Trustees of Amherst College v. Ritch, 36 N.Y.S. 576

Trustees of Amherst College v. Ritch

36 N.Y.S. 576 | N.Y. Sup. Ct. | 1895

Lead Opinion

FOLLETT, J.

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. *587and divide the same equally, share and share alike, among the 20 corporations mentioned in the ninth paragraph of the said Daniel B. Fayerweather’s will, dated October 6, 1884, including the plaintiffs, after paying $100,000 to the Northwestern University, and that the said Daniel B. Fayerweather made the said Bitch, Bulkley, and Vaughan his residuary legatees, in and by the said codicils, in reliance upon the said promise and inducements, and died leaving the said Bitch, Bulkley, and Vaughan his residuary legatees in the belief so induced by them that they would sell, convert, and distribute the residuary estate as aforesaid, and that the said Bitch, Bulkley, and Vaughan have attempted to dispose of the said residuary estate in violation and disregard of the said promises. These facts are amply supported by the evidence. The testimony of Bitch and Vaughan and the correspondence conclusively show that they definitely promised the testator to dispose of the residuary estate bequeathed to them in accordance with the provisions of the tenth clause of the will. No other conclusion is possible, and we are of the opinion that the evidence warrants the conclusion that there was an understanding between Justus L. Bulkley and the testator that the estate should be so disposed of. Bulkley had for many years been an intimate friend of the testator, and was nominated as one of the executors in the will of 1880, and he joined with the other residuary legatees in divesting themselves of all personal interest under the residuary clause of the will, which seems to us to show that there was an understanding between the testator and all of the residuary legatees that the residuum should be disposed of in accordance with the testator’s wish expressed in his will and the memorandums. This brings the case within the rule laid down in O’Hara v. Dudley, 95 N. Y. 403. The residuary legatees acquired no personal interest in the residuum, but" took it as trustees.

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-*588widow and heirs were represented in that controversy and in the settlement by distinguished counsel, and acted under their advice. The residuary legatees not having any personal interest in the residuary estate, and the widow and heirs having released-, all their interest therein, there is no person who is entitled to raise the question that the residuary clause is void under the act of 1860. Ko person or corporation, except the state, in certain cases, can impeach the validity of the disposition of property by will, unless the contestant, if successful, will acquire some interest under the statutes of descent or of distribution, or as devisee or legatee, in the property attempted to be disposed of by tljie will; and if the person entitled to contest a will, or some one or more of its provisions, voluntarily and for a valuable consideration received after, the testator’s death, with full knowledge of the invalidity of the will, divests himself of all interest in the property disposed of by it, he cannot impeach its validity.

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

VAN BRUNT, P. J. (concurring).

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 *589that thereby his intentions as expressed in his will would be carried into effect, and without litigation on the part of any person or persons interested. On the 7th of January, 1888, the testator executed a second codicil, by which he gave certain additional legacies, named a third person as executor of his will and trustee of his estate, and conferred the same powers on the three executors as had been conferred by the will on the two. On the 19th of March, 1889, the testator executed a third codicil, by which he ratified his wijl and codicils, except as therein modified. He made some changes, and gave some additional legacies. Upon the execution of this codicil he delivered it, with a memorandum, to one of his executors for safe-keeping. The memorandum related to sums to be given to certain charitable institutions, and also some small gifts to divers persons. On the 13th of November, 1890, this executor, upon the testator’s order, delivered his will and the first, second, and third codicils to the executor whom the testator had last named, who delivered them to the testator. On the next day the testator sent a letter to one of his executors, calling his attention to the revocation of the tenth clause of the will by the first codicil, and the devise of all the rest, etc., of his estate to the executors named in the eleventh clause, and asked:

‘,‘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, *590although revoked by the codicils, still existed, for the purpose of defining the trust. The testator left him surviving a widow, who was the only person who could call into operation for her protection the statute which we have quoted. The widow, however, has released to the executors all claims to the estate, which release cannot be successfully attacked or set aside. There is consequently no person for whose benefit the statute can operate. No rights of heirs and next of kin have been infringed upon, because the trust does not contravene any statute for their benefit, and is not the subfect of attack by them. If it were, they have also executed a release of their interest in the estate, in the same manner as the widow. We have therefore the case of a trust established, which would be valid as against all the world, but for the statute in favor of the widow; and, the widow having released all her rights in the estate, how can she claim, the invalidity of a trust as to property in which she has no interest? The widow is not aggrieved, and under such circumstances the trust must be executed.