38 N.J. Eq. 91 | New York Court of Chancery | 1884
Harris M. Baldwin, deceased, late of Newark, died January 8th, 1882, leaving a will dated September 12th, 1881. By that instrument he first states that he “makes it as his will and requests his good friends, Jerome Taylor and Henry S. Tolen,
The testator gives to his nephews and nieces, Louisa Silvers, Genevieve, Annie and Joseph Belcher and Herbert, Harmon
The gift to the “ South Baptist Church of Kinney street ” was intended for the religious corporation in Newark (a Baptist church) named “South Baptist Church, Kinney street.” The testator was a member and deacon of that church for many years prior to his death.
By the “ Eairmount Baptist church ” he meant the church in Newark whose corporate name is, “ Eairmount Baptist Church of the city of Newark, in the county of Essex and State of New Jersey.” He was interested in that church, and contributed to the building of its church edifice. It is commonly known by the name by which he designates it. The legacy to the “ Fifth Baptist Church ” was intended for the church in Newark whose corporate name is, “The Fifth Baptist Church of the city of Newark, in the county of Essex and State of New Jersey.” The testator was interested in that church also, and contributed to its funds. According to the testimony, he gave the lot on which-its church edifice was built. The gift to the “ Newark City Mission” was intended for the religious corporation in Newark named “Baptist City Mission.” The testator was very much interested in that corporation and its objects, and contributed to its funds. Among its objects was the support of a chapel which it owned, known as the “ Belmont Avenue Chapel.”
The testator gives a legacy to “the ministers’ fund of the East N. Jersey Baptist Association.” The East New Jersey Baptist Association is a corporation by that name, and it has established a fund for the relief of disabled ministers and ministers’ widows. There can be no doubt that the gift was intended for that corporation, to be placed by it in that fund. In N. Y. Annual Conference &c. v. Clarkson’s Exrs., 4 Hal. Ch.
The bequest to the “ American Publication Society ” was undoubtedly intended for the American Baptist Publication Society. The testator probably intended to write the latter name, but accidentally wrote only part of each of the words Baptist and Publication, joining them together. He was very friendly to the American Baptist Publication Society, and was a contributor to its funds.
The bequests to-the “ Rochester, N. Y., Theological Seminary ” and the “ Hamilton Theological Seminary ” were intended, the one for the New York Baptist Union for Ministerial Education (a corporation under the laws of the state of New York, and located in the city of Rochester, in that state), and the other for Madison University, a corporation located at Hamilton, in that state. Thé former has established and owns a theological seminary in Rochester, commonly known by the name of the Rochester, N. Y., Theological Seminary. It is the only theological seminary in the city of Rochester. Connected with the Madison ^University is a theological seminary of the Baptist denomination (the only theological seminary in Hamilton), commonly called the Hamilton Theological Seminary. What is now known as Madison University was, from 1822 to 1846, when it was incorporated by the name of Madison University, known as the Hamilton Literary and Theological Seminary.
The gift to the Eairmount Baptist Church and the Fifth Baptist Church are on condition that “ the whole debt shall be removed,” and the question is asked whether the payment of the entire debt of the church is a condition precedent to the payment of the legacy. It is not. The testator does not impose the condition that the debt shall be paid in full before the legacy is payable, but makes the gift on condition that the whole of the debt shall be removed. He does not prohibit the use of the legacy towards paying the debt. Nor does he designate any purpose t© which it is to be applied. He appears to have contemplated that it would be used toward paying the debt, and to have intended that it should not go to the church unless the church should have paid all of the debt except so much as the bequest would pay. His object was thus to secure the payment of the entire debt. The churches should each be required to raise the money to pay all of its debt, except the amount of the legacy, within a reasonable time. Sixty days will be a reasonable period.
The testator gives to the City Mission $2,500 to pay the debt
The will gives “ to the Rochester, N. Y., Theological Seminary” and to “Hamilton Theological Seminary $10,000,” and a question is raised on this bequest whether the legacy is of $10,000 to both, or of that sum to each. It is of $10,000 to each and not of that sum to the two. The testator does not say, I give to the two $10,000, but to one, and [also] to the other that sum.
It remains to consider the question whether the legacies are charged on the land. The rule on the subject is familiar. Personal estate is the primary fund out of which legacies are payable, and the real estate is not charged with the payment of them unless the testator intended it, and that intention must be either expressly declared or fairly and satisfactorily inferable from the language and dispositions of the will. Here there is no express declaration of such an intention. It is urged, however, that it is' to be inferred from the fact that the testator’s personal estate was, and was known to him to be, insufficient to pay the legacies, and hence it is argued that he must have intended that the real estate should be charged therewith; that he requests his executors to “carry out the provisions of the will as executors;” thus, it is said, making it incumbent on them to pay the legacies, and giving them power over all his estate for the purpose; that he directs that his house arid the furniture therein be left undisturbed during the life of his mother-in-law, thus showing, it is insisted, that he intended that his executors should have control over his real property; and, further, that the will contains no residuary clause, from which it is argued that he intended that all his estate should be devoted to the payment of the legacies.
The legacies, not including anything on account of the direction to pay Mrs. Tolen for supporting the table, or the $2,500 for the Newark City Mission, and reckoning the gifts to the two theological seminaries at $20,000, amount to $71,500, while the personal estate amounts to only $50,048.53. The real estate is valued at about $25,000 altogether. It appears from the testimony that in the latter part of June or 1st of July, 1881, about six months before the will under consideration was executed, the testator made a will; which he afterwards destroyed, in which he gave the same legacies to the same legatees, with one exception. The legacies amounted altogether to the sum of about $75,000. At thát time, he had a memorandum of his personal and real estate, with the value thereof, which was about $90,000, reckoning his real estate at $35,000, and he said that the property would pay the legacies and leave a “ leeway,” as he called it, of about $10,000. That memorandum is not produced; it cannot be found. The testator does not appear to have had it or to have referred to it when the last will w«as executed. The most that is to be said on this point is that he may have been, and probably was when he made his will, aware of the fact that his personal estate would not be sufficient to pay the legacies. His request to his executors, at the beginning of the will, “ to carry out the provisions of the will as executors ” is of no significance. It is a mere request that they would act as executors. Nor is there in the fact that he, directs that his house and furniture remain undisturbed during the lifetime of his mother-in-law, any evidence of his intention to charge the land with the legacies. He does not thereby confer any power on his executors over his real estate. The provision gives to the mother-in-law the use of the house and. furniture for life. He neither directly nor indirectly gives the executors any power to dispose of his real estate, nor any control over it. That the will contains no residuary clause is not evidence of an intention to charge' the land with the legacies. Nor is there any evidence of it in the character of the legacies, that they are almost entirely charitable.