66 How. Pr. 246 | N.Y. Sup. Ct. | 1883
— This is an action for the construction of the last wills of Margaret Burr and Mary Burr, and for the distribution of the estate under these wills respectively.
The controversy arises mainly between the defendants, who claim to be next of kin of the testatrices and of their sister, Sarah Burr, and the representative of such next of kin on the one hand, and the defendants the several charitable, religious and missionary corporations on the other hand. The individual defendants, bearing the same degree of kinship to Margaret Burr and Mary Burr as they do to Sarah Burr, are not, nevertheless, in any legal sense the next of kin of either Margaret or Mary, for, at the death of Margaret, her only next of bin were the surviving sisters Mary and Sarah, and at the death of Mary, her only surviving next of kin was Sarah. The individual defendants are, however, the next of kin of Sarah Burr, and consequently are interested in having her estate realize as much as may be from the estates of her deceased sisters, and for that reason ought to be -heard, in the case as though they "were in fact the next of kin of the persons whose wills are under consideration.
In the year 1862, these three sisters were the owners in equal proportions of considerable real and personal property, which is commonly referred to as the joint Burr estate. Margaret Burr died on the 24th day of September, 1862, leaving a last will and testament which bears date August 11, 1862. Mary Burr died on July 8, 1865, and Sarah Burr died March 1, 1882.
It is claimed by the next of kin of Sarah Burr that the wills of Margaret and Mary Burr are void under the statute against perpetuities, in thdt they suspend the power of alienation for more than two lives in being. The material portions of the wills which provoke this opposition to their validity
The legacies referred to giving to charities by the fifth clause of the will are made payable within four years from the death of the survivor of the sisters. By the codicil to Mary Burr’s will the legacies to charities were directed to be paid within two years from the death of her sister Sarah.
I do not find in either of these wills any suspension of the absolute power of alienation of the real estate for more than two lives in being at the creation of the estate. Without specially adverting to the numerous cases upon the general subject, I deem it necessary to refer only to the case of Robert agt. Corning (89 N. Y., 225). At page 235 the court says: “ The rule declared in this section (1 R. S., 723, sec. 14) con
Under this decision there was not in the case of either of these wills a moment of time when the executors did not have it in their power, acting in accordance with the provisions of the will, to sell and dispose of the real estate and convey a perfect title thereto. The mere fact that they did not sell is of no significance in my judgment. Furthermore, there was an equitable conversion of the real' estate into personalty immediately upon the death of the survivor of Margaret’s sisters, and in their hands the profits of the real estate received by the executors would go with and be deemed a part of the converted fund. As is held in Lent agt. Howard (89 N. Y.,
In my judgment the legacies to charities in these wills are not invalid by reason of the directions there given that they should be paid within four years in one will, or within two years in the other, from the death of the survivor of the sisters respectively. As was held in Gilman agt. Reddington (24 N. Y., 18) a vested legacy payable in three years, or at other periods depending on a life or two lives in being, is legal. The words prescribing the time within which the legacies should be paid are not, in their nature, in the way of any enlargement of the time, but are used by way of restriction. The title of the legatee to the legacy immediately attached upon the death of the testatrix (Manice agt. Manice, 43 N.Y., 382).
I come now to the question of the validity of the several bequests to the charitable and religious corporations, arising upon the special provisions of their charters. Among all of the defendant corporations I do not find but two which fall within the restrictions made by chapter 319 of the Laws of 1848, by which a bequest to a benevolent, charitable, scientific or missionary society, shall not be valid in any will which shall not. have been made at least two months before the death of the testator. Margaret Burr died within the two months after the execution of her will, and it follows, therefore, that any bequest to any religious or charitable societies, which come within the inhibition of this statute are invalid and fall into the residuum of the estate. These are the Children’s Aid Society and St. Luke’s Hospital, which were organized under that act. The bequests to them, how
No question arises in regard to the existence of the corporation known as the Episcopal Society for the Promotion of Evangelical Knowledge, except the proof as to its organization, which was disposed of at the trial. But it is claimed ■that the legacies to the Domestic and Foreign Missionary Society of the Protestant Episcopal o Church in the United States of America are void because of misnomer. It is shown by the evidence that the Missionary Society of the Protestant Episcopal Church for Foreign Missions, The Board of Missions of Protestant Episcopal Church for Foreign Missions, The Board of the same church for Domestic Missions, The Foreign Missionary Society of the Protestant Episcopal Church of the United States, mentioned in these wills, were all intended to be for the defendant The Domestic Foreign Missionary Society of the Protestant Episcopal Church in the United States of America.
I need not refer to the proof in detail. The object of the testatrices’ bounty is here clearly ascertained. The corporation may be designated by its corporate name in the will by which it is usually or popularly called or known, or by the name or description by which it can be distinguished from every other corporation (Lefevre agt. Lefevre, 59 N. Y., 434; St. Luke's Hospital agt. American Association, 52 N. Y., 191). And, without going over the same ground as to each of the different corporations mentioned in these wills, where the precise and technical name was not actually used, I refer
It is further objected against the validity of the legacies to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States, that in the years 1862 and 1865, it held, and now holds, personal property beyond the limit placed by law. This is not tenable. By its original charter the net income of said society arising from its real estate could not exceed $2,000 annually. By the fourth section the corporation possessed the general powers and were subject to the provisions contained in title 3 of chapter 18 of the first part of' the Devised Statutes, so far as the same were applicable. It appears that in 1862, and up to 1865, this society held no real estate. The amount of its personal property is not shown, but I do not understand that there is any limit by statute on the amount of personal property which the society can take, provided its purposes require it.
It is further claimed by the next of kin of Sarah Burr that the legacies to the Society of the Mew York Hospital are invalid, because, by its charter, it is permitted to take and hold personal estate only when the clear yearly value of its real estate does not exceed five thousand pounds sterling. This charter was granted in the year 1871 by the name of the Mew York Hospital. In the year 1810 its name was changed to the Society of the Mew York Hospital. The yearly value of its real estate was originally limited to $25,000. Its charter had been amended from time to time— in the years 1810, 1816, 1828, 1850, 1875 and 1879. By the Laws of 1879, chapter 244, it was permitted to receive, by devise or grant or gift, and to hold and enjoy real and personal estate for the uses and purposes of the corporation, the net yearly income of which should not at any time exceed $600,000.
It also appeal’s in evidence that in the year 1881, its receipts from real estate were upwards of $150,000. It does
It is also urged that the defendant the New York institution for the Blind did not exist at the time these wills went into effect, but that its charter had expired. I find, however, among the papers submitted in the case, and to which I presume the attention of the opposing counsel was called, is an act of the legislature, passed April 15, 1852, containing its charter.
Objection is also made to the bequest to the Society for the Belief of Widows and Small Children, because, first, its charter expired May 1, 1865; and second, that its charter, even though existing, limits the real and personal estate which it may hold to the value of $100,000, and that it appears in evidence that its personal estate amounted to $132,000. By the last clause of its original charter it was enacted that the society should be in full force until the 1st day of March, 1824, and no longer. By chapter 278 of the
It is also contended that the Hew York Eye and Ear Dispensary cannot take tire bequest given in Margaret Burr’s will, because it did not come into existence until 1864, two years after her death. This society was incorporated by special act of the legislature in 1822, under the name of the Hew York Eye Infirmary, and, in 1864, the name was changed to the Hew York Eye and Ear Infirmary. It was manifestly the society intended by the will of Margaret Burr.
What has already been said may be applied to the Hursery and Children’s Hospital and the Association for the Benefit of Colored Orphans of the City of Hew York, and to the Corporation for the Belief of Widows and Children of Clergymen, and to St. Luke’s Home for Indigent Christian Females, and to the Society for the Belief of Destitute Children of Seamen.
The American Bible Society was organized by special charter by chapter 68 of the Laws of 1841. By the second section of that act the net income of said society arising from its real and personal estate was limited to the sum of $5,000
The American Church Missionary Society was chartered by chapter 189 of the Laws of 1861. Its annual income from real estate at one time held, could not by that act exceed the sum of $30,000. As to its personalty, its power to take is not limited.
The Protestant Episcopal Church Missionary Society for the seamen in the city and port of Hew York was chartered by chapter 147 of the Laws of 1844. By its charter it was lawful for such society to build, purchase, hire, take and hold one or more houses and lots, and the requisite furniture thereof, for the boarding, lodging and entertainment of seamen and boatmen of the city of Hew York, to an amount not exceeding $100,000, and demise the same. There is no valid claim that this society has exceeded the amount of property which it is capable of holding.
This completes, I believe, the examination of the charters of the several diffcent corporations in respect to their ability to take and hold property by gift, grant, devise or bequest.
The legacies to individual defendants are not disputed, and require no special examination. It follows, therefore, that the legacies to the several charitable, religious and missionary societies mentioned in the wills of Margaret and Mary Burr (excepting those to the Children’s Aid Society, St. Luke’s Hospital, in Mary Burr’s will) are valid, and should be paid by the executors in accordance with the intention of the testatrices, and as particularly directed to be done in my findings of fact and of law.