Rainey v. Laing, 58 Barb. 453

Rainey v. Laing

58 Barb. 453 | N.Y. Sup. Ct. | 1871

By the Court, Cardozo, J.

It is a mistake to suppose that the law of trusts has any application to this ease. There is but one trust created by the will, viz., the one mentioned in the third clause, and upon that no question arises here, and its only relevancy is so far as it tends to confirm the view that the fifth clause does not and was not intended to create any trust.

The third clause shows that the testator was well advised as to the proper language to be employed when the bequest was to be held in trust; and .that he did not use similar phraseology in the fifth clause, goes only to show that the devise therein mentioned was not intended by him to be construed otherwise than by its terms he has *489expressed it. By that clause (5th) the testator gave the property to the general synod of the Beformed Dutch Church, “ to be applied to the support and education of pious and indigent young men preparing for the gospel ministry in that churcha purpose which was, in the highest and holiest sense, both “religious and charitable.” The devise is absolute in its terms; no condition whatever is imposed. That the testator declares that he gives the property to the synod for one of the only purposes to which by law it could appropriate its property, certainly should not defeat his pious and charitable design. The statute incorporating the synod expressly provides that its property shall not be appropriated to any other than religious and charitable purposes; and all that the testator has done is to say the same thing. As the fee vests absolutely in the synod, there can be no doubt of the validity of this provision of the will.

The question whether the property, with that which the synod now holds, would exceed in amount the sum to which its charter restricts it, cannot be tried in this action. That question is not to be determined collaterally, but only in a direct proceeding by the State. The condition imposed in the act of incorporation is not against taking, but against taking and holding. (See Runyan v. Coster, 14 Peters, 128, and cases there reviewed.) The corporation, therefore, can take. Whether it can hold, is another question, not necessary nor proper in this collateral way to be considered; which is purely one of public policy, with which individuals have no concern, but in which the State, as the sovereign, is alone interested, and which it may either raise or waive, according to its pleasure. (Humbert v. Trinity Church, 24 Wend. 630. Bogardus v. Trinity Church, 4 Sandf. Ch. 758. In re Ref. Pres. Church, 7 How. Pr. 476. Trustees of Vernon v. Hills, 6 Cowen, 23. All Saints Church v. Lovett, 1 Hall, 191. Angell & Ames on Corp. 746, 747, and cases there cited.)

*490[First Department, General Term, at New York, February 7, 1871.

The judgment of the special term should be reversed, and judgment ordered in accordance with this opinion, (Edmonston v. McLoud, &c., 16 N. Y. 543.)

Judgment reversed.

Ingraham, P. J., and Cardozo, Justice.]