Harris v. Slaght

46 Barb. 470, 1866 N.Y. App. Div. LEXIS 88

Opinion

By the Court, Johhson, J.

The first question in this case, is whether Folkerd C. Behring took an estate in fee under the will of his father, Cornelius 'Behring; in the twenty-nine acres of land in question. There are no words of perpetuity in the devise to Folkerd, and unless it appears from the whole tenor of the will that the testator intended to give an estate of inheritance, the devisee took an estate for life only, and at his decease the inheritance went to the plaintiff, and to his brothers and sisters and their heirs at law, subject only to the widow’s right of dower; the devisee having died without issue.

This question has so recently undergone a full, thorough, and elaborate examination in this court, in the case of Charter v. Otis, (41 Barb. 525,) that I shall content myself with stating my conclusions in the case, without going at length into the reasons upon which they are founded. Looking at the entire will of Cornelius Sebring, I am clearly of the opinion, that the devisor intended to give his son Folkerd an estate in fee simple, in the twenty-nine acres, and that such intention is apparent from the terms and provisions of the will as a whole, comparing ea-ch provision with the. others. The grounds of this opinion are briefly ■: 1. The introductory part of the will, which contains these words: “As for my worldly estate, after my decease, be disposed of in manner following.” This does not in any respect operate to enlarge the interest devised, and is only material on the question of the testator’s intention; 2. There is no residuary clause, in regard to the real estate, as there is in respect to the personal. 3. Both the real and the personal bequests are made to Folkerd in the same clause, and by the same words. 4. The devise to the testator’s son, John, of the home farm, and the bequest of a share of the personal estate, are in the same language, precisely, with the bequest to Folkerd: It is conceded that

John took a fee, by reason of the charge upon him, annexed as a proviso to the gift. This of course does not affect the devise to Folkerd, by way of operating to enlarge the estate he would take otherwise. But, it may possibly be referred to, as evincing an intention on the part of the testator to make a final and complete disposition, by his will, of his entire property, leaving no residue or remainder.

The next question which arises is, whether by the terms of the will of Folkerd C. Sebring, and the manifest intention of the testator, the land, as such, is given to the several societies mentioned, or the proceeds of the land merely, after sale, upon the death of the widow of the testator. Two of these societies, namely, “The American Board of Commissioners for Foreign Missions,” and “The Trustees of the Presbyterian House,” are authorized, in terms, by their respective charters, to take lands by devise. The other two not being expressly authorized to take lands by devise, in their charters, are incapable of taking under our statute; and if the gift is of the land, it is void as respects these' two others; But it is entirely clear, I think, that the bequést to these several societies are all of the proceeds of the land after sale, and in no respect of the land itself, as land. The terms of the will are as follows ; “After the death of my said wife Lois, it is my will and my order that all of my real and personal estate and property of every kind and nature and description shall be sold by my executor, and that the proceeds thereof be paid over to the following named charitable societies, in four equal portions.” Then follow provisions giving to his executors, in trust for each of said societies, one fourth part of the whole of such proceeds.- This, upon the well established rule of equi* table conversion, constitutes the several bequests to the several societies gifts of money instead of land. Both points under this head áre entirely settled in Downing v. Marshall, (23 N. Y. Rep. 366.)

. ,. The third important question is, whether the statute of 1860 relating to wills, operates upon the will of Folkerd G. Behring, and affects its provisions in respect to these several societies. 1 At the time of making the will in question, and at his decease, the testator had a wife, but no child or parents; He left him surviving sisters and the children and heirs at law of a deceased brother, and sisters. The statute (iSess; Daws of 1860, chap. 360,) provides in the first section that “no person having a husband, wife, child or parents 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/’ It further .provides that “ such devise of bequest shall be valid to the extent of one half and no more.” The second section repeals “all laws and parts of laws inconsistent with this act.” On behalf of the plaintiff it is insisted,- that if the provisions in the will in favor • of the several societies are to be regarded as bequests of money, instead of devises of land, they are void to the extent of one .half, by the above statute. On the other hand, the counsel of these several corporations strenuously contends, that inasmuch as the plaintiff does not sustain any such relation to the testator as the statute designates, she can not be heard to raise this question. The position taken is, that this statute was made for the benefit and protection of the husband, wife, child, or parent of the testator, and no other parties or persons, and that any one not sustaining either of these relations to a testator, can have no standing-in court to litigate a question of this character. This view of the policy of the statute was sustained by the learned judge at special term, and it was there held that the plaintiff could not contest the validity of the will upon that ground. I am unahle to concur in this view of the scope and policy of this statute. There ivould he great force in this position if the testator; standing in either of these relations to others, was restrained generally from disposing hy will of more than a certain amount or proportion of his property, either to corporations generally, or to persons other than those thus related. But the restraint is only against corporations of a specified character or description, and not even corporations generally. And as respects individuals, there is no restraint whatever. There is nothing whatever in the provisions of this act to prevent a testator, thus’ related, from giving his entire estate to other corporations or to other individuals. This consideration, as it seems to me, goes very far to establish the contrary proposition, that the statute had a far broader and more general design than the protection and assistance of certain specified relatives of a testator, and looks rather to the establishment of a general public policy, than to the advancement of private personal interests. Manifestly, I think, the spirit and policy of this statute is the same that dictated the provision of the Revised Statutes, that “no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter, or by statute, to take by devise.” This provision of the Revised Statutes was declared in Downing v. Marshall, (supra,) to be a prohibitory enactment, ^resting on a mortmain policy as distinctly as any act of the British parliament.” This being so, it is difficult to perceive, or suggest; any satisfactory reason why any heir at law of the testator, entitled to share in the estate, in case of the failure of the will, or the establishment of its invalidity in whole or in part, may not come into court in some authorized manner and have an adjudication Upon such will. It is claimed by these incorporated legatees that the widow of the testator is the only person who can raise the objection. But she has no interest in raising it. The will is in all respects valid as to her, and its provisions in her favor entirely satisfactory. She has the "use of the entire estate, real and personal, during her'life¿ and has no interest in the remainder. This is entirely satisfactory to her, and there would be no sense or propriety in her raising objections, or entering into a contest, to her own injury, The only proper persons to do this, manifestly, are the heirs at law who are entitled to the remainder after the determination of the life estate, provided these provisions which would then alone stand in their way, shall be adjudged in whole or in part illegal and void.

Our judicial system would be lamentably defective if the" only parties legally entitled to property attempted to be conveyed or bequeathed contrary to law, could not be heard to object to the illegal provisions of the instrument which alone stood in the way of the complete enjoyment of their rights.

I can have no doubt whatever that the plaintiff is entitled to maintain an action to- have the validity of the provisions of the will in question adjudicated upon and determined.

By this will the widow gets only the use of the estate for her life, and at her death the entire estate, real and personal, is to be sold and converted into money and paid over in equal parts to these four corporations. This is in direct and plain violation of the express provisions of this statute, The testator attempted to do what the statute expressly prohibits, and the entire bequests to these societies would be nugatory and void upon well settled principles but for the provision which declares such a devise or bequest valid for one half, and no more. If these views are correct, the heirs at law of the testator have not and never can have any right to the possession of the real estate, and the action, so far as it seeks a partition of the land, can not be maintained. The widow has the sole right of use and occupancy during her life, and at her death the executors are expressly ordered and directed to sell the estate and convert it into, money. Whatever may be said of this as a. trust, it is clearly valid as a power in trust in favor of these corporations, as was expressly determined in Downing v. Marshall, (supra.)

[Monroe General -Term, September 3, 1866.

The result of the whole is, that at the death of the widow of the testator the executors are to convert the whole estate, real and personal, into money, and pay one half thereof to the several Societies in the proportions specified in ■ the will, and the other half to the heirs at law of the testator or their assigns in the proportions to which they are by law entitled, after first paying the costs of this action, which are to he charged upon such fund.

Judgment accordingly.

Welles, Darwin Smith and

Johnson, Justices.]