ayres v. Methodist Church, etc. (3 Sandf. 368), states that there is certain evidence that the Statutes of Mort-main were in force prior to 1788, and refers to section 4 of chapter 18 of the Laws of 1784 as authority. That was an act to enable . religious denominations in this State to appoint trustees, who should be a body corporate, for the purpose of taking care of the temporalities of their respective congregations, and for other purposes; and by section 4 certain powers and authority are vested, in them, allowing them to take by gift, grant or devise, although “ such gift, grant or devise may not have strictly been agreeable to the rigid rules of law, or might, on strict construction, be defeated by the operation of the Statutes of Mortmain; ” which is not a legislative declaration that those statutes existed, but only an intimation that they may have existed.
Chancellor Kent says that the Statutes of Mortmain never had
We are also aware that in Bogardus v. Trinity Church (4 Sandf. Ch. 758) the learned vice-chancellor held that the question as to the faking or holding of real estate by a corporation in excess of the annual value authorized by its charter, is one between the ■ corporation and the sovereign power, in which individuals have no concern, and of which they cannot avail themselves in any mode against the eorporation." But in the McGraw Case (supra) Judge Peokham, writing for the court, says that the observation of the vice-chancellor in the Bogardus case that only thé sovereign power would have the right to question the right or power of a corporation in taking land, was mere obiter dictum,- and that upon an examination of all the eases cited by the learned vice-chancellor facts were not presented which required a determination of that question, and we are constrained to take the same view of the vice-chancellor’s remark. The ■opinion of Robertson, Ch. J., in Lathrop v. Commercial Bank of Scioto (8 Dana, 114) is instructive and convincing as to the effect and operation, locally only, of the English Statutes of Mortmain, and his citations from the opinions of English judges as to those statútes mot extending to British colonies are very much in point.'
. It becomes appropriate at this "point to advert to the history of the chartered powers' of Columbia College to take and hold real estate and to refer to the various sources of that power as contained in legislative enactments and grants. All of such legislative enactments are enlargements of power and not restrictions. If it is said that the original royal charter constitutes a contract with the college which cannot' be impaired and that such contract includes, power to take and hold real estate, subject only to forfeiture by the sovéreign then the prohibition upon the impairment of the contract would apply only to the power acquired under that charter and not to the -additional power conferred by another charter, granted by the State, accepted' by the corporation, and to be construed and exercised in accordance with -the laws of the State. The additional grant of power thus made and' accepted was not made subject to the law existing when the original charter was granted, but subject to the law existing when the additional p.ower was bestowed.
In examining thé legislative enactments and the grants, both Colonial and State, made to what is now Columbia University, One cannot fail to be impressed-with the importance attached to that institution in the system of education in New York. As early as 1746 (Laws of 1746, chap. 840) an áct was passed entitled, “ An Act for
The college was also known as Kings College, and, by chapter 51 of the Laws of 1784, certain privileges were granted it by the State of Hew York and its name was changed to Columbia College. That act provided that all the rights, privileges and immunities theretofore vested in the college be vested in the Regents of the University, who were erected into a corporation and enabled to hold, possess and enjoy those rights, privileges and franchises which pertained to the college; but in 1787 an act (Chap. 82) was passed to institute a university within the State, and by it Were repealed the acts of 1784.
This act of 1810 was accepted by Columbia College. It very, greatly enlarges and expands the power of the college respecting the amount and value of real estate it is authorized to acquire, and
.The evidence in the record shows that at the time' of the testator’s death the college had not acquired, under the power conferred by the charter of 1810, real estate, the annual value of which exceeded the limitation contained in that charter. As we read this record, the contention of the college is maintained by the evidence, namely, that the real estate owned by it in 1881 consisted of property acquired before the act of 1810 was passed, and property acquired
The second piece is called the Upper Estate of the Botanic Garden Property, which was granted by the State to the college in the year 1814, and is held entirely independent of the limitation contained in the charter of 1810. As is argued by the counsel for the college, the grant coming from the State itself would not have been invalid though the corporation had no previous power to take and hold real estate. But, considering the history of this particular grant, we think it is manifest that the Legislature intended that it should be a grant to the college independently of the charter limitation. To quote from the record : “ The Colony of New York or the State of New York, shortly after the Declaration of Independence, undertook to convey to Columbia College certain lands in what was called the new County of Gloucester, in the Township of Norbury. In the discussion which followed, in the difficult times, for the settlement of what is now the State of Vermont, it was then called New Hampshire grants. The ratification of the boundary line
It also appears in the record that by chapter 38 of the Laws of 1790 and chapter 105 of the Laws of 1802, the Regents of the University were authorized to grant and convey to the trustees of Columbia College and Union College and their successors those lands and others. It was intended by the State of' New York that the proceeds of these lands should be used for the colleges and for academies throughout the State which were chartered by the Regents. The title to the lands was never taken by Columbia College, but it received certain proceeds after they were sold by the Regents. The grant of the Upper Estate, so called, to Columbia College was apparently made as a compensation for the loss which the college would sustain by reason of its inability to receive the benefit which it was intended it should derive from the lands situated in Vermont, and thus the inference is justified that there was a specific intent of the Legislature in granting this Upper Estate to the college to indemnify it for the loss of a substantial gift made prior to 1810 by an independent grant which should not be in any way affected by the limitation contained in the charter of 1810.
The third piece of property admittedly owned by the college in 1881 is called the Educational Site. It is the property at Forty-ninth street and Madison avenue, in the city of New York. It Was acquired by the college under authorization contained in two acts of the Legislature, the first being chapter 132 of the Laws of 1857 and the other chapter 51 of'the Laws of 1860. By the first-mentioned act the trustees of Columbia College were authorized to purchase and take and hold in fee. simple and dispose of all land bounded northerly by the southerly side of Fiftieth street, southerly by the northerly side of Forty-ninth street, easterly by a line parallel with and 100 feet distant westerly from the westerly side of
The finding of the referee seems to be undisputed that the total annual value, at the time of the death of the testator, of the entire remainders which the testator attempted to devise to the trustees of Columbia College, was $9,898.76.
■ Briefly to recapitulate and formally state the conclusions at which , we'have arrived : First, Columbia College does not take the residuary estate of the testator as personal property.
Second. The power of the college to take the residuary estate of the testator is not controlled by its charter of 1754, construed by the law as it then existed, respecting the powers of corporations To take and hold real property. The power of the college to take under the. will-of Mr. Phoenix is derived from the charter of 1810, which conferred a new power, and the right to question the validity of grants and devises in excess of the amount of real estate authorized to be taken by that charter does not inhere in the State alone, but such fight may‘be questioned by the heirs of the testator, or those claiming under such heirs.
Third. At the time of the death of the testator in 1881, Columbia College did not own real estate, the annual value of which exceeded the $20,000 limitation contained in the act of 1810.
■The judgment appealed from should be affirmed, with-costs.
Ingraham, McLaughlin, Hatch and Laughlin, JJ., concurred.
Judgment affirmed, with costs..
See Laws of 1785, chap. 15 (Weed, Parsons & Co. reprint).—[Rep.