7 N.Y.S. 382 | N.Y. Sup. Ct. | 1889
Lead Opinion
This action is brought for the construction of the will of Samuel J. Tilden, who died in August, 1886, leaving the said will, which had been executed in April, 1884. Mr. Tilden left him surviving, as his only next of kin and heirs at law, one sister, two nephews,—one of whom is the plaintiff in this action,—and four nieces. By his will, after naming the executors and trustees thereunder, and making provision for their compensation, and as to the manner of the exercise of the powers to be conferred upon them, and for the appointment of the successors of such of his trustees as should die, resign, or become incapacited to act, he provides by the eighth clause thereof as follows: “Eighth. My said executors and trustees are directed to constitute the trusts for specific persons hereinafter more particularly described and defined. My said executors and trustees shall be trustees of the special trusts by them so constituted, but the said trusts shall be distinct and separate from the general trust under this instrument. In their capacity of trustees of trusts for specific persons, they shall have power to manage the several trusts; to collect the income thereof, and to apply the same as herein directed; to sell, in their discretion, the securities, and to reinvest the proceeds thereof.” Ttie testator then, by the ninth, tenth, eleventh, twelfth, thirteenth; fourteenth, fifteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-sec- and, and twenty-third clauses, creates certain special trusts for the benefit of particular individuals therein named, each of which is separate and distinct, and each independent of the other, complete in itself, and created by a separate paragraph in the will. By the twenty-fifth clause the testator provides as follows: “Twenty-Fifth. I direct my executors and trustees, in case any special trust hereby directed to be constituted shall fail, in whole or in part, by depreciation of securities, to make the same good out of my general estate, so long as the general trust to my executors and trustees shall continue; and in case the said executors and trustees shall convey any portion of that estate to a corporation designated as the ‘ Tilden Trust,’ or shall vest the same in any trust or trusts for charitable purposes, to do so on the express condition that the said conveyance shall be subject to the obligations to make good the funds devoted to the said special trusts, and shall exact from the grantee, in every such case, an acknowledgment of such obligation, and agreement to fulfill the same. This provision is made subject to the condition that the corporation shall be duly authorized by law, by a special act or otherwise, to accept the grant, subject to the obligations herein directed to be imposed upon or assumed by the said corporation. I also direct my said executors and trustees to obey such instructions as I may hereafter give to them in respect to the allotment or selection of securities for the said special trusts, or any of them.” By the twenty-sixth clause he provides as follows: “Twenty-Sixth. I hereby authorize and direct my executors and trustees, during the continuance of the trust of my general estate, to apply any surplus income to or towards the several special trusts hereby directed to be constituted, in the same manner as they might apply the principal of my said estate to the said purposes.” By the twenty-seventh and twenty-eighth clauses he gives certain annuities. By the twenty-ninth clause he gives directions as to the management of the se
The questions presented upon this appeal arise in reference to the validity of the general .trust spoken of in the eighth clause of the will, and which is attempted to be established by the thirty-fifth clause above cited. In the consideration of this question it is of course necessary to bear in mind the cardinal principles which are to govern courts in the construction of a will, and they have been so repeatedly laid down that it is not necessary to cite authorities in their support, because they have become axioms. It is the duty of the court to give such a construction to the provisions of a will as will effectuate tlie general intent of the testator, as derived from an examination of the whole instrument, even though it maybe necessary to transpose words and phrases, or even to insert or leave out a provision, if it be necessary to do so in order to accomplish the clearly expressed intention of the testator. There is also another rule of construction, which provides that where two or more meanings are presented for consideration, one of which will hold a devise as void, and the other of which will enable the will of the testator to be operative, we ought not, without absolute necessity, to adopt the construction which necessitates the holding of the devise as void. And also, where several trusts are contained in the will, some of which are legal and others ille
It is claimed that the provisions of the will in respect to which this controversy arises, either constitute a trust in the trustees to be executed for the benefit of the Tilden Trust, or it conferred upon said trustees a power in trust, or it was an executory devise; and the learned judge below held the provision in the will to be of the latter character, and that it was a devise similar to that which was. contained in the will under consideration in the case of Burrill v. Boardman, 43 N. Y. 259. In this we think the learned judge fell into an error, in overlooking the true nature of an executory devise under our statutes, and the difference between the provisions of the will in question and the one under consideration in Burrill v. Boardman. What was understood as an executory devise prior to our Bevised Statutes was, however, abolished by their adoption, and all distinctions between contingent remainders and executory devises were by them abolished; both coming under the definition of estates in expectancy. Estates in expectancy are divided into estates commencing at a future day, denominated “future estates, ” and reversions. A future estate is defined to be an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time. Future estates are further declared to be either vested or contingent. They are contingent while the person to whom, or the event upon which, they are limited to take effect, remains uncertain. And then we have the further provision that expectant estates are descendible, devisable, and alienable in the same manner as estates in possession. It is clear, therefore, in the case of all expectant estates, when the contingency arises upon which they are limited to take effect, that they vest by force of the instrument creating them. By an executory devise, therefore, or a gift in the nature of an executory devise, the expectant takes a vested right to the property; and this right cannot be defeated or diminished in any manner by any person. In other words, in the instrument creating the estate, the subject and object of the devise must be ascertained and certain. It is clear, upon a reading of the will of the testator, that it was not his intention to create any such estate. In the first place, the beneficiaries under the will take nothing by virtue of the provisions of the will itself. The estate is attempted to be vested in the trustees, (the evidence of which we will consider hereafter,) and it is by force of their action that the estate is to become vested in the beneficiaries. It is true that it is claimed, upon the part of the respondent, that the action of the trustees or executors under the will derives its validity from the powers conferred by the will, and that therefore it is to
It is also claimed by the learned counsel for the respondent that the precise legal description of the disposition made in favor of the Tilden Trust is that it is an executory devise and bequest; and, after calling attention to the distinction between executory devises and contingent remainders as they existed before our Revised Statutes, he states that' the executory bequest and devise in the present case is made subject to two conditions: (1) That the corporate body described as the donee shall come into existence within the prescribed limits; (2) that the executors and trustees shall not deem it inexpedient to endow the institution. This statement assumes two things which do not exist, as we shall attempt presently to show, viz., that there is a donee who takes under the will, and that such donee takes by force of the will alone, unless the executors and trustees named in the will should deem it inexpedient that any such donee should take; in other words, that there is a donee named in the will who would take, upon coming into existence, without any action whatever upon the part of the executors and trustees. And the learned counsel further states that “this was declared to be the nature of a precisely similar gift in Burrill v. Boardman, 43 N. Y. 254. That was made subject to one only of the above conditions, viz., the first. But that involved the discretion of the persons named. The gift could not take effect unless the charter was a liberal one, and the discretion to judge of this would appear to have been lodged with the person named as trustee.” In what part of the devise this discretion appears to be lodged in the person named as trustee we have been unable to discover. ¡Nothing is said in the will about the trustee having any discretion, and the court expressly held that the trustee had no discretion, but that the estate devised vested in the corporation as soon as it came into being, and that neither the appointment of the trustees nor their title was essential to the validity of the contingent limitation; and the bequest was held, because of'these features, to be in the nature of a contingent executory bequest. Whether the charter of the corporation was such an one as entitled it to take in the case of Burrill v. Boardman, was clearly a question for the court to determine, and with which the executors under the will liad nothing to do. If it could take at all, it took the whole of the bequest. In the case at bar the Tilden Trust took nothing upon its incorporation. The appointment of the trustees was absolutely essential, and they were to convey to the corporation, if they deemed it expedient, and oijly so much of the trust-
It is evident, upon considering the provisions of the will, that it was not the intehtion of the testator to confer upon his executors and trustees a power in trust, because he devises to them the estate, and commits its control, care, and management to them, and impliedly he provides for the collection of the income of the whole estate by them,—of that which the trustees were to set apart as constituting the several special trusts, as well as the residue which might remain after the constituting of those trusts, the payment of the legacies provided for in the will, and the doing of the other things which were distinct and separate from the general trust mentioned in the eighth clause, and which he called in said clause the “general trust.” A very significant indication of this idea of the testator is contained in the twenty-sixth clause, where he authorizes and directs his executors and trustees, “during the continuance of the trust of my general estate, [evidently referring to that which he had mentioned in the sixth clause as the ‘ general trust,’] to apply any surplus income to or towards the several special trusts hereby directed to be constituted, in the same manner as they may apply the principal of my said estate to the same purpose. ” He therefore intended that the trustees should be invested with the ownership of the property which composed the residue of his estate until they should divest themselves of such ownership by, pursuant to the directions contained in the thirty-fifth clause, conveying and applying the same to the charitable uses therein mentioned, as they were, as already stated, to have the care and management thereof until such time; and they evidently were expected to collect the income, because there are directions as to the application of the surplus income arising therefrom prior to such application, which they could not control had they not the power of0collection. Therefore, as far as it was possible for the testator to signify the intention, he signified his intention that his executors and trustees should be vested with the title of this residue until they divested themselves of the title in carrying into effect the “general trust” which he spoke of in the eighth clause and in the twenty-sixth clause, and for the instituting of which he made provision in the thirty-fifth clause.
Using the words of Justice Weight in Levy v. Levy, N. Y. 107, “if there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust, without a certain beneficiary who can claim its enforcement, is void, whether good or bad, wise or unwise.” Therefore, if these provisions of the will are to be construed as a trust, and they are so indefinite as to be incapable of being executed by a judicial decree, they are bad. The same conclusion must follow if it is held that only a power was conferred upon the executors, although such a construction would be antagonistic to the plainly expressed intention of the testator. It is claimed upon the part of the respondent that, because a testator might give by his will a legacy to such person or persons as A. B. shall designate, therefore, conceding that there is no certain beneficiary who is entitled to claim the enforcement of the pro
The learned judge in the court below was of the opinion that the thirty-fifth article contained two distinct and separate alternative gifts, the first and
It is not claimed by anybody that it was the intention of the testator to make the execution or non-execution depend upon the will of his executors. The testator did not intend that, under any circumstances, his heirs or next of kin should get from his estate anything more than the provision which he had made for them therein. This is plainly evident from a reading of the will, and therefore he did not intend that such heirs or next of kin should receive any portion of the rest, residue, and remainder; neither did he intend that, under every circumstance, even if incorporated, the Tilden Trust should receive, as matter of right, the whole or any part of this rest, residue, and remainder, but he did intend that it should be devoted to some charitable use, —to the Tilden Trust if incorporated, and if his executors deemed it expedient, but in any event to some charitable use; and hence the last clause in the paragraph of the will under consideration: “But in case such institution shall not be so incorporated during the life-time of the survivor of the said Ruby S. Tilden and Susie Whittlesey, or if, for any cause or reason, my said executors and trustees shall deem it inexpedient to convey said rest, residue, and remainder, or any part thereof, or to apply the same, or any part thereof, to the said institution, I authorize my said executors and trustees to apply the rest, residue, and remainder of my property, real and personal, after making good the said special trusts herein directed to be constituted, or such portions thereof as they may not deem it expedient to apply to its use, to such charitable, educational, and scientific purposes as in the judgment of my said executors and trustees will render the said rest, residue, and remainder of my property most widely and substantially beneficial to the interests of mankind.” These considerations show, not only that the testator did not intend that the execution or non-execution of the power (if it is to be deemed a power) should depend upon the will of the grantee, but also how impossible it is to separate that part of the thirty-fifth clause relating to the Tilden Trust from the latter half of the paragraph, relating to the application of the rest, residue, and remainder to other charitable uses, without defeating the plain intention of the testator. The execution of the power (if it is a power) not expressly depending upon the will of the grantee, it is (even if the final clause of the thirty-fifth paragraph be cut off) so indefinite that it could not' be executed by a judicial decree, and it is invalid. The trustees have full discretion, both as to the legal entity to be called into being, and as to the application of the estate to its use, if called into being. This power or authority, thus conferred, could not be executed by judicial decree, because, unfortunately, there is no fund or estate which by the will must be given to any person or class.of persons. There is an estate which may be given, in whole or in part, to one possible institution, or which may be applied to indefinite “purposes.” Under the Revised Statutes, (section 99, p. 734, vol. 1,) there may be a power of selection and exclusion with regard to the designated objects of the testator’s bounty, and still the trust power does not cease to be imperative. But there both the fund and the designated objects are specific. The trustee of the power must distribute the entire fund between such des
It is no answer that the clause may be made definite by the action of the executors. The question must be determined as of the time of the death of the testator. A trustee cannot make that valid which is invalid; nor can he invalidate that which is valid. If the trust or power is valid, he can be compelled to execute it; if invalid, he stands, as to the property not disposed of by the will, as trustee for the heirs and next of kin, and an equitable interest is vested in them immediately upon the death of the testator, subject only to the payment of his debts and the expenses of administration. In the case of Holland v. Alcock it is said, where a trust is attempted to be created without any beneficiary entitled to demand its enforcement, the trustee would, if the trust property were in his possession, have the power to hold it to his own use, without accountability to any one, and contrary to the intention of the testator, but for the provision that in such a case a resulting trust attaches in favor of whoever would, but for the alleged trust, be entitled to the property. This equitable title cannot, on any sound principle, be made to depend upon the exercise by the trustee of an election whether he will or will not execute the alleged trust. In such a case there is no trust, in the sense in which the term is used in jurisprudence. “The existence of a valid trust, capable of enforcement, is consequently essential to enable one, claiming to hold as trustee, to withhold the property from the legal representatives of the alleged donor. A merely nominal trust, in the performance of which no ascertainable person has any interest, and which is to be performed or not as the person to whom
But it seems to us that it is impossible to hold that that portion of the thirty-fifth clause which relates to the Tilden Trust can be considered and construed separately from the balance of the paragraph. In the first place, an inspection of the will shows that'the testator has been particular to distinguish throughout between the special trusts and the general trusts. He has created these special trusts by separate and distinct paragraphs. He has by the eighth clause declared that such special trusts shall be distinct and separate from the general trust, under the will; the general trust evidently meaning the one single, undivided trust to charitable uses which is provided for by the thirty-fifth clause of the will. Again, by the twenty-sixth clause of the will, he speaks of the power of his trustees, during the continuance of the trust—not the “trusts,” but the “trust”—of his general estate, to apply any surplus income to or towards the several special trusts by the will directed to be constituted; showing, again, in language as significant as could be used, that the testator had in his mind a single devise in trust to charitable uses, and that he did not intend, or did not suppose, that there were various independent, separate devises to primary, secondary, or tertiary charitable uses, but that there was one devise and one trust for charitable uses, his executors having the power of selection. Undoubtedly, he desired bis executors to give the preference to the Tilden Trust; but that is as far as he went. Again, in the thirty-ninth clause, he speaks of the rest, residue, and remainder of his property, which forms the subject of the provisions contained in the thirty-fifth clause. He says: “I hereby devise and bequeath to my executors and trustees, and their successors in the trust hereby created, and to the survivors and survivor of them, all the rest, residue, and remainder of the property,” etc., “which may remain after instituting the several trusts for the benefit of specific persons, and after making provision for specific bequests and objects as herein directed, to have and to hold the same,” etc. If it had been the supposition of the testator that he had made a specific bequest to the Tilden Trust, by which, upon its satisfactory incorporation, it would have become-invested with the title to this rest, residue, and remainder, is it possible that he could have made use of any such language? In that case there would have been no rest, residue, and remainder which he could have devised to his trustees. He there makes a distinction, plain and pointed, between the devises to specific persons (and by the word “persons” he evidently meant to include corporations, for by the thirty-fourth clause he makes a specific devise to a corporation to be called into being, and which devise is to be taken out before the rest, residue, and remainder can be ascertained) and the trust created by the will,—in some places called the “general trust,”—which is to be carried into effect according to the provisions of the thirty-fifth clause of the will. Furthermore, it is evident that it was not the intention of the testator, as has already been stated, that the only charitable use to which his executors and trustees should have -the right to devote this property should be the Tilden Trust. It is conceded that, under the language of the will, the executors had the power to determine the amount in which, if any, the Tilden Trust should be endowed. How, what were the circumstances, under which the testator intended that his executors and trustees should come to a determination upon this question ? Was it that they were bound to convey the whole of the rest, residue, and remainder of his estate to the Tilden Trust, or permit his heirs
It is admitted upon the part of the respondents that, for any cause happening subsequent to the incorporation, they would have had the right to refuse to endow the Tilden Trust; but they insist that such refusal must result from a reason not connected with the wisdom of this form of charity; that that matter the testator had .determined for himself. But where is to be found this limitation of their discretion we cannot conceive. Who is to call for the cause or reason ? To whose judgment are the executors to submit this cause or reason? To their own, and nobody else’s. And whether that cause or reason depends upon the form of the charity, or upon something which has occurred since the incorporation,—no matter what,—we see no limitation of
Many other points have been raised by the counsel for both the appellants and respondents, but it is not thought necessary to consider them, in view of what we deem the vital points of the case. We are therefore of opinion that the judgment appealed from should be reversed, and a new trial ordered, with costs of all parties to be paid out of the fund.
Dissenting Opinion
(dissenting.) The action has been brought to obtain a construction of the will of Samuel J. Tilden, who died on or about the 4th of August in the year 1886. His will was made on the 23d of April, 1884, and it has been admitted to probate as a will by the surrogate of the county of Hew York. He was unmarried, and left no descendants. At the time ot his decease he left a sister, together with nephews and nieces and other relatives, surviving him. For these relatives numerous trusts were directed to be created by the will. They were designated by him as “special trusts,” and in their extension did not transcend the time in which the statutes of the state have provided that such trusts may legally be continued, and as to those trusts no controversy has arisen in the action, but they have been assumed to be valid and conformable to the laws of the state. After providing the means for the creation and continuance of these trusts, the testator gave directions for the disposition of the rest, residue, and remainder of his estate, and it is concerning the directions contained in the will for this purpose that the controversy has chiefly arisen between the parties to the action. The plaintiff, together with other parties sustaining a similar relation to the testator, have affirmed these directions to be in violation of the law defining the powers of a testator in the disposition of his estate. The directions brought in controversy in this manner are chiefly contained in the thirty-fifth paragraph of the will. By this paragraph the testator requested his executors “to obtain, as speedy as possible, from the legislature an act of incorporation of an institution to be known as the ‘ Tilden,Trust,’ with capacity to establish and maintain a free library and reading-room in the city of Hew York, and to promote such scientific and educational objects as my said executors and trustees may more particularly designate. Such corporation shall have not less than five trustees, with power to fill vacancies in their number; and in case said institution shall be incorporated in a form and manner satisfactory to my said executors and trustees during the life-time of the survivor of the two lives in being upon which the trust of my general estate herein created is limited,— ‘ to-wit, the lives of Ruby S. Tilden and Susie Whittlesey,—I hereby authorize my said executors and trustees to organize the said corporation, designate the first trustees thereof, and to convey to, or to apply to the use of, the same the
The testator nominated and appointed John Bigelow, of Highland Falls, Andrew H. Green and George W. Smith, of the city of New York, executors and trustees under his will, and they were charged, by the directions contained in it, with the control and management of his estate for the purpose of carrying his desires into execution. These persons took upon themselves the execution of the trust, and letters testamentary were issued to them upon proof of the will by the surrogate of the county of New York. After receiving letters testamentary upon the estate the executors, for the purpose of creating the Tilden Trust, mentioned in this paragraph of the will, applied to the legislature of the state for a charter creating the corporation, which was to be brought into existence under this paragraph. By this act these trustees and their associates were created a body politic and corporate under the name and title of “The Tilden Trust.” The three trustees were empowered to select others to act with them, so that the number of the trustees should not be less than five. The act then provided for selecting the successors of these trustees, and continuing the number so designated in office. It was further provided that “the said corporation shall have, in addition to the powers now conferred by law upon all corporations as such, the capacity and power to establish and maintain a free library and reading-room in the city of New York, and for these purposes it shall have power to demand, recover, accept, and receive all such money and other property, real or personal, as is given to it by virtue of the will of Samuel J. Tilden, or shall be conveyed or transferred to, or in any manner bestowed upon, it by the aforesaid executors and trustees, by virtue of the powers therein conferred upon them; and the said corporation shall have power to hold, manage, improve, dispose of, and convey all property at any time received or acquired by it in such manner as may be best calculated to carry out its objects and purposes. Section 6. The said corporation shall accept and receive all such money or other property as is given to it by the said will of Samuel J. Tilcjpn, or shall be conveyed or transferred to, or in any manner bestowed upon, it as aforesaid by the aforesaid executors and trustees, subject to the terms and conditions expressed in, and imposed by, the said will of Samuel J. Tilden in respect to the gifts therein and thereby made or provided for, to a corporation to be formed and to be known as the ‘ Tilden Trust,’ and the said corporation shall have power to make and enter into any obligation or obligations to secure due compliance with such terms and conditions. Section 7. The said corporation shall possess the powers, and, except as may be otherwise provided by this act, be subject to the provisions, liabilities, and restrictions, contained in the third title of the eighteenth chapter of the first part of the Revised Statutes; but noth
The primary object of the testator, if the Tilden Trust should in fact be created, was to provide for and establish and maintain a free library and reading-room in the city of New York. If the trustees and executors acted at all under these provisions of the will, they were bound to act so far as to produce these results; but they were not required, otherwise than in their own discretion, to proceed further than this, and the act which was in fact so passed was ample for obtaining this primary end of the testator; and, as long as the fact is that in this form it was satisfactory to the trustees and executors themselves, no fault can be found with it by the plaintiff, or the other parties joining with him in resisting the maintenance of this part of the testator’s will. They were required to obtain this act of incorporation within the life-time of Ruby S. Tilden and Susie AVhittlesey, or of the survivor of them, and that did not transcend the limits which the law permitted to be prescribed for the creation of this corporation. It has, however, been suggested that the time for its organization, and the conveyance of so much of the testator’s estate as it might become the recipient of, exceeded, or might exceed, the bounds of the lives of these two persons. But it is quite evident from the provisions contained in the will that such a disability was not within the contemplation of the testator, for, by all its provisions, he appears to have been aware of the restraint of the law by which the title to property has not been permitted to be suspended for a greater period than that of two lives in being at the time when the direction for that object should take effect, for throughout his will he has limited all the special trusts created by him in subordination to these restraints of the law. It is evident, therefore, that its provisions were familiar to him as a lawyer, and that they were present in his mind at the time when this will was drawn, and that he did not intend that" his executors, as to any portion of the will, should transcend the restraint in this respect imposed upon his power of disposition by the statutes. He accordingly may be held not to have intended the possibility that his executors and trustees should transcend these restraints by their action in creating the Til-
It was not important that the corporation which might be brought into existence, invested with tiñese powers, should exist at the time of the decease of the testator; but it was sufficient, for all the purposes of the law, that it should be created within the lives of these two persons, as that, in fact, was done by the act of the legislature. Ho infirmity, therefore, arises in the case by reason of the circumstance that this corporation was to be created after the decease of the testator. The same point was elaborately considered and argued in the case just cited, and it was there held that the creation of the corporation by legislative authority, within the time during which the absolute ownership of the estate might lawfully be suspended, was sufficient for all the purposes of a devise and bequest to it. This authority, therefore, with the suggestions which have already been made, will dispose of the formal objections that have been presented against the legality of the directions for this purpose contained in the testator’s will.
It has, however, been further urged that the testator has exhibited his intention to be to create a technical trust to carry these directions into effect, and it appears that he did believe that might be made effectual by the thirty-ninth paragraph of the will, in which he has in form devised and bequeathed the property, in this manner permitted to be employed, to his executors and trustees, and he has characterized what he proposed in this manner to provide for as the creation of a trust. But such was clearly not its effect; for the statute of this state has permitted express trusts to be created for only four different objects, and they have been explicitly defined by section 55, art. 2, c. 1, Rev. St., and the trust in this manner described by the testator is not one of those which this statute has provided might be created. But a mistake on his part, or in this respect, or a designation of what he intended might be done, to be a trust, when it was not a trust, in no manner abridged or prejudiced what he intended might be done in the disposition of his estate. That he fell into an error in making these directions will not defeat the attainment of his object, under other provisions of the law; for it has been further.provided by section 58 of this part of the Revised Statutes that, “where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees, but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the third article of this title.” This section includes all such directions for the disposition of the estate of a testator as may not be capable of being maintained as an express trust, but are yet sustainable under the provisions of the statute relating to, and defining the existence of, powers in trust. This is the language of the section, and it has been so clearly expressed as to be free from ambiguity, and not the necessary or proper subject of construction. It has been urged, however, that Garvey v. McDevitt, 72 N. Y. 556, is in conflict with this conclusion; but it clearly is not entitled to that effect, for there it was the sole object of the testator to create one of the trusts mentioned in the section of the statute defining ex
At the time of the revision of the statutes, which took effect in 1830, very great, as well as fundamental, changes were made in the Revision, as that was accepted and adopted by the legislature. The provisions permitting the creation of trusts greatly abridged and restricted them, as they had previously been understood, and trusts were thereby subjected, in many respects, to rigid rules not previously applicable to them. But, in reducing and declaring the scope and extent of express trusts, it was not the object of the revisers, or of the legislature afterwards sanctioning their work, to limit the disposition of property to their instrumentality, as they were in this manner defined, but it still remained, in great part, the intention of the law, as it was then changed, to permit parties to direct and control the disposition of their estates by means of powers in trust, and, for this purpose, as the grantee of the power would not be required to collect the rents or profits of the property, to permit it to descend to the heirs and next of kin, subject only to the subsequent execution of the power. Neither the revisers nor the legislature proposed to restrict the future control which the testator might possess or exercise over his estate in this manner, except that the restraints adopted as the limit of future estates should not be extended by the exercise of the authority to be created The same rigid rules which have been prescribed for the creation and management of trusts have not been carried into the provisions of the statute so far as powers or powers in trust have been provided for and defined, but greater flexibility and freedom has entered into this part of the law, allowing the testator to control the final disposition of his estate, subject to the vesting of the title in the manner already stated, through the creation and vesting of the authority which the law has in this way liberally permitted. It is indeed true, for the purpose of carrying these provisions of the statute into execution, that a definite person or class of persons, not too numerous for practical identification and selection, shall be either mentioned or referred to as the person or persons to be beneficially aided in the execution of the power. This rule was carefully observed in the directions which the testator gave concerning the disposition of this rest and residue of his estate; for there was bub one person, and that was this corporation, that might, in the first instance, become entitled to this portion of it, and it was only in case the institution mentioned by him should not be incorporated during the two lives, or the executors and trustees should deem it inexpedient to convey this part of the estate, or any part of it, to the institution, that he then authorized his executors and trustees to apply such rest and residue to such charitable, educational, and scientific purposes as in their judgment would render it most widely and substantially beneficial to the interests of mankind. This alternative power of disposition attempted to be created is, under the authorities, undoubtedly void, for the reason of the general and indefinite nature of the directions to be observed in this matter; but, as this was clearly expressed by the testator, it was no more than a distinct and alternative disposition of the property, not to be brought up for any practical object, unless there should be a previous failure in the conveyance under the preceding power of this part of the estate, or the corporation which it was provided should, in the way that has been done, not be brought into existence. The conveyance of the estate to the eorpora
By the operation of the testator’s will, which in this manner may be sustained if the directions contained in it are legal, he has conferred upon the trustees and executors a discretion, by which they were placed at liberty to convey, or not to convey, or to apply, or not to apply, to the use of the corporation, the rest, residue, and remainder of his real and personal estate, not specifically disposed of, or so much thereof as they might deem expedient for that object; and it is the creation of this discretion that has been the most directly assailed, as not, under the law, being within the competency or power of the testator; and the cases of Prichard v. Thompson, 95 N. Y. 76, and of Holland v. Alcock, 108 N. Y. 312,16 N. E. Rep. 305, are prominently relied upon as sustaining this objection. But an examination of the decisions made in these cases does not sustain this position; for they did not, in either instance, fail because of any general directions or discretion, proposed to be delegated to the executors for the disposition of the estate itself; but they failed for the reason that the beneficiaries under the power were not sufficiently designated or ascertained to enable the provisions of the will relating to that subject to be carried into execution. ITo such defect arises in this case, for the beneficiary to whom the residue of the estate, in whole or in part, might be transferred, was definitely indicated by the testator in his will, and has, in the manner already stated, been brought into existence by act of the legislature. This case, consequently, is not liable to be affected by anything contained in these decisions, for the court did not condemn the delegation of discretion of this description to the trustees and executors, for the bestowment of the property, if they should deem it proper to bestow it at all, upon the party ascertained and designated by the testator to be in that event its recipient; and that a discretion of this description may be delegated to executors and trustees’ in the execution of powers in trust was practically held in Powers v. Cassidy, 79 N. Y. 602. There the testator gave one-third of the rest of his estate to his executors, to be divided among Roman Catholic charities, institutions, schools, and churches in such proportions as a majority might decide; and this was held to be a lawful power in trust. That a discretion for the disposition of the estates could lawfully be delegated to others by the testator, was, in general terms, also held in the ease of Hartnett v. Wandell, 60 N. Y. 346, and so it was in the case of Taylor v. Morris, 1 N. Y. 341, where the court held that a discretionary authority for the disposition of property contained in a will might; be exercised and carried into effect, even by a single surviving executor, and this conformed to no more than the very general legal proposition which has been deemed to be sustained by other decided authorities, (2 Perry, Trusts, 2d Ed. § 508;) and a discretionary power, depending wholly on the volition of the grantee, was assumed by the court to be valid in Hull v. Hull, 24 N. Y. 647, and it is inferential!y supported by Cos
The provisions authorizing the creation and definition of powers, as they are contained in the Revised Statutes, have been held, so far as they may be applicable, to include the disposition of both real and personal property, (Hutton v. Benkard, 92 N. Y. 296;) and while, by their language, they have been made to relate more especially to the definition and regulation of powers concerning the disposition of real estate, they are still to be applied as well to personal estate, where that may prove to be practicable; and in this case no obstacle stands in the way preventing that application. By section 106, art. 3, tit. 2, c. 1, pt. 2, Rev. St., it has been provided that a power may be granted by a devise contained in a last will and testament; and, by section 74 of the same article, a “power” has been defined to be “an authority to do some act in relation to lands, or the creation of estates therein, which the owner granting or reserving such power might himself lawfully perform.” While this section mentions lands as the object to be affected, it is not to be literally construed; for, by the preceding section, powers, as they previously existed in law, were abolished, and in the case already mentioned the court of last resort has held that these provisions, though mentioning land alone, are to be applied, not only to real, but also to personal, property. This definition is exceedingly broad from the language which has been employed to make it, and it has, in the most general way, provided for the delegation of the authority to do an act which the owner of the property himself might lawfully perform. And there can be no room for doubt, if the testator had obtained the creation of this corporation during his life-time, he might, in the exercise of his discretion, have done precisely what he has declared it to be his intention that his trustees and executors after his decease might do. He has, therefore, attempted to confer upon them no more or greater measure of authority than, under this section of the act, he was in general terms empowered to bestow.
The statute has further proceeded to define the different classes of powers which may be created, and they have been designated as general, or special and beneficial, or in trust; and that discretionary powers were intended in this manner to be permitted to be created, dependent solely upon the will and disposition of the grantee of the power, is rendered evident by the language of section 96 of the same title; for, while that section has provided that imperative powers, actually creating a duty for the grantee, may be compelled to be performed by a court of equity for the benefit of the persons interested, it has also made an exception to this power of compulsion of powers expressly dependent on the will of the grantee, and if powers could not be legally created, where they should be made expressly to depend on the will of the grantee of the power, there would be no room for making the exception or reservation of them in this manner contained in this section of the statute. By making it, both the revisers and the legislature have demonstrated their intention to be to sanction and permit the creation of powers for the benefit of an ascertained and designated beneficiary, as the power in this case has been created, wholly dependent afterwards for their execution on the will of the grantee, which may, or may not, according to his will, be carried into execution. Their legality has been assumed and made the subject of implied statutory protection. The language clearly evinces as much as this to have been the design, and it excludes this class of cases, as they necessarily must be, from the compulsory interposition and aid of the court, leaving them dependent alone for their execution on the will of the grantee of the power; and, having been in this manner reserved, this power has been in this case, as it well could be, left to depend, as the will has provided for the disposition
It is, then, left wholly to the option of the testator what the form of the power may be, and to what extent he may deem it proper to make it dependent upon the discretion or prudence of the grantee for the attainment of the end to be accomplished. By section 95 of the same article this special power is further declared to be “in trust when the disposition which it authorizes is limited to be made to any person or class of persons other than the grantee of such power;” and, like the other sections, it is entirely consistent with the existence of uncontrollable discretion vested in the grantee. This will did authorize such a disposition of the residuary estate of the testator, for it empowered the trustees and executors to transfer that part of the estate to the body corporate described and referred to in this manner in the will. It stands in entire harmony with the class of cases mentioned in the next succeeding section, in which the execution or non-execution of the power is made expressly to depend on the will of the grantee. Taken together, these sections of the statute supplied ample authority for the creation of this power. It was a power, as this has been mentioned in section 96 of the title, whose “execution or non-execution is made expressly to depend on the will of the grantee.” That fully describes it, and sanctions what the testator endeavored to accomplish by this delegation of power to his trustees and executors. Section 102 of the same article has declared that the provisions contained in the preceding article, from section 66 to section 71, both inclusive, in relation to express trusts and trustees, shall apply equally to powers in trust and the grantees of such powers; but neither of these sections has taken away the authority permitted by the provisions concerning powers to create a discretionary power in trust. If they apply at all to such a trust, they were intended to provide the means for its execution, if the persons to whom the
A further objection has been presented to the manner in which the law has provided for the management of this Tilden Trust; but that relates only to its government. The objection is more formal than real, and does not interfere with the substantial and beneficial administration of this estate. The object of the testator was to endow this corporation, subject to the approval of his executors and trustees, for the benefit of the masses of the public; and no informal error or irregularity in the mode of its action can be permitted to frustrate that intention, or prevent it from being carried into effect. As the case appears from the will, and the other proof which has been produced, the power itself conferring this trust upon the trustees and executors has the sanction of the law, and they have conformed to its requirements, as well as to those of the will, in carrying the power confided to them by the testator into execution. The judgment should be affirmed.
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NOTE.
Charitable Bequests—Certainty of Beneficiaries. A bequest “to the poor” of a certain city, in which there are no city paupers and no poor fund at testator’s death, is void for uncertainty. In re Hoffen’s Estate, (Wis.) 36 N. W. Rep. 407. So is a direction to executors to expend money “for charitable purposes. ” But a bequest to a designated institution, “for the relief of the resident poor, ” is valid; as is a bequest, on a contingency, to be given “to any of my heirs who are in need, or not in very comfortable circumstances, as to my executors may seem fit and proper; ” or to establish a school for “the education of young persons in the domestic and useful arts. ” Webster v. Morris, (Wis.) 28 N. W. Rep. 353. This case is also authority for saying that a bequest for two or more alternative charitable uses is not wholly invalidated by the invalidity of one of the uses. A residuary legatee of property, “to be disposed of by him for such charitable purposes as he shall think proper, ” takes it subject to distribution for charitable purposes. White v. Ditson, (Mass.) 4 N. E. Rep.’606. And it will be applied to charitable purposes under direction of the court, where the trustee has died, leaving the residuary estate undisposed of. Minot v. Baker, (Mass.) 17 N. E. Rep. 839. But, where no person is designated to apply a legacy “for charitable purposes, ” it is void. Norcross’ Adm’rs v. Murphy’s Ex’rs, (N. J.) 14 Atl. Rep. 903, reversing 9 Atl. Rep. 112. A residuary legacy to be distributed by a court of chancery among the “worthy poor” of a certain city is valid. Hunt v. Fowler, (I11.) 12 N. E. Rep. 331. So is a bequest to a certain town for its “worthy and unfortunate poor.” Dascomb v. Marston, (Me.) 13 Atl. Rep. 888. See, also, Camp v. Crocker’s Adm’r, (Conn.) 5 Atl. Rep. 604; Beardsley v. Selectmen, etc., (Conn.) 3 Atl. Rep. 557; Howe v. Wilson, (Mo.) 3 S. W. Rep. 390. A direction to testator’s sisters to apply the income from a certain fund to the relief “of the poor and unfortunate whom we have aided in past years, and also to others, as their judgments may dictate, strictly for private charities, ” is valid. Bullard v. Chandler, (Mass.) 21 N. E. Rep. 951. So is a provision to be applied by the executor for the relief of testator’s “most destitute” relatives, within certain degrees, Gafney v. Kenison, (N. H.) 10 Atl. Rep. 706; and a gift “to aid indigent young men” of a certain town “in fitting themselves for the evangelical ministry, ’’Trustees, etc., v. Whitney, (Conn.) 8 Atl. Rep. 141; also a bequest to an incorporated parish in trust for its poor; and it is not necessary that there should be any poor persons in the parish at testator’s death, Appeal of Goodrich, (Conn.) 18 Atl. Rep. 49. See, also, Wilson v. Perry, (W. Va.) 1 S. E. Rep. 302. But a clause authorizing an
Concurrence Opinion
(concurring.) The questions discussed by the Presiding Justice and Justice Daniels are not free from difficulty or doubt; but I think, on authority and proper judicial interpretation, the solution of them by the Presiding Justice is the more acceptable. I concur with him, therefore.
