153 N.Y.S. 453 | N.Y. App. Div. | 1915
The defendant demurred to the third amended complaint and then moved, under section 547 of the Code of Civil Procedure, for judgment on the pleadings. The demurrer was sustained and the motion granted. Plaintiff appeals.
The action is for money had and received. The facts alleged in the complaint are substantially as follows: That on or about October 5, 1909, the will of Julia Hallgarten and a codicil thereto were admitted to probate by the Surrogate’s Court of the county of New York and letters testamentary issued to the executors therein named; that by the terms of the will the residuary estate was bequeathed, in equal shares, to her two daughters, Alice, who subsequently married the defendant Franchetti, and Eleanor, who married one von Koppenfels; that the codicil contained the following provision: “ I give, devise and bequeath the amount which had been bequeathed to me by the last will and testament of my son Walter N. Hallgarten, to my daughter Alice Hallgarten Franchetti, it being understood between us that she has to spend said amount in charity, both in the Kingdom of Italy and in the City of New York, N. Y., U. S. A.;” that on or about December 15, 1911, in a proceeding in the Surrogate’s Court of the county of New York, a decree was entered adjudging, among other things, that the bequest contained in the codicil was void, and that the money ineffectually attempted to be bequeathed thereby passed to the residuary legatees under the will; that Alice Hallgarten Franchetti was originally a party to the proceeding and filed an instrument waiving the issuance of a citation, and consenting to the judicial settlement of the executors’ account; that she died on October 22, 1911, nearly two months prior to the entry of the decree; that in December, 1910, the attorneys for the executors wrote Eleanor Hallgarten that a question had arisen as to the validity of the trust declared in the codicil of Julia Hallgarten’s will and asked her
The principal question presented for our determination is whether a valid trust was created in the codicil to Julia Hallgarten’s will, and in this connection it is contended by the appellant that that question is not open for consideration, since the decree of the Surrogate’s Court determined to the contrary, and it cannot be attacked collaterally. That decree, according to the allegations of the complaint, was not entered until December 15, 1911, about two months after the death of Alice Franchetti, and, therefore, as to all persons claiming through her, is void. (Code Civ. Proc. § 765; Id. § 3347, subd. 6; Requa v. Holmes, 16 N. Y. 193; Carolan v. O'Donnell, 141 App. Div. 463.)
Considering the question then as an original one, I am of the opinion that a valid charitable trust was created. The development of the law relating to charitable trusts in this State since the passage of the Tilden Act, so called (Laws of 1893, chap. 701, as amd. by Laws of 1901, chap. 291; nowPers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 12, as amd. by Laws of 1909, chap. 144, and Laws of 1911, chap. 220; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 113, as amd. by Laws of 1909, chap. 144), has been so frequently considered by the courts that a further review seems almost unnecessary. Under this act charitable trusts are no longer invalid by reason of'the indefiniteness or uncertainty of the persons designated as beneficiaries. Thus, in Matter of Robinson (203 N. Y. 380) the court sustained a trust which directed the trustees to disburse the principal or interest of the residuary estate of a testatrix, or both, in their discretion, “ To provide shelter, necessaries of life, education, general or specific, and such other financial aid as may seem to them fitting and proper to such persons as they shall select as being in need of the same. Preference is to be given to persons who are elderly or disabled from work, and to persons who are Christians, of good moral character, members of one of the so-called evangelical churches, to wit, the Methodist, Baptist, Presbyterian, Congregational, Moravian or Episcopal, and who are not
In Matter of Cunningham, (206 N. Y. 601) the testator bequeathed $5,000 to his executors “to be by them applied in their best judgment and discretion to such charitable and benevolent associations and institutions of learning for the general uses and purposes of such associations and institutions as my said executors may select, and in such sums respectively as they may deem proper.” In sustaining the trust, Bartlett, J., who delivered the opinion of the court, said: “A considerable number of English cases might be cited in which the purpose of the charitable trust which received the sanction of the court was quite as indefinite. I shall refer to only a few of them. In Moggridge v. Thackwell (7 Vesey, 36b. 85) Arm Cain gave her residuary personal estate to her executor, ‘ desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen who have large families and good characters; ’ and Lord Eldon affirmed the decree of Lord Thurlow who had held that the trust was sufficiently definite to be executed by the court. In Legge v. Asgill (Turner & Russell, 265, note) the testatrix made a number of bequests in her will, and executed a codicil providing: If there is money left unemployed, I desire it may be given in charity.’ It was held that this was an effective gift of £2,000 of personal estate to charitable purposes. In Whicker v. Hume (7 House of Lords Cases, 124, 154) there was a bequest of personal property upon trust to apply and appropriate the same in such maimer as the said trustees or trustee shall, in their absolute and uncontrolled discretion, think proper and expedient for the benefit, and advancement and propagation of education and learning in every part of the world.’ It was objected that the gift was of such an extensive nature that it was impossible to carry it into effect; but Lord Chelmsford held that the purpose of the testator was to promote teaching and instruction, and the circumstance that the whole habitable world was open to the discretion of the trustees did not prevent the gift from being available as a good charitable bequest.”
In Matter of Miller (149 App. Div. 113) this court held, where
The language used in the codicil in creating the trust under consideration is no more indefinite than in some at least of the authorities cited. The amount given was to be spent in charity. That is clear. The purpose of the statute was to validate gifts or bequests where the beneficiaries were indefinite and uncertain. Here all that is uncertain is as to who shall be the recipient of the charity, and that necessarily, must be left to the discretion of the trustees.
Matter of Shattuck (193 N. Y. 446), upon which the appellant principally relies, is not, as I read it, an authority for holding that the trust is void for indefiniteness of purpose; on the contrary, it seems to me an authority to the effect that the trust here created is valid. Judge Chase, who delivered the opinion, said: “The act of 1893 doubtless saves a trust from being invalid because the beneficiaries are indefinite and uncertain, but a trust maybe so indefinite and uncertain in its purposes as distinguished from its beneficiaries as to be impracticable, if not impossible, for the courts to administer.” It was there held that the purpose for which the trust was designed was not, necessarily, charitable. This clearly appears from a statement in the opinion in Matter of Cunningham (supra). Judge Bartlett said: “Inasmuch as it was possible, under the terms of the Shattuck trust, that it might be devoted in whole or in part to private use, the entire gift was pronounced invalid. ”
If the trust be valid the plaintiff, as the assignee, has no
If it be true, therefore, as contended, that there has been a misuse of the trust fund, that would not entitle the donor, or in the case at bar the assignee of one of her residuary legatees, to the return of the fund. The legal title was in the trustee and, she having died, the execution of the trust devolves upon the Supreme Court (Allen v. Stevens, 161 N. Y. 122; Matter of Griffin, 167 id. 71) which carries the same into effect by a trustee appointed by it. The plaintiff has no standing to maintain such action, since he has no interest in the fund or the enforcement of the trust.
It follows, therefore, that the order and judgment appealed from should be affirmed, with costs.
Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.
Judgment and order affirmed, with costs.
See 2d ed.—[Rep.