82 N.J. Eq. 546 | New York Court of Chancery | 1913
The bill is filed to obtain direction and a construction of the will of Edmund West, who died May 8th, 1885, leaving a last will and testament duly executed and admitted to probate in the office of the surrogate of the county of Monmouth, whereby he gave the sum of fourteen thousand dollars ($14,000) to his executors therein named to pajr the income thereof to one Rufus T. West, and to one Emma D. West, during their joint lives, and upon the death of the survivor, without either of them leaving issue, then to pay the said sum of fourteen thousand dollars ($14,000) to the complainants, the rector, wardens and vestrymen of St. James Church, in trust, for the purpose of building and erecting a church to be named "St. Mary’s Episcopal Church,” on a certain tract of land conveyed by the testator to the complainants during his lifetime, which tract of land is situated near Wolf Hill, in the township of Eatontown, in the county of Monmouth and State of New Jersey; the said church to be built within the space of three years after the happening of the contingency upon which, the said gift was to take effect. Emma D. West died on the 31st day of December, in the year 1896; Rufus T. West died on the 8th day of February, in the year 1908, neither of them leaving any issue, and upon the death of the said Rufus T. West, the said sum of fourteen thousand dollars ($14,000) came into the hands of the complainants. At the time of the death of the said testator, the neighborhood of Wolf Hill was a growing and flourishing one by reason of the Monmouth Park Association, which were used during many months of the 3rear for the racing of horses, furnishing emplo3rment to large numbers of persons in the vicinity and attracting
In view of these facts it seems to me highly undesirable and contrary to public policy to carry out the particular intent of the testator to complete a church building to be named “St. Mary’s Episcopal Church” on the tract of land in question.
The learned and exhaustive opinion of Judge Green, in the ease of MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. (1 Robb.) 652, clearly establishes the doctrine of cy pres in the jurisprudence of this state. In this case the New Jersey decisions on the subject are considered with the greatest
The suggestion of the solicitor of the residuary legatees, that the trust is void for impossibility, does not appear by the facts in this case. The charitable legatee here not only exists but is able to carry out the trust, and applies to this court for an application of cy pres, so that the terms of the trust should be modified so as to meet conditions which have changed since the making of the will.
It appears from the last will and testament of the testator that his general charitable intent in making the gift was to benefit the Protestant Episcopal Church in the neighborhood of Wolf Hill, and I am satisfied that it was his will that such general charitable intent be carried out in the event that it should prove undesirable, impracticable or contrary to public policy to carry out the particular intent.
My conclusion is that the defendants, the next of kin of the testator, are not entitled to any of the fund, and that the said fourteen thousand dollars ($14,000), with its accumulations, must be disposed of by the complainants for the benefit of the Protestant Episcopal Church in the United States of America in the neighborhood of Wolf Hill, in such a manner as will most nearly effect the general charitable intention of said testator, Edmund West, and the complainants must propose a scheme in this court for the disposition of the said fund in accordance with the findings of the court.
The cross-bill of the defendants will be dismissed.