9 Barb. 324 | N.Y. Sup. Ct. | 1850
The intent.of the testator, manifested by his will, was, after the payment of debts and legacies, to appropriate the remainder of Ms large estate, real and personal, to the endowment and support of a school embracing literary instruction, combined with the pursuits of real life of every practical descriptionthe institution to be called the Polytechny, and to be formed upon the plan, as near as might be, laid down in a memorial presented by him to the legislature of the state of New-York, and the report of a committee and draft of a law founded thereon, during the session of the year 1830. The object, therefore, for which the testator attempted to create a trust of the residuum of his estate was laudable, though the scheme for effectuating it should be regarded as impracticable, and inconsistent with the rules of law. The intent was charitable, and the public were eventually to be the beneficiaries of the use. The end in view was to aid in raising the standard of popular information, and thus, as the testator himself expresses it, “ to give greater stability to the political institutions of the country.”
But though the object, in itself considered, may be meritorious, it must fail if the testator has attempted to carry it out in hostility to established legal rules. The duty of the court is to expound and declare the law, not to make it. The predilections of the judge form no excuse for encroachment upon the province of the legislature. If the testator has aimed at the creation of a trust not authorized by law, or if during the continuance of such trust, the power of alienation is suspended, and the trust term is not legally limited, the trust is invalid, the intent of the testator has failed, and so much of his estate as was the
The term charity does not extend to particular gifts to particular persons. A fund" supplied from private gift for any legal, public or general purpose, is a charity. (2 Sim. & Stuárt, 67, 594.) The’establishment of a school for learning of any description, and donations' for the establishment of colleges and schools, are charities: (2 Howard, 19.) As I have already intimated, the trust created by the will of the testator, of the- residuum of his estate, is for a charitable use. It is intended as a public charity. The question therefore is, can it be exectited ?
The counsel for’the' trustees concede that this charity would not be good in England, on account of the mortmain act. (9 Geo. 2, chap. 36.) That act avoids ¿11 devises to charitable uses. But were it not for that act, they insist, it would be good, and- that the court of chancery, by virtue of an original inherent jurisdiction, independent of the statute of 43d Elizabeth, commonly called the statute of charitable" uses, would eñforcé'its execution ; that the English law of' charities,- including that which authorizes a court of-equity to carry them into effect, was not derived from or founded on the statute of 43d Elizabeth, but was a part of the common law of England before and since that státute was enacted ; and being so, it became a part of the law of this state by constitutional adoption. The conclusion deduced is, that (conceding the statute of Elizabeth never" to have been in force in this state, or to have been" repealed,) the legislature' having repealed the statutes of mortmain, and the provisions of the revised statutes as to uses and trusts having no reference to or effect upon charitable uses and trusts, • if this charity would'
Devises, bequests, and conveyances for charitable purposes were, it would seem, in some cases, enforced at law as a condition, prior to the statute of Elizabeth. (Porter’s case, 1 Rep. 22.) The obligation was lawful, and on a failure to perform, the estate was forfeited. But whether the English court of chancery exercised jurisdiction over charities as such, in any shape, prior to the statute of Elizabeth, has, at least until a very recent period, been doubted. It has not been easy to arrive at a satisfactory conclusion as to how far the present authority and doctrines of the court of chancery in regard to charitable uses, depend upon the statute of Elizabeth, and. how far they arise from its general jurisdiction as a court of equity to enforce trusts, and especially trusts to pious uses. (Story’s Eq. Jur. § 1142.) It is remarkable, says Judge Story, that Sir Thomas Egerton, (who was made Lord Chancellor in 39th Elizabeth,) and Lord Coke, who argued Porter’s case for the Queen, although they cited many antecedent cases, refer to none which were not decided at law. (Story’s Eq. Jur. § 1144.) In the Attorney General v. Boxvyer, 3 Ves. 714, 726,) Lord Loughborough stated as the result of his researches, that until about the period of enacting the statute of Elizabeth, bills were not filed in chancery to establish charities. Lord Eldon, in Mills v. Farmer, (1 Meriv. 55,) said that he acceded fully to the remark of Sir Arthur Pigott in argument, that “ the difference between the case of individuals and that of charities is founded on a principle which has been established ever since the statute of charitable uses, in the reign of Elizabeth, and has been constantly acted upon from those days to the present.” (Moggredge v. Thatchwell, 7 Ves. 36.) And in the case of The Baptist Association v. Hart’s Executor, (4 Wheat. 1,) Chief Justice Marshall, in delivering the opinion of the court, elaborately considered the whole subject, and investigated all the leading authorities. In that case the court arrived at the conclusion, “that charities, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, could not be established by
Conceding, however, that all doubt is now at rest as to chancery exercising a sort of limited and imperfect jurisdiction over charities, prior and subsequent to the statute of Elizabeth, and independent of it, it is not to be controverted that the law of charities, as it prevailed in England and in the colony of hfewYork on the 19th of April, 1775, and which was a part of that common law which the constitution of 1777 recognized and adopted, was mainly if not exclusively founded upon and derived from the provisions of the statute of Elizabeth. Since that statute, Judge Story remarks, (and he is sustained by numerous authorities,) it is very certain that no bequests have been deemed within the authority of chancery, and capable of being established and regulated thereby, except bequests for those purposes which that statute enumerates as charitable, or which by analogy are deemed within its spirit and intendment. (Story’s Eq. Jur. § 1155.) At the period of the adoption of the constitution of 1777, the opinion was certainly universal, promulgated as it had been by distinguished equity judges themselves, after learned and extensive research, that the statute of Elizabeth was the fountain from which the authority and doctrine of chancery, in cases of charity, had exclusively sprung. There is no affirmative evidence that the statute of charitable uses was not in force in this state when a colony. The presumption is that it was. “It is a natural presumption,” says Chancellor Walworth, in the case of Bogardus v. Trinity Church, (4 Paige, 198,) “ and therefore is adopted as a rule of law, that on the settlement of a new territory by a colony from another country, especially when the colonists continue subject to the same government, they carry with them the general laws of the mother country, which are applicable to the situation of the colonists in the new territory ; which laws thus become the laws of the colony until they are altered by common consent or by legislative enactment. The
But assuming that the statute of Elizabeth never was in force in this state, or that it has been repealed; that by the common law of England and of this state when a colony, independent of any statute, charities could be established and enforced in equity; that such law became a part of the law of this state by constitutional adoption; and that anterior to the revised Statutes, (the legislature having repealed the statute of 9 Geo. 2, ch. 36,) perpetuities might be created through the medium of devises to charitable uses, the trust upheld and the charity established in a court ef equity; the question remains whether, under the provisions of the revised statutes respecting trusts and perpetu
1. All uses and trusts, except as authorized and modified in the article of the revised statutes, entitled “ Of uses and trusts are abolished. (1 R. S. 727, § 45.) No express trusts can any longer be created, except those enumerated in the 55th section of that article. In determining the question of the validity or invalidity of an express trust, we are to look to that section alone. If enumerated within its subdivisions, the trust is valid ; if not, it is illegal and void, unless capable of execution as a power in trust. (§ 58.) The trust declared by the will of the testator, so far as it affects the residue of his real estate after payment of debts and legacies, is not authorized and defined by that section. The conclusion is that it is invalid; and this would seem to be conceded by the counsel for the trustees, if the statute has reference to, or affects, charitable uses and trusts. It is urged, however, that the article “ Of uses and trustsrelates only to private trusts, and that it was not intended to affect charitable uses or public trusts ; that the statute only refers to personal rights, and that the term uses employed in it, means such as can be enforced in favor of individuals. To ascertain the intention of the legislature in the enactment of a particular statute, courts are first to look at the words of it. These may be So simple, intelligible and unambiguous, as plainly to speak the legislative intent, leaving no room for construction. If so, we should go no further. It is not to be assumed in this case that the legislature, or those eminent and learned men who prepared
What I have said thus far is based upon the broad, emphatic and comprehensive words of the statute. Other views may be
Again; the legislature have in some degree interpreted, by subsequent statutes, their intention, in the revision, to abolish public and charitable trusts, and to apply to them the statutory rules prohibiting perpetuities. In 1840, they provided that real and personal property might be granted and conveyed to any incorporated college or other literary incorporated institution in this state, in trust, 1st. To establish and maintain an observatory; 2d. To found and maintain professorships and scholarships ; 3d. To provide and keep in repair places for burial of the dead; 4th. For any other specific purposes, comprehended in the general objects authorized by their respective charters. So also they provided that real and personal estate might be granted and conveyed to the corporation of any city, or village, to be held in trust for any purpose of education, or the diffusion of knowledge, or the relief of distress, or for parks, gardens, or other ornamental grounds, or grounds for the purposes of military parade and exercise, or health and recreation, within or near such incorporated city or village; the trusts to continue for such time as might be necessary to accomplish the purposes for which they might be created. (Laws of 1840, chap. 318.) And in 1841, they provided, that devises and bequests of real and
My conclusion is, that trusts of real property, for charitable uses, are not valid in law unless of the description authorized by the statute of 1840, and made to such trustees as are therein authorized to hold. Nor can I say that I arrive at such a conclusion with regret; for trusts are not necessary for public charities ; direct grants are always better. This court has not heretofore been called upon to determine whether the provisions of the revised statutes referred to or affected this character of uses and trusts. What wc have upon that point is from Assistant Vice Chancellor Sandford, and the superior court of the city of New-York; the former holding that the article of uses and trusts related only to private trusts ; the latter, that charitable uses and trusts were affected by it. (Shotwell v. Mott, 2 Sand. Ch. R. 46. Ayers et al. Ex'rs v. Trustees for the Corporation of the Methodist Episcopal Church et al., 8 N. Y. Legal
II. The absolute power of alienation of an estate in lands is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. (1 R. S. 728, § 14.) This power of alienation can not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate. (1 R. S. 723 § 15.) The restrictions of the statute are equally applicable to present and to future estates. (16 Wend. 128,163. 14 Id. 265.) A similar rule is applied to personal property. The absolute ownership of personal property can not be suspended, by any limitation or condition whatsoever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or if such instrument be a will, for not more than two lives in being at the death of the testator. (1 R. S. 773.) The provision is the same in effect as that relating to real estate; as absolute ownership implies the right of absolute disposal.
The testator’s intention as evinced by his will, was that his debts and the legacies specifically given, should be first paid out of the trust property. To effectuate this intent he authorized his trustees to sell his real property, except his estate at Ohittenango and its vicinity. The latter estate was to be preserved, unless absolutely required to pay debts and legacies. The object, as he states, which he had in view in the purchase and extension of that property, was the establishment of the Polytechny, and he anxiously hoped that the derangement of his affairs and the extent of his debts might not require its abandonment.
If it should become necessary for the payment of debts and legacies to sell the Ohittenango estate or any part thereof, then the ground suitable for village lots should be sold, the trustees giving six months’ notice, <fcc., and as the sale of village lots would always be necessary, as the testator supposed, for the advantage of the place, whether the proceeds were required for the
The will provides that if, after winding up and settling the affairs of the testator, the trustees ascertain that there are funds sufficient left to commence and found the school, they are to petition the legislature of this state to accept the devise for the object of endowing and supporting the Polytechny upon the testator’s plan; to confirm its permanency by a legislative act, and make the necessary arrangements for its uniform and steady government. If such a law can not be obtained in this state, to the satisfaction of the trustees, then the residue of the testator’s estate is to be disposed of, and the money received therefor invested, until the sum of $100,000 be funded, when the trustees are to form the institution in any state a majority of them please to select, which is willing to give the proper irrevocable legal guaranty for its performance, and appropriate not less than 1000 acres of land for the purpose.
The application of the property devised is postponed until the estate of the testator is settled, and it is ascertained that there is sufficient for the establishment of the school, and until the legislature of this state shall have passed a law accepting the devise, and made the necessary arrangements for the government of the school, to the satisfaction of the trustees. Until these conditions are performed, who are capable of conveying the property ? Not the trustees, if the trust be valid, and they take the estate; for any act of theirs in contravention of the trust is absolutely void. (R. S. 730, § 65. 14 Wend. 313.) Not the Polytechny; for it is not in existence. Not the state; for it has not accepted the devise. If it be the heirs at law of the testator, the estate must have descended to them for the reason
The will in this case suspends the power of alienation of the residue of the real estate and the disposition of the personal that may be accumulated by the sale of any part of such realty, for an indefinite term, to wit: from the testator’s death until his affairs are wound up, and until it is ascertained that there is sufficient for the establishment of the Polytechny: and further, until the legislature of this state shall have accepted the devise, and made the necessary arrangements for the government of the school, to the satisfaction of the trustees. This is a limitation unauthorized by law. The law against the suspense of alienation of real or personal property, is ajjplicable to every species of conveyance and limitation, whether it be by deed or will; whether it be directly to a party competent to hold property, or indirectly in trust or to the use of such party, or to one hereafter to come into existence; and whether limited by an executory devise, or a springing use, and whether in the form of a power in trust, or of a legal express trust. If therefore, it be conceded that there is an express trust, or an executory devise, or a power in trust, with a valid and legitimate- object, for charitable uses, and in all other respects unexceptionable; yet the estate depending on conditions as to the time of vesting which suspend the alienation for a period not measured By° a life or two lives in being, it is equally as void as if the object had been illegal.
It is urged that the devise being for a public charity, it does not fall within the restrictions of the statute respecting the creation of perpetuities. The testator has, by his will, created either a present or future estate in lands. If he has not, then the lands have descended to his heirs at law. All estates, by the statute, are void in their creation, if the absolute power of alienation is not limited according to law. The statute is general and comprehensive; there are no exceptions. But as I have before remarked, the mischief to be guarded against was
It is urged also, that here was a conditional devise to the state for the purpose specified in the will, and as such it was free from all legal objections. The state is not made either devisee or beneficiary. All the state has to do is to sanction and give the devise effect; and whatever it may do, if not approved by the trustees, is to be a nullity. But a perpetuity can not be created by a devise to the state, more than to individuals. Nor can the state, as was suggested on the argument, legalize or continue the devise so as to pass it into the hands of a corporation to be created by it in futuro. If, as the law existed at the death of the testator, the devise was invalid, and the estate descended to the heirs at law, no subsequent action of the legislature could legally divest them of it.
III. It is perhaps unnecessary that we should specifically inquire whether there is a power in trust in the will, by which the intention of the testator as to the remainder of his estate can be carried into effect; because upon the assumption that there is a power in trust, it would be subject to the same rules, as to the suspension of the power of alienation, as direct trusts. The real estate reserved for the school would descend to the heirs at law subject to the execution of the power. The testator’s property would go to his heirs until the time arrived to establish and endow the Polytechny. Then by the execution of the power, the estate of the heirs would be divested. So long as such a power existed, an absolute fee could not be conveyed. The statute is, that alienation shall not be suspended by any limitation or condition whatever. If it can not be by an express trust or an executory devise, neither can it be by a power in trust. (1 R. S. 737, §§ 128,129. Hawley v. James, 16 Wend. 135, 178. 14 Wend. 324.) But it is questionable whether the power contained in the devise is a power in trust at all, either
I am of the opinion that the trust created by the will of the testator, so far as relates to the residue of his estate after the payment of debts and specific legacies, is invalid, for the reasons, 1st. That the trust created is not authorized by law; 2d. That if it be regarded as an express trust or a power in trust, or an executory devise, the power of alienation is suspended for an indefinite term, not measured by a designated life or two lives in being, but by contingent events. The remainder of the real estate, after the payment of debts and legacies, descends to the heirs at law of the testator, and so much of the personal estate as has been accumulated and invested for the support of the Polytechny, by a sale of the real property at Chittenango, or which is not required for the payment of debts and legacies, ' passes to his next of kin.
There must be a decree declaring that the trust created by the testator’s will, so far as its object is to pay the debts of the testator and the legacies specifically bequeathed, is valid; that the trust in the remainder of the testator’s estate, having for its object the endowment and support of the Polytechny, is invalid, not being authorized by law, and suspending the power of alienation of an absolute fee in possession for an indefinite term, without reference to any designated life or two lives in being; that there be a reference to a competent person to take and state the account of the executors, and report thereon to the court, and on the- confirmation of such report, that a final decree be entered directing the distribution of the assets in hand, disposing of the shares and rights of the respective defendants in the real and personal estate of the testator, and settling all questions of costs and expenses, and out of what funds to be paid.