Johnston v. Hughes

112 A.D. 524, 98 N.Y.S. 525, 1906 N.Y. App. Div. LEXIS 718

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1906
• Status: Published

Opinions

Clarke, J.:

The last will and testament of Joseph Hughes, deceased, contained the following clause: “Third: I give and devise to my Executors hereinafter named or such on'e of them as shall qualify, all my real estate situate, lying and being in. the State of Hew York, in trust, to sell and dispose of the same at public or private sale, and to divide the net proceeds ‘of such sale as follows: Three equal fourth parts thereof to the Trustees of St. Francis. Hospital in the City of Hew York for the benefit and use of the Blessed Virgin Mary Purgatorial Fund , of. said Hospital; one equal eighth part thereof to my sister Susan M. Biordan; one equal sixteenth part thereof to my niece, Mary C. Adams, and the remaining equal sixteenth part thereof to my nephew, William Michael Hughe's.”

The learned court found as facts that there was no body corporate known as St. Francis’ Hospital; that the Sisters of the Poor of St. Francis is a domestic corporation duly organized and existing under the provisions of chapter 201 of the Laws of 1866, and the only objects of the said corporation specified in the act of its incorporation are the care of the sick, aged, infirm and poor; that the object of the testator’s bounty is not within the corporate purposes and powers or any of them of the defendant, the Sisters of the Poor of St. Francis; that the said corporation maintains a hospital in the city of Hew York popularly known as “ St. Francis’ Hospital; ” that “ there never was and is not now a ‘ Blessed Virgin Máry Purgatoria,! Fund,’ maintained by the defendant, the Sisters of the Poor of St. Francis, or by said Hospital; ” that “ the only.possible object of a Purgatorial Fund is the saying of masses for the spiritual welfare of the souls of the dead in Purgatory; ” and, as a conclusion of law, that the devise or bequest to the trustees of St. Francis’ Hospital for the benefit and use of the Blessed Virgin Mary Purgatorial Fund of said hospital is invalid and void.

, The appellant duly excepted to' such finding, and alone appeals from the judgment entered in accordance with the decision.

Although the will describes the legatee as “ the Trustees of St. Francis’ Hospital in the City of Hew York,” and there is-no corporate entity known as St. Francis’ Hospital, and hence no trustees thereof exist, there is no difficulty in identifying the intended object of the testator’s bounty, in that it appears that there "is a St. Francis’ Hospital in' the city of Hew York .and that it is maintained by the Sister’s of the Poor óf St. Francisca domestic corporation. It being clear that it was the intention of the testator that the managers of the hospital should take -the bequest, we can hold the corporation to be the intended legatee. This view is strengthened by the fact that the charter of the corporation provides that “ no misnomer of said corporation shall defeat any gift, grant or devise, provided the intent shall sufficiently appear that any estate or interest was made to be vested in said corporation.”

The question remains, was it a valid gift Í Was it for an object within one of the corporate purposes ? Judge Rafallo, in Holland v, Alcock (108 N. Y. 337) stated the! question to be “ whether the grantor or devisor of a fund designed for charity is competent to give, and whether the organized body is endowed by law with capacity to receive and to hold and administer the gift.” The appellant’s charter provides: “The objects of said corporation are the gratuitous care of the sick, aged, infirm and' poor.” The .gift was “ for the benefit and use of the Blessed Virgin Mary Purgatorial Fund of said Hospital.” It is conceded and established that the only possible object of a purgatorial fund is ¡the saying of masses for the spiritual welfare of the souls of the dead in purgatory. There is no such fund existing. I do not understand that the gift can be held good under the contention that the testator intended, to create such a fund, but that it must rest upon the proposition that the bequest would go to the appellant absolutely as a general gift if the same was donated for an object within any one of its corporate purposes. A corporation’s purposes are fixed by its charter and the ■ 'laws under which it is organized. This corporation is not a religious corporation and is not organized under the Religious Corporations Law. (Laws of 1895, chap. 723, as amd.) To constitute such, it must be either, first, an incorporated church created to enable its members to meet for divine worship or other religious observances-; or, second, an incorporated congregation, society or other assemblage, accustomed to meet for the same purpose. (See Id. § 2.) If it were such, a fund of the character intimated might be properly within the objects of the corporation, for, certainly,- to a considerable portion of the community the saying of masses for the poor souls is a most, deeply religious observance. But this corporation has for its object the care of the bodies of the living and not the welfare of the souls of the dead.

In Chamberlain v. Chamberlain (43 N. Y. 424), cited by appellant, the testator sought to dispose of his residuary estate to the Centenary Fund Society, a Pennsylvania corporation, and the court said: “ The validity of the provision in favor of this society depends upon its power to take and hold in the manner and for the purpose indicated by the testator.” The court then points out that the society had power to take and hold property for such purpose within certain limitations as to amount. So, in Matter of Strickland’s Estate (17 N. Y. Supp. 304), the testator gave to the trustees of each of four incorporated religious societies a sum of money, in trust, to be invested, and the interest to be applied to the support of the pastor in charge. The General Term said: “The gift in each case was for one or more of the purposes of the incorporation of (he institution" to which it was made, i In the ease of each of the four, churches it was for the support of the pastor—a recognized and undoubted purpose for which the church was organized—-and therefore the gift was not only to the corporation, but was directly for.its benefit.”

In Fosdick v. Town of Hempstead (125 N. Y. 581) Judge Peckham said: “ The gift, in order to take effect as an absolute one, must be for some one or all of the purposes for which the corporation was created,” and points out that “the cases of Wetmore v. Parker (52 N. Y. 459); Le Couteulx v. Buffalo

* (33 id. 333); Vail v. Long Island Railroad Co. (106 id. 283) were all instances of a gift to a corporation having power to take for the purpose that the gift was intended, and hence a direction accompanying the gift that it was to be use'd only for a corporate purpose, or that the income only was to 'be used, did not create a trust.”

In Bird v. Merklee (144 N. Y. 550) Judge Bartlett said : “ If it were necessary, in order to sustain the bequest, these words of designation by the testator might be treated as merely precatory/ but we think it was entirely competent for him to apply his bounty to the whole or any one or more of the 'various purposes for which the corporations are authorized to hold property.”

As it seems' clear that the object of this gift was not within any of the purposes of this corporation, J find myself, under the authorities cited, in - agreement with the. learned judge who decided this case at the Special Term, when he said : “ T have searched in vain to try and find some ground upon which -I could be justified in upholding this bequest, trying to bring the unquestioned intention of the' testator within legal bounds, so that effect may be given to what his undoubted desire was, but I cannot do it.”

' So far as the suggestion is made by tile executor on this appeal as to the proper disposition of this void legacy it is sufficient to say that there having been no appeal by any of tlie parties interested, that question is not before us.

The judgment appealed from should be affirmed.

Patterson and Laughlin, JJ., concurred ; O’Brien, P. J., and Ingraham, J., dissented.

Le Couteulx v. City of Buffalo.— [Rep.