12 N.Y.S. 776 | N.Y. Sup. Ct. | 1891
This action is brought for the construction of the last will and testament of Jeremiah Rushmore. In respect to the appeal of Frank Rushmore, it may be said, in brief, that the legacy of $3,000 to him, mentioned in the fourteenth and twentieth clauses of the will, is plainly made payable not until he arrives at 25 years of age, and even then not until after the decease of the testator’s wife, Mary Rushmore; and provided, further, that lie should possess such traits of character and business habits as to assure the executor, at the time of the payment of the money, that the legatee will make a prudent use of the gift. There is nothing ambiguous or uncertain in this part of the will. It requires no construction. It contains no unreasonable condition. It was but a condition precedent to the vesting of a legacy. Caw v. Robertson, 5 N. Y. 134. An argument is addressed to us in behalf of the appellants George M. Adams and Ida Harmon, by which it is claimed that these appellants lake per capita, and not per stirpes. The legacy to them is contained in item 22 of the will, which bears date the 25th day of February, 1886, and the ninth item of the codicil thereto, which bears date the 7th day of March, 1888. They are not named in item 22 of the will,
The appeal taken by the trustee of school-district Ho. 11 presents some difficulties. His claim in behalf of his district rests upon the nineteenth item •of the will, which is as follows: “I give and bequeath to the trustee and two of tlie tax-payers paying the largest school tax in district Ho. 11, in the town •of Earraington, the sum of-$2,000.00, to be safely invested by them, and one-half of the interest thereof to be annually used to purchase school-books and •clothing for the indigent children residing in- said district, and one-half applied to pay for the wages of the teachers employed in said district, but not to be used until the district has maintained school at least twenty-eight weeks in each year, respectively.” The learned justice at the trial has adjudged -this provision of the will to be inoperative and void, because of its uncertainty, both in respect of the trustees charged with the duty of executing the trust, and of the beneficiaries therein named. In regard to the trustee of school-district Ho. II, there can be no reasonable question made but that -there was at the time of making the will and at-the time of bringing this action a person, and but one person, answering that description. It does not appear in the printed record who the tax-payers paying the largest school-district tax in this district are, but their names can be easily ascertained in any judicial inquiry that may be made. Even if this were otherwise, the statute, to. which reference will presently be made, comes to the assistance of the testator, and saves the legacy to the objects of his bounty. In the revision and •consolidation of the general acts relating to public instruction, passed May 2, 1864, and the various acts amending the same, there is a provision for the granting of certain bequests and devises for the benefit of common schools. 2 Bev. St. (6th Ed.) p. 53, § 15. By this statute “real and personal estate may •be granted, conveyed, devised, bequeathéd, and given in trust and in perpetuity or otherwise, to the state, to the superintendent of public instruction, for the support or benefit of common schools within the state, or within •any part or portion of it, or of any particular common school or schools within it; and. to any county, or the school commissioner or commissioners of any coimty, or to any city or any board or officers thereof, or to any school commissioner district or its commissioner, or to any town or supervisor of a town, •or to any school-district or its trustee or trustees, for the support and benefit of common schools within such county, city, school commissioner district, or