| NY | Sep 15, 1863
By the Court.
The magnitude of the bequest, in connection with the interesting questions supposed to be involved and which were argued with so much learning and ability, has given unusual importance to this case. It may be, also, that the purpose of the testator in the disposition of the bulk of his large estate has tended to heighten the public interest, for, independent of any peculiar law of charity, and according to the general sense of civilized society, such purpose is eminently benevolent.
The testator contemplated the foundation of an extensive charity of the description indicated in his will. But he did not propose to be sole donor and founder. On the contrary, he did not propose to contribute at all unless others engaged in the undertaking; and hence, his munificent gift was limited upon the contingency that an association should be brought into existence , and the sum of three hundred thousand dollars raised from other sources, within five years of his decease. The plain meaning of the testator in the clause disposing of the residue of his estate, is this: his executors were to hold such residue to aid thereby in founding the Beneficent Association' indicated. If within five years from his decease the association should be formed, and there was raised from other sources the sum of three hundred thousand dollars, the whole of his residuary estate should belong to such association, and his executors were to pay it over, hlo duty or trust was enjoined upon the executors except to pay over on that contingency, and in the mean time they were to hold the funds passively. But if no association w'as formed, or, if formed, there should be a failure to raise the sum named from other sources, within the time specified, the residuary estate was not to be devoted to the benevolent purpose primarily 'contení
As the testator, therefore, framed the bequest, it is contingent and executory in respect to both the primary and secondary dispositions. As to the primary disposition there is an uncertainty as to the association (which was non-existent at the testator’s death), even being formed, and also as to the raising of the three hundred thousand dollars. The secondary dispositions hinge on the same uncertain event, viz: the not raising the three hundred thousand dollars. They do not take effect, nor did the testator intend they should, unless there is a failure to raise the sum within the time specified.
We are met at the threshold of our examination with the objection that the limitations, tested by our law of perpetuity, are invalid. Unless, therefore, the objection of remoteness can be avoided, it will be unnecessary to examine the question so fully discussed and still unsettled, whether the English law of charitable uses, as it existed at the adoption of the Constitution of 1777, is now the law of the State. If the dispositions are void on the ground of remoteness, the property goes to those to whom the law gives the ownership in case of an ineffectual devise or bequest, viz: the heirs and next of kin.
In determining the question whether the vice of perpetuity attaches, it is of no significance that the limitations are to what are understood as charitable objects. Charitable donations of a public nature, form no exception to the law against perpetuities; at least while they remain contingent and ex-ecutory. Estates, although given to charitable uses, must vest within the time prescribed by law. This is the American and English doctrine, and I am not aware of any case to the contrary. Phelps v. Pond, 23 N. Y. 69; Leonard v. Burr, 18 Id. 96; Yates v. Yates, 9 Barb. 324; Morgan v. Masterton, 4 Sandf. 442. In 1 Drury & W. 245, Sir Edwabd Sugdem", sitting in the Irish court of chancery, said: “ Limitations over to charity do not differ from any other, and to be effectual must be confined within the usual period,” and on that ground the limitation over to the charity was adjudged to be void.
It cannot be successfully urged that the primary legatee took a vested interest; certainly the formation of the association and the raising of the three hundred thousand dollars were conditions precedent. The executors were not to pay over the fund until the conditions were performed, Avhich might be any time within five years from the death of the testator, and in default of performance it was to go to other beneficiaries. They were not authorized to expend any part of the estate in organizing the association, or in procuring contributions from other sources. The limitation directs them in terms to pay over “ the trust estate, or proceeds thereof.” It does not appear that any part of the legacy has been used for the purpose suggested ; and I am. clearly of the opinion that the executors; were Avithout authority to do so. They were to hold the fund, subject to the contingencies on which it was given, for ther period of five years, unless the uncertain events, upon the hap>pening of which it Avas to vest in and belong to the primary legatee, sooner occurred. As the testator framed the limitation and by its precise terms, the “absolute ownership” of the. fund Avas to remain suspended, it might be for five years, or- a shorter period, having no dependence upon lives. Of course the naked legal title was in the executors, by operation of law,, or under the will, for the benefit of the next of kin unless effectually bequeathed to others; but the real ownership was. suspended and the fund incapable of alienation for five years, unless the conditions on which the limitation was. to take effect were sooner fulfilled. The fund now awaits the performance of one of the conditions, viz: the raising of the three hundred thousand dollars, and until that condition is performed it cannot be paid. This is no vested gift, but on the contrary a perpetuity, because the vesting of the gift is not. made to depend on a life or two lives in being, but on an uncertain event which may not happen within five years*, a. period
But how is it with the second bequest over to the Colonization Society, and other objects which the executors shall deem meritorious charities ? The primary and ulterior limitations are, in terms, hung upon the same uncertain event, and it would seem to follow, that if the one involves a perpetuity, the o her is affected with the same vice, and for like reasons. Taking the will precisely as the testator has written it, the secondary bequest is made to vest upon the failure to raise the three hundred thousand dollars iu five years. Whether it shall ever take effect is, in terms, dependent upon the determination of this uncertainty. The primary limitation is dependent upon the event being determined one way, the secondary limitation on its determination the other way. I give, says the testator, to the first object of my regard, the Benevolent Association, all of my residuary estate, upon condition that within five years after my decease, the sum of three hundred thousand dollars is raised from other sources; but, “ in case the sum of three hundred thousand dollars be not raised, as aforesaid, within five years after my decease, then and in that event I de- ■ sire and request my said trustees to give the American Colonization Society, one half the amount, or proceeds of said trust estate, and the remaining half they will please allot and give to whom or whatsoever they may deem to be the best and most worthy objects of charity.” Can there be any doubt, therefore, that the secondary gift, according to its terms, is limited upon" the determination of the same event which the primary gift is made dependent, and that, taking the will as it reads, the vice of perpetuity equally affects both of the bequests ? I think not. The ulterior bequest is objectionable, not merely because it is subsequent in order to one that is too remote, but because it is subsequent and depending upon the same event. The subsequent limitation, judged, by itself, is too remote. I
The learned counsel for the Colonization Society contended, with much ingenuity, that the limitation over to the society was not of a character to be impeached for remoteness; that the right of the society to the money was- fixed and inevitable from the moment of the testator’s death, and that there was no length of time whatever in which the vesting of the gift to it was either uncertain or postponed. The result is reached in this way: The event, it is said, on which the bequest to the Colonization Society was limited to take effect, was a mere negative. That With the view of settling, if possible, the prior gift, the testator allowed five years for ascertaining its practicability, yet the gift over, both in expression and in intent, is limited upon the event. If such a negative can be called an event, it is to be considered as happening whenever the affirmative is legally impossible. Taking into view the state of facts and the existing law, it was, at the death of the testator, legally impossible, and, therefore, in fact impossible, that the three hundred thousand dollars could ever be raised, as prescribed by the testator; for the Benevolent Association did not exist, nor could it ever come into existence to raise it. Looking, says the counsel, at the limitation from the stand-point of the testator’s death, the event on which the prior limitation was suspended could never happen; the Association did not exist, and the law would not allow it to come into existence, so that it might raise the three hundred thousand dollars, and hence, the negative of the event on which the secondary bequest was limited, is to be regarded as happening whenever the legal impossibility existed of raising the three hundred thousand dollars, which was at the moment of testator’s death. An executory limitation, it is argued, to be avoided by the rule against perpetuities, must be so framed at the time of its creation as
The sum of this argument is, that the prior gift being void for remoteness, or some other vice, and out of the way, and the law rendering it impossible that that event could happen, on the negative of which the secondary gift was limited to take effect, such bequest is to be brought forward and upheld as an immediate vested'gift. The argument is, I think, unsound on principle and authority. If it be correct in this case, I cannot perceive why, in any case, where there are primary and secondary limitations depending on the same event, and the law adjudges the primary limitation to be void, the secondary bequest shall not be accelerated, and made to vest immediately.
The court concurring in this view it disposes of the case without reaching the question, so elaborately and learnedly discussed, viz: whether the peculiar system of English jurisprudence, by which indefinite charitable gifts are upheld, is the law of this State.
The judgment of the supreme court should be affirmed.
All the judges concurred in respect to the primary bequest, and all but H. E. Selden, J., who was in doubt, as to the secondary bequest.
Judgment affirmed, and, taxable costs of all parties to be paid out of the funds of the estate.