36 N.Y.S. 576 | N.Y. Sup. Ct. | 1895
Lead Opinion
The testator, by his will and codicils, disposed of his estate as follows: By the first clause, he revoked all former wills. By the second, he directed the payment of his debts, funeral expenses, and the expenses of settling the estate. By the third, fourth, and fifth clauses, he devised and bequeathed to Lucy Fayerweather, his wife, $10,000; his residence, No. 11 East Fifty-Seventh street, with all the household furniture and effects therein, together with the horses and carriages and personal effects-in the stable connected with the house; and a net annual income of $15,000 during her life, payable quarterly,—-which provisions were in lieu of dower. By the seventh clause of the will and the fifth clause of the third codicil, he bequeathed $100,000 to Lucy J. Beardsley, $20,000 to Mary W. Achter, and $20,000 to Emma S. Drury, three nieces, who were his only heirs and next of kin. By the sixth clause of the will and the third clause of the third codicil, he bequeathed to Anna Amelia Joyce (now Reynolds) a life annuity of $4,000, provided she remained unmarried. By the seventh clause of his will and by the second and third codicils thereto, he bequeathed $32,600 to.various employés and servants. By the eighth clause of his will, he gave to five hospitals in the city of New York $95,000, as appears by this clause quoted in the statement of facts. By the ninth clause of his will, he bequeathed $2,100,000 to 20 educational corporations.. By the third clause of the fourth and last codicil, the remainder of his estate was disposed of as follows:
“All the rest and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed, and remaining after all the specific legacies in my said will and the several codicils thereto have been paid, and all the provisions of said will and codicils have-been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley, Thomas G. Ititch, and Henry B. Vaughan, to them- and their heirs forever.”
The testator’s estate amounted at his death to upwards of $6,000,000, and, after providing for all of the annuities and the specific devises and bequests, the residuary estate passing under the clause last quoted amounted to upwards of $3,000,000.
The special term found the following facts:
That the defendants Thomas G-. Bitch and Henry B. Vaughan, for themselves and on the part of Justus L. Bulkley, promised Daniel B. Fayerweather, now deceased, and induced him to believe, that if he-would make them and the defendant Justus L. Bulkley residuary legatees of his estate, as provided in the codicils of his will dated December 13, 1884, and November 15, 1890, the said residuary legatees would sell and convert said residuary estate into cash.
The executors of the testator’s widow and two of his heirs at law and next of kin seek to have the residuary clause declared invalid under chapter 360 of the Laws of 1860, which provides:
“Section 1. No person, having a husband, wife, child or parent, shall, by his- or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half and no more).”
The difficulty with their contention is that the widow and heirs released all of their interest in the estate, for valuable considerations paid to them. This statute was designed for the protection of husbands, wives, next of kin, and heirs at law; but it does not in any wise prevent them from releasing to educational corporations the benefits which they might have secured by resisting wills in contravention of the statute. It is urged that these releases were procured by fraud and undue influence. There is no evidence in the record justifying this contention. The terms of settlement were agreed on during the" controversy in the surrogate’s court over the probate of the will and codicils; and the-
The judgment should be affirmed, with separate bills of costs in favor of the respondents, payable out of the estate.
PARKER, .J., concurs,
Concurrence Opinion
The facts upon which the controversies in this case arise are not disputed, and, as I understand them, are briefly these: On the 6th of October, 1884, Payer-, weather made a will, by which, in the ninth clause thereof, he bequeathed certain sums of money to 20 educational institutions; .and then, by the tenth clause, he devised all the rest, residue, and remainder of his estate to his executors, in trust, to sell and convert into cash, and to divide the same equally among the ■several corporations mentioned in said ninth paragraph, share and share alike. Fayerweather was advised by his counsel that the provisions of his will contravened the restrictions of the law •of this state relative to benevolent corporations. Upon the execution of the will, he delivered it to one of the executors, with a certificate stating that he had been so advised, and expressing the trust that his “heirs” would permit the provisions of his will to be carried into effect. The statute which was contravened by the provisions of the will was that which prohibited a person having a husband, wife, child, or parent from devising or bequeathing to any benevolent, charitable, etc., society, in trust or otherwise, more than half of his or her estate after the payment of his or her debts. On the 13th of December, 1884, Fayerweather, having become suspicious as to the forbearance of his widow and next of kin in the assertion of the rights conferred upon them by the statute above mentioned, executed a codicil to his will, by. which he revoked the tenth clause, and bequeathed all the rest, residue, and remainder of his estate to the persons named in the eleventh paragraph of his will as his executors. Upon the execution of said codicil the testator delivered it, with a memorandum, to Mr. Ritch, one of his executors, in which he stated that he had made these executors his residuary legatees in the confidence
‘,‘PIease. advise me at once, in writing, what is the legal effect of this clause, and to whom and how would my residuary estate go in case of my death, supposing this first codicil to remain in force.”
• To this letter the executor Mr. Bitch replied:
“The intention of the change in question was to enable Messrs. Bulkley and myself to carry out the intentions of the will as modified by the various private memoranda in my possession. Neither Mr. Bulkley nor myself would have any moral right to treat any portion of your estate otherwise than as we know would conform to your wishes. I suggest that I call on you with these, and, if still approved by you, that they be left in a sealed package with Miss Joyce, or any one named by you. The legal effect of the clause in question is to vest the title to the residuary estate in Messrs. Bulkley and myself; but, as I have said, neither Mr. Bulkley nor I would wish to derive any personal benefit under the codicil.”
On the 15th of November, 1890, the testator executed a fourth codicil, by which he ratified and confirmed his will and codicils, and especially confirmed the revocation of the tenth clause, and changed the third clause of the first codicil so as to devise the residue, etc., of his estate to his three executors, instead of two. On the same day the testator died, leaving said will and four codicils unrevoked. This will and codicils have been admitted to probate. By these instruments it is clear that the executors and devisees took the rest, residue, and remainder of the estate as trustees, the corporations named in the ninth clause of the will being the cestuis que trustent, which trust can be enforced by the cestuis que trustent, unless the rights of some parties secured to them by law will be thereby contravened. It is clear that these executors could not put this residuary estate into their own pockets, and apply it to their own uses, the testator having made this disposition of his estate upon their promise to apply it in the manner provided for by his will. The tenth clause of the will,