Kerr v. . Dougherty

79 N.Y. 327, 1880 N.Y. LEXIS 2

Opinions

Miller, J.

Numerous questions arise upon this appeal in regard to the construction of the will of the testator. Most of them are sufficiently considered in the elaborate opinion of the judge at Special Term, and the discussion here will be confined to such of them as are deemed material for a proper disposition of the case.

The legacy to the directors of the Union Theological Seminary, of the city of New York, of the sum of $10,000, devised by the fifth clause of the will, is claimed to be void on several grounds, and mainly for the reason that it is in conflict with the provisions of section 6 of chapter 319 of the Laws of 1848. There is no force in any of the objections urged, unless it may be, in the one last stated, and that will be duly considered. The act in question is entitled, “An act for the incorporation of benevolent, charitable, scientific and missionary societies; ” and the first section of the act authorizes the incorporation of these societies, for the purposes named, with the addition of societies for literary, mission or other Sabbath school purposes. The sixth section cited is as follows: “Any corporation formed under this act shall be capable of taking, holding and receiving any property, real or personal, by virtue of any devise or bequest contained in any last' will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of $10,000, provided no person leaving a wife, child or parent shall devise or bequeath to such institution or corporation more than one-fourth 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 such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.” The question is whether this section applies to the Union Theological Seminary and controls the devise in question ; and to determine this question it is important to consider the act incorporating the seminary and those laws amending said act, as well as other provisions of law relating to the subject.

The act to incorporate the Union Theological Seminary (chap. 99, S. L. of 1839), authorizes the taking and holding by gift, grant and devise, or otherwise, and the purchasing and conveying of property as therein provided. The act to amend the same (chap. 636, S. L. of 1865, § 1), declares, that it shall be lawful for said seminary, “ subject to existing laws to take and hold ” property, as provided. And the act to further amend the act of 1839 (chap. 129, Laws of 1870), limits the power to take and hold “by gift, grant or devise or otherwise, subject to all the provisions of law ' relating to devises and bequests by last will and testament.”' In the comprehensive words employed in the language quoted, the Legislature no doubt intended to embrace “all tho provisions of law” of a general character relating to tho subject, which would, we think, include those contained in the act of 1848. This would also include the provisions of the “ act relating to wills ” (chap. 360 of the Laws of 1860), which prohibits any devise or bequest to any benevolent, charitable,' literary, scientific, religious or missionary society, by a person having a husband, wife, child or parent, of more than one-half part of his or her estate, and provides that such devise or bequest shall be valid to the extent of one-half and no more; and the provisions of the act to amend the act of 1848 (chap. 51 of the "Laws of 1870), which, among other things, authorizes the incorporation of any society for the purpose of establishing and maintaining any educational institution ” and confers power upon any university or college incorporated under the act of 1848 and the amendatory act, to take and hold property.

The act of 1860 is not, I think, inconsistent with the two months clause which constitutes a- part of section six of the act of 1848, but is in harmony with it and does not repeal the clause in question : (Le Fevre v. Le Fevre, 59 N. Y., 449.) These are the only general provisions of law relating to the subject, and the inquiry may well be made to what did the act of 1870, amending the defendent’s charter refer, unless it was to the law of 1848 and the law of 1860 above cited ? That these provisions are general in their character appears to be conceded by the opinions in Le Fevre v. Le Fevre (supra). In the case cited it was held that the Female Gpardjan Society was subjected by section six of the act of 1848 to the operation of the two months clause, and that the bequest was void. It was also held that the provision referred to was not repealed, by express terms or otherwise, by the act of 1860, and that it might be read as if a part of section six, without any want of harmony with the inhibition of making a will within two months before death. It is contended that section six is by its terms confined to corporations organized under that act; that it is not a law relating to wills, and therefore can have no application. The answer to this position is that in the case last cited this court held that a corporation chartered by special act might be made subject, by appropriate language, to the provisions of the general act of 1848 restricting its capacity to take. It is true in the case cited the provision in the charter was “ subject to the same provisions as provided in the general laws for the incorporation of religious and benevolent societies ; ” but this language is not any more comprehensive than that contained in defendant’s charter, as we have seen. Looking at the intention of the Legislature, it is to be presumed that the same intention existed in chartering the defendant’s corporation as did in reference to the Female Guardian Society, and any inference to the contrary would leave the limitation 'without any meaning, as by its terms it could not apply to any other laws.

It is further contended that the act of 1848 is not a provision of law relating to wills. The answer to this position is that this is not required by the defendant’s charter. The language employed relates to devises and bequests by last will and testament, and hence the bequest is brought directly within the words of the act of 1848. It may be. added that as devises and bequests pertain to wills, it is not apparent why the provision in question does not relate to them. . The provision of law referred to expressly meets the-terms employed in the charter. The argument, that the-judgment can be upheld only by construing the statute of. 1848 and 1860 to mean something which is not expressed,, is not, we think, well founded. The designation of the vari pus institutions named in the act should receive a liberal interpretation, and not be restrained by any technical rule. It is conceded that the defendant’s institution is a “seminary ” for the instruction of students in “ theology.” What is this but a “ literary ” institution, within the very language of the law. It certainly relates to letters and to literature. It is also “ benevolent,” for it was incorporated to impart religious instruction, without any purpose of gain. For the same reason it comes within the definition of “ charitable,” as charitable uses embrace gifts for general public uses, and may include both the rich and the poor : (Bouvier, title Charitable Uses.) Properly speaking, then, the defendant comes palpably within the strict and literal meaning of the terms employed in the act of 1848. We do not deem this material, however, for it is quite sufficient if the defendant is included within the general purposes of the act which relates to devises and bequests by will. And when the Legislature provided in the defendant’s charter that the power to take by devise should be controlled by “ all provisions of law ” relating to that subject, it included the provision cited from the act of 1848, without regard to its title, or any particular institutions therein named, even although such provision was originally intended to be restricted in its operation to corporations formed under that act. There can, we think, be no doubt as to the power of the Legislature to pass a law applying a prior enactment relating to particular institutions therein named, by implication or by reference, as well as by an exact recital of the language employed, to other institutions not named by a subsequent act.

It is also claimed that as the act of 1870, amending the act of 1848 and authorizing the incorporation of any society for the purpose of establishing and maintaining any educational institution, and also provides for the taking and holding, by gift, grant, devise or bequest, of any university or college incorporated under said act, subject to the restrictions contained in the act of 1860, it excludes all other restrictions, and repeals the two months clause in section six of the act of 1848. If the defendant is a benevolent, literary or charitable institution, then of course the latter act can make no difference. To hold that the defendant came within the provision cited and no other, would entirely exclude the amendment to its charter passed in 1870, which, as we have seen, includes “ all provisions of law,” while the amendment applies the act of 1848 to a “ university or college,” which is not the designation by which the defendant was chartered or is generally known. It may also be remarked that the amendment to the defendant’s charter was passed subsequent to the amendments of the act of 1848, and hence, as the last enactment would include every provision of law, it is not restricted to the act of 1860. It should also be noticed that it is at least questionable whether the restriction in the act of 1870 is hot qualified by the defendant’s charter, and should not be regarded as only an additional one besides those already imposed, without in any way impairing the effect of such charter. There is nothing, we think, in the point urged that if the act of 1870, amending the defendant’s charter, has the effect claimed, it is a mortmain act. Nor is it essential, we think, that the two months clause, and all the other restrictions contained in section six, should be held to apply to a devise or bequest, in order to enforce such clause. The various acts of the Legislature which have been cited would seem to indicate a general policy of the State in reference to restricting devises and bequests made to corporations of a particular class ; but aside from such a consideration, it is sufficient that a fair interpretation of the provisions cited leads to the conclusion that this defendant was not entitled to the bequest made to it by the will of the testator.

There is, we think, no analogy between this defendant’s charter and the charter of the Board of Foreign Missions, for the latter restricts the power to take, subject to the provisions of the act of 1860, while the former covers all provisions of the law on the subject. Some other questions are made in reference to the point considered, hut nono of them, we think, demand especial attention.

The validity of the bequests to the New York City Mission and Tract Society incorporated by the act chapter 63, Laws of 1866, depends upon restrictions contained inits act of incorporation of a similar character to those incorporated in the charter of the Union Theological Seminary, and the bequest must fail for the reason stated in reference to the latter institution.

No appeal is taken from the decision in reference to the bequests to the Board of Home Missions and the Presbyterian Hospital, and hence no question is presented as to these institutions.

The validity of the bequest to the Trustees of the General Assembly of the Presbyterian Church in the United States of America, for the use of the fund of disabled ministers, depends upon the question whether the laws of the State of Pennsylvania, which declare the manner in which devises or gifts of this kind shall be made, are applicable and control the bequest in question. The eleventh section of the act of 1855, of that State, relating to this subject declares that: “No estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same, be done by deed or will, attested by two credible, and at the same time, disinterested witnesses, at hast one calendar month before the decease of the testator or alienor, and all dispositions of property contrary hereto, shall be void, and go, to the residuary legatee or devisee, next of kin of heirs, according to law, provided that any dispositions of property within said period, bona fide, made fora fair, valuable consideration, shall not be hereby avoided.” Section fifteen provides that: “ All dispositions of property hereafter made to religious, charitable, literary, or scientific uses, and all incorporations or associations formed for such objects, shall be taken to have been made and formed under, and in subordination to all the duties and requirements of this act, as rules of property and laws for their government.”

Two corporations claim that they were intended to be designated by this bequest, who are defendants herein. Both were organized under the laws of Pennsylvania ; and under the provisions cited it is very clear that if the testator had been a resident of the State of Pennsylvania, the bequest made would have been entirely nugatory, for the reason that the will was executed within one month before the decease of the testator, in violation of section eleven above cited. The question then arises whether the fact that the devisee was a non-resident makes any difference, and renders a bequest plainly in violation of the laws referred to,-if made in Pennsylvania, valid and effectual.

The evident object of the laws of Pennsylvania, which have been cited, was to prevent devises or gifts for charitable and religious purposes, except in the manner expressly provided. The will or deed must not only be executed in the presence of two Avitnesses, but at least one calendar month prior to the death of the giver. ,The limitation related both to the poAver to dispose of property and the right to take it by deed, bequest or devise, and it cannot be claimed, upon any valid ground, that the laAV was intended to be confined in its operation to the mere formal requisites essential to the valid execution of the instrument. It virtually declares that no estate ” shall pass, and that “ all dispositions of property,” for the purposes of the act, without regard to the domicile of the giver, shall be ineffectual, unless made in conformity with its provisions. The policy of the law of Pennsylvania evidently Avas to make all such gifts iiwalid ; and it Avould be a forced and constrained construction to hold that such policy could be avoided and set at naught, and the very intent and language of the act frustrated, because the te-j ator resided and the will avos executed outside of the territorial limits of that State. Suppose a resident of Pennsylvania should pass over the line, and make a will there in violation of this statute. Will this avoid it and set it at naught? If it would, the law of the State Avould be entirely 'moverted and rendered of no avail, and its policy in regard „o such devises and bequests evaded.

The question discussed was the subject of consideration in the case of Chamberlin v. Chamberlin, (43 N. Y., 424); and it was held that the law of the testator’s domicile controls as to the formal requisites essential to the validity of the will, the capacity of the testator and the construction of tho instrument. It was also decided that where the will was executed lawfully, the validity of the bequests will depend upon the law of the domicile of the legatee and of the government to which the fund by its terms is to be transmitted for administration and the particular purposes indicated by tho testator. It was also said by All ex, J., after laying down the foregoing rule : “ Whatever may be the law of Pennsylvania, a testator domiciled in that State cannot establish, by bequests of personalty to citizens or corporations of this State, a charity or trust to be administered here inconsistent with the policy or the laws of this State. A gift by will of a citizen of this State to a charity, or upon a trust to be administered iu a sister State, which would be lawful in this State, the domicile of the donor, would not be sustained if it was not in accordance with the laws of the State in vjhich the fund was to be administered. “Bequests in aid of foreign charities, valid and legal in the place of their existence, will be supported by the courts of the State in which the' bequests are made: (Hill on Trustees, 457.)” Tho learned judge also holds that if tho legatee is authorized to take the legacy, “ it will be sustained, irrespective of the law of the testator’s domicile, subject, however, to this qualification, that if the law of the testator’s domicile in terms forbid bequests for any particular purpose, or in any other way limit the capacity of the testator in tho disposal of his property by will, a gift in contravention of the law of the testator’s domicile would be void everywhere.”

The case cited differs materially in the facts from the one at bar. The devise was to a Pennsylvania corporation, and the will was executed more than one month before the death of the testator ; and hence the act of 1855 already cited had no application. The principles laid down are, however. applicable to the case now considered, and it seems quite clear that the law of the domicile of the legatee, and of the government of the State of Pennsylvania, must prevail. If the will liad been made in Pennsylvania, there would be no question that the law of that State would control. Cau there be any less doubt because it was made in New York ? Clearly not; for the. rule is the same, without regard to the fact that the will was executed out of the State of Pennsylvania. The remarks which we have cited from the opinon expressly uphold this rule, and are directly in point. The position taken by the counsel for some of the defendants, that the ease cited would sustain and not defeat the legacy, is not, we think, upheld.

The terms of the bequest in the case cited, which was particularly involved, are not material to the decision of the case at bar, as the whole question here turns upon the effect of the execution of the will within the thirty days provided for by the act of 1855. While the legacy in the case cited was properly sustained, it by no means follows that it should be upheld in the case at bar. The question is not as to the construction of the terms of the devise, but as to the right to make it at all, in contravention of the statute of Pennsylvania. To maintain that the statute of Pennsylvania has no force in New York, would render the statute ineffective and of no avail in many cases, in violation of the express prohibition which constitutes its very essence. Although the question considered did not distinctly arise in the case cited, yet the principle involved authorized its consideration, and we think it is decisive on the subject in the case at bar.

It is also insisted that the defendant the “ trustees of the general • assembly,” etc., having been chartered by special act before the passage of the act of 1855, its power to take and hold real and personal estate given by its charter cannot be taken away, restricted or limited by a subsequent act, and its power in this respect is not subject to the act of 1855. A completo answer to this position is that the defendant derived no more right to take and hold property than was possessed by individuals, which is always subject to the general laws of the State existing or laws to be thereafter passed in regard to the acquisition and disposition of property. It follows that the bequest, being in contravention of the act of 1855, was void in Pennsylvania, where the legatee has a domicile, and consequently void in Hew York, where the testator resided.

As the conclusion arrived at disposes of the subject, we do not deem it necessary to consider whether the bequest ir question would have been invalid under the act of 1848. Hor is it important, under the views which we have taken, to determine which of the two corporations claiming the legacy would have been entitled thereto if it had been valid.

In regard to the bequest to the Hew York City Bible Society, we concur with the opinion of the General Term, that the statute of 1860 did not affect or restrict the operation of the two months clause contained in section six of the act of 1848: (Le Fevre v. Le Fevre, 59 N. Y., 434.)

It is claimed that the case last cited does not decide the question and is not a binding authority. It is true that in the case cited the legatee was not incorporated under the general law of 1848, but by a special charter. We think this does not aid the position taken by the counsel for the Bible society ; for if section six was applicable to a society with a special charter, there is far stronger reason for holding that it applies to a corporation organized under the general act. It may be added that the question was fully considered in the case cited; and as the reasoning in the opinion is sound, the decision should be followed.

We think that there was no error of the judge upon the trial in the conclusion arrived at, that the sums bequeathed by the void legacies, contained in the fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth articles of the will, and amounting to the.sum of $24,000, belong, as estate undisposed of, to the widow and next of kin of the testator, and that the same should be distributed as intestate property. If the legacies referred to are void, then, if no other provision is made, the disposition must follow the statute of distribution.

It is claimed that the eighteenth article of the will is a residuary clause which declares the disposition to be made of some of these void legacies. By this provision the testator gives and bequeaths “ all the principal left of my estate, after the death of my wife, Amelia Kerr, to the societies, seminaries or institutions, named in the fifth, sixth, seventh, ninth and tenth articles or bequests, to be divided according to the several amounts so bequeathed jpro rata”

It will be seen that this relates to a disposition after the death of the wife of the testator, and not before, and hence the amount of the void legacies in the meantime must remain undisposed of, unless some other provision is made. And even after her death, if these legacies were valid, the bequests would be subject to the act of 1860, and the same would be valid only to the extent of one-half of the estate bequeathed, leaving the other half undisposed of to be distributed among the next of kin of the deceased. This provision only takes effect after the death of the testator’s wife, and hence leaves no express direction as to the disposition of any of the legacies which may be declared to be void. It, therefore, can scarcely be regarded as a residuary clause, in the usual acceptation of that term. According to the position assumed by the plaintiffs, the sums so bequeathed by the void legacies would increase the amount of the widow’s portion, and would be subject to her life estate in the income thereof, and not be payable until after her death. The fifteenth clause, which provides for the widow, bequeaths “ all the net income that may be derived from my estate, after my decease and after the legacies are paid off,” during her life. It was evidently intended by the testator to dispose of a portion of his estate to pay legacies, and then that the widow should take the remainder. The estate was by his will divided into two parts. The first was the legacies, and the.second the provision for his wife. The amount of the former was fixed and definite, and the testator knew exactly what it? would be. This he meant should be first deducted, and. then the balance given to his wife.

The general rule is that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of. But this rule does not apply where the bequest is of a residue of a residue and the first disposition fails. This was held in Beekman v. Bonsor (23 N. Y., 298, 322); and it was there laid down, quoting from the master of the rolls in Skrymsher v. Northcote (2 Swanst., 570): “It seems clear on the authorities that a part of the residue of which the disposition fails will not accrue in augmentation of the remaining parts as a residue of a residue; but, instead of resuming the nature of residue, devolves as undisposed of.” (See also, Downing v. Marshall, 23 N. Y., 382; White v. Howard, 46 id., 144.) In the case at bar the widow took the residue after the payment of the legacies. As some of them are void, another residuum remains; and this she was not entitled to within the rule laid down; and as the estate was disposed of in two parts, and the first was invalid, the second does not pass to the legatee,- but goes to the next of kin. The general rule referred to, that the residuary bequest carries everything with it, is subject to some qualifications, as we have seen; and it is laid down in King v. Woodhull (3 Edw. Ch., 79, 82), as follows : “ That to entitle a residuary legatee to the benefit of a lapsed or void bequest, he must be a legatee of the residue generally, and not partially so; for, where it is manifest, from the express words of the will, that a gift of the residue is confined to the residue of a particular fund or description of property, or to some certain residuum, he will be restricted to what is thus particularly given, since a legatee cannot take more than is fairly within the scope of the gift.” It is also said in substance that to exclude what would fall by lapse or invalid disposition, as it may be supposed that the testator did not intend to die intestate as to any portion of his property, the law requires that he should use words limiting the gift of residue and showing an inten tian to exclude such portions of his estate as may fail to pass.

In the case considered, it is very apparent that the testator’s wife was not a residuary legatee of all the fund, but only partially so, as the devise to her was confined to a fund after a certain amount had been deducted; and it appears by the language of the bequest most manifestly that he did not intend to include any portion of these legacies in the provision for his wife. He assumed that they were valid, and in making no provision for the failure of the legacies, as well as in the provision made for his wife, we must assume, we think, that his intention was that in such a contingency they should pass to the next of kin. Tho language of the two clauses of the will cited plainly indicates that such was his design. The cases arc numerous which sustain the doctrine that whore the language of the will giving the residue is confined to a particular fund or to a certain residuum, it will be restricted accordingly. In Ommaney v. Butcher (Turn. & Russ., 260), the testator, after giving a number of legacies, provided that: “In case there is any money remaining, I should wish it to be given in private charity ; ” and it was held that the general residue of the testator’s personal estate, consisting of household estate, etc., was not comprehended in the residuary clause, which was confined to the residue and articles directed to be sold ; that private charity was an object too indefinite to give the crown jurisdiction, or to enable the court to execute the trust; that the executors having equal legacies could not take beneficially • and that the next of kin were therefore entitled to the general residue, including what was comprehended in the residuary clause. In Bland v. Lamb (2 Jae. & W., 404), it was held that a legacy left to the testator by a relative after the making of the will did not pass under a general disposition. Lord Chancellor Eldon said : “There can be no doubt that a gift of the residue may have a limited operation; although the general doctrine of the court is, that if a person gives all the rest of his personal estate or property,, such a gift will not only pass that which he then lias, but that which may become his property.” In Att’y-Gen. v. Johnstone (Ambler, 577), the testator, after bequeathing a number of legacies, left it with his executors to dispose of “ the small remainder of my personal estate ” in “charity schools in Hamburgh.” The lapsed legacies amounted to £20,000 ; and it was held that the charity schools had no right as residuary legatees. Lord Chancellor Camden said: That he was clear the charity schools have no right under the description of residuary legatees. The rule is very true in general, that the residue takes in lapsed legacies.” # “ But the residuary legatee must be a general legatee, to take anything that does not pass by the will. If the testator had circumscribed and confined the residue, thou the residuary legatee, instead of being a general legatee, becomes a specific legatee.” * * * I look upon the residuary devise to be specific, contingent and conditional • that is, ‘ In case my estate turns out to pay all my other legacies (which it has not) and it should be a little more, then I give that little.’ ” These cases.establish that even in the English courts, which go very far to favor the residuary legatee, and often strain a point to hold that the residuum does pass, to avoid the consequence of its falling to the executor, that it is only where the intention is manifest, that they will sustain a bequest of tins description. In Peay v. Barber (1 Hill Chy, [S. C. R.], 95), a bequest was made by the testator to his wife of one-half of certain personal property and to his sister's children all the rest. The wife died before the testator and the legacy lapsed. It was held that the words “ all the rest and residue of my property ” must be understood as exclusive of that devised; that nothing else of the lapsed legacy but property of this description passed under the residuary bequest; and that the property -devised descended to heirs generally. Erom the eases cited it is entirely -clear that in the interpretation of a residuary clause in a will, or one which it is claimed hears any analogy to it, the court will not only look at the language employed, but the surrounding circum stances, to determine what the intention of the testator was. The whole theory of the will, and the plain intention of the testator, is in conflict with the doctrine contended for; and the testator having died intestate as to the portions of his estate mentioned in the eighteenth clause of his will, except as to five-twenty-sixths, the widow and next of kin are entitled to the same.

It may also be remarked that in order to make the corporations named general residuary legatees, the residue should have been given to them as a class; for a devise or .bequest to several, specifying the proportion of each, is not to be regarded as made to them as a class, but is a gift of a certain portion of the residue to each of them by name. If, for any reason, any one fails, the portion thus failing will not go to increase the other portions of the residuum, as a residue of residue. (2 Redf. on Wills, 119; Skrymsher v. Northcote, 1 Swanst., 570.)

The other questions raised are fully covered by the opinion of the trial court and do not .require examination. Concurring with the views there expressed, as modified by the decision of the General Term, we are unable to discover any ground for reversing the judgment; and the same should be affirmed, with costs in this court of all the parties appearing, to be paid out of the estate.