Trustees of Amherst College v. Ritch

45 N.E. 876, 151 N.Y. 282, 1897 N.Y. LEXIS 836

• Court: New York Court of Appeals
• Decided: January 19, 1897
• Status: Published

Opinions

Vann J.

The appellants are of two classes, each hostile to the other and both hostile to the plaintiffs, who, with certain of the defendants, are respondents. One class comprises the executors of the widow and the next of kin, with the exception of Mrs. Beardsley, who unite in claiming that there was a secret trust in favor of the colleges named in the ninth article of the, will, or of beneficiaries to be appointed by Messrs. Bitch, Bulkley and Vaughan, created by the gift of the residuary estate to those gentlemen in connection with their promise to the testator to turn over their legacy to such colleges or beneficiaries; that this trust was void as an evasion of the statute of 1860, or for indefiniteness, or both, except to the extent of the difference between the sum of $2,195,000, specifically given to colleges and hospitals, and one-lialf of the estate after ¡Dayment of debts; that the deed of gift was void as a fraud upon the testator, the twenty colleges, the act of 1860 and the widow and next of kin; that the releases executed by the widow and next of kin were void, because they were procured by fraud, and that hence the executors of the widow and the next of kin are entitled to that part of the residuary estate, which, owing to the partial failure of the secret trust, was not disposed of by the will or codicils, but passed under the Statutes of Descents and Distributions as assets neither devised nor bequeathed.

The other class of appellants includes the residuary legatees and their donees under the deed of gift, who claim that the legacy in the- tenth article was absolute, although made with an expectation on the part of the testator that the residuary legatees would apply it in accordance with what they believed to be Ids wishes; and that, hence, the deed of gift was effective and tiie donees thereunder entitled to receive accordingly. Said donees further claim, for themselves, that if the residuary legatees were guilty of fraud, expiress or implied, in procuring the will and were thereby precluded from taking an absolute title, they held the gift for the benefit of the widow and next of kin, to whom it equitably belonged, and that the law would not fasten upon the fund an equitable obligation or trust to devote it to a pmrpose in violation of the law itself as expressed in the act of 1860 ; that the releases executed by the widow and next of kin to the residuary legatees opierated as transfers, and not only made the original title of the latter compílete, but confirmed the title conferred by them upon the donees under the deed of gift. They also insist that the plaintiffs are estoppied, by encouraging and uniting in a settlement made with the widow and next of kin, from asserting a claim that would render that settlement of no value to those who ported with value in order to make it, and that an adjudication of the surrogate, made in a special proceeding under the Collateral Inheritance Act, is a bar to this action.

The respondents, being the plaintiffs and certain defendants who stand with them, are, with some exceptions, the colleges named in the ninth article of the will. Their claim is that the testator intended that the residuum of his estate should go to those colleges; that he would not have made the gift to the -residuary legatees had he not been assured by them, or in their behalf, that they would thus dispose of their legacy: that, hence, the residuary legatees were under an equitable obligation to so dispose of it; that they had no right to disappoint his belief, based on their promises, which induced him to thus make his will, by disposing of the proporty through the deed of gift, which is, therefore, of no effect; that there was no violation of the statute of 1860 in fact, but, if there was, no one can take advantage of it but the widow and next of kin, who, by their releases, waived all the rights derived from that statute, and, hence, that the settlement made with them inures to the benefit of the colleges named in the ninth article of the will, which thus became entitled to the residuary estate.

1. The first question presented for decision is, what facts may we assume to have been found by the courts below, whether expressed in words or not ? The Code of Oivil Procedure provides that “ the decision of the court or the report of a referee upon the trial of the whole issues of fact may state separately the facts found and the conclusions of law and direct the judgment to be entered thereon; or the court or referee may file a decision stating concisely the grounds upon which the issues have been decided and direct the judgment to be entered thereon.” (Code Civ. Pro. § 1022.) Although the decision by the Special Term and the affirmance by the General Term were general in form, necessarily some facts were found by those courts, even if they are not specified in the record. Otherwise, the burden of deciding questions of fact would be cast upon this court, which has jurisdiction to decide only questions of law. We think that the effect of a decision by the trial court without expressing the facts found is the same as if there had been a general verdict rendered by a jury, and that the same presumptions arise in its support. When a judgment entered upon a verdict has been affirmed by the General Term, this court can look into the evidence only to ascertain whether there were any facts proved upon which the jury could base their verdict. (Hazman v. Hoboken Land & Imp. Co., 50 N. Y. 53-55.) If, upon such examination, the court finds' that there is some evidence to sustain the verdict, and that upon any vieiv of the facts the verdict can be upheld, it will not interfere with the determination of the General Term affirming the judgment, even when it might, if it had the power to determine the questions of fact embraced in the verdict, have reached a conclusion other than that reached by the jury. (Maher v. Cent. Park R. R. Co., 67 N. Y. 52-55.) .Where the affirmance is by an Appellate Division and is unanimous, we have no power to examine the record .even to see if there is any evidence to sustain the verdict. (Szuchy v. Hillside Coal & Iron Co., 150 N. Y. 219-222.) We are of the opinion, therefore, that where the decision of the Special Term does not state the facts found, and the judgment entered thereon has been affirmed by the General Term, upon an appeal to this court, all the facts warranted by the evidence and necessary to support the judgments below, are presumed to have been found. lienee, upon such an appeal, we have no more control over the facts than ive have when specific findings are.made by the Special Term and affirmed by the General Term. This conclusion takes the question as to the fraud alleged to have been practiced by the residuary legatees upon the widow and next of kin in procuring the releases out of the case, for it cannot be said on the record before us that the evidence tending to show fraud is so irresistible as to make the omission to find fraud an error of law. Assuming that there was evidence enough to warrant the inference of fraud, there was also ample evidence to warrant the inference that there ivas no fraud. A question of fact was thus presented which is beyond our power of review. The only ground upon which it is claimed that the alleged fraud was so conclusively proved as not to involve a question of fact, is that the residuary legatees did not state that there was a secret trust in favor of the colleges named in the ninth article of the will, and that the effect of that trust was to vest the hulk of the residuary estate in the widow and next of kin. What are the facts ? The residuary legatees were engaged in settling a lawsuit with hostile parties, toward whom they sustained no fiduciary relation, and who were represented by counsel of the highest standing and ability. Substantially all of the material facts had been disclosed by the evidence taken during the trial, in which both parties to the releases were then engaged. The residuary legatees had been examined at length upon the witness stand by counsel for the widow and next of kin, who had ample opportunity to make full discovery. While they took the position, to which they still adhere, that the gift to them was absolute, that position was not acquiesced, in by the widow and nieces, for their counsel openly claimed and argued in Surrogate’s Court that there was a secret trust, which was invalid, and that their clients were entitled to the residuary estate. While there may have been concealment of opinions, there was no concealment of the facts upon which those opinions were based. The residuary legatees were not bound to volunteer their opinions, even if they then thought there was a secret trust. One who is trying to settle litigation has the right to keep his opinion on the merits to himself. The controversy as to whether there was a secret trust or not, as well as the contest over the probate of the will, was fairly covered by the terms of the releases so far as the parties to those instruments were concerned. They dealt with each other, at arm’s length, as adversary parties, knowing the substantial facts, and they are presumed to have had them in mind when the releases were executed, and to have coverel by the language used all questions to which those facts could give rise. Even if we hold, when "we reach the question, that there was a secret trust, that will not convict the residuary legatees of fraud in claiming the contrary before the surrogate, for one who neither withholds nor misstates the facts cannot be adjudged guilty of fraud simply because the courts finally decide the law to be other than he claimed it to be while engaged in litigation over the subject. Such a rule would make nearly every unsuccessful litigant guilty of fraud. From, this statement it is obvious that there was no such concealment as would require the court, if the trial were before a jury, to direct a verdict on the basis of fraud proved beyond question. Our conclusion is that the executors of the widow and the nieces have no standing upon this appeal; so that the contest is narrowed to the other conflicting claimants, one class resting their claims upon the deed of gift and the releases, and the other upon the will, the secret trust and the releases.

2. The next question in the natural order of .discussion is whether there was a secret trust.

While a testator may make a gift to a legatee 'solely for the purpose of enabling him, if he sees fit, to dispose of it in a particular "way, still, if there is no promise by him, either express or implied, to so dispose of it, and the matter is left wholly to 1ns will and discretion, no secret trust is created, and he may, if he chooses, apply the legacy to his own use. When it clearly appears that no trust was intended, even if it is equally clear that the testator expected that the gift would be applied in accordance with his known wishes, the legatee, if he has. made no promise, and none has been made in his behalf, takes an absolute title and can do what he pleases with the gift. Whatever moral obligation there may be, no legal obligation rests upon him. On the other hand, if the testator is induced either to make a will or not to change one after it is made, by a promise, express or implied, on the part of a legatee that he will devote his legacy to a' certain lawful purpose, a secret trust is created, and equity will compel him to apply property thus obtained in accordance with his promise. (O'Hara v. Dudley, 95 N. Y. 403; Brown v. Lynch, 1 Paige, 147; Dowd v. Tucker, 41 Conn. 197 ; De Laurencel v. De Boom, 48 Cal. 581; Browne v. Browne, 1 H. & J. 430 ; Church v. Ruland, 64 Penn. St. 442; Towles v. Burton, 24 Am. Dec. 409 ; McLellan v. McLean, 2 Head. 684; Russell v. Jackson, 10 Hare, 204; Thynn v. Thynn, 1 Vern. 296 ; Reech v. Kennegal, 1 Ves. Sr. 124 ; Wallgrave v. Tebbs, 2 K. & J. 321; McCormick v. Grogan, L. R. [4 Eng. & Ir. App.] 82.) The trust springs from the intention of the testator and the promise of the legatee. The same rule applies to heirs and next of kin who induce their ancestor or relative not to make a will by promising, in case his property falls to them through intestacy, to dispose of it, or a part of it, in the manner indicated by him. ( Williams v. Fitch, 18 N. Y. 546 ; Grant v. Bradstreet, 87 Me. 583; Gilpatrick v. Glidden, 81 Me. 137.) The rule is founded on the principle that the legacy would not have been given, or intestacy allowed to ensue, unless the ¡promise had been made, and, hence, the person promising is bound in equity to keep it, as to violate it would be fraud. While a promise is essential it need not be expressly / made, for active co-operation or silent acquiescence may have the same effect as an express promise. If a legatee knows what the testator expects of him, and having an opportunity to speak, says nothing, it may be equivalent to a promise, provided the testator acts upon it. Whenever it appears that the testator was prevented from action by the action or silence of a legatee, who knew the facts in time to act or speak, he will not be permitted to apply the legacy to his own use when that would defeat the expectations of the testator. As was said by this court in the O'Hara case (supra): “ It matters little that McCue did not maleo in words a formal and express promise. Everything that he said and everything that he did was full of that interpretation. When the testatrix was told that the legal effect of the will was such that the legatees could divert the fund to their own use, which was a statement of their power, she was told also that she would only have their honor and conscience on which to rely, and answered that she could trust them, which was an assertion of their duty. Where in such cases the legatee even by silent acquiescence encourages the testatrix to make a bequest to him, to be by him applied for the benefit of others, it has all the force and effect of an express promise.” The trust does not act directly upon the will by modifying the gift, for the law requires wills to be wholly in writing, but it acts upon the gift itself as it reaches' the possession of the legatee, or as soon as he is entitled to receive it. The theory is that the will has full effect by passing an absolute legacy to the legatee, and that then equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee, as a trustee ex maleficio, to turn over the gift to them. The law, not the will, fastens the trust upon the fund by requiring the legatee to act in accordance with the instructions of the testator and his own promise. Neither the Statute of Frauds nor the Statute of Wills applies, because the will takes effect as written and proved, but to promote justice and prevent wrong the courts compel the legatee to dispose of liis gift in accordance with equity and good conscience. As was well said in Wallgrave v. Tebbs (supra) :

“ Where a person knowing that a testator, in making a disposition in his favor, intends it to be applied for purposes other than his own benefit, either expressly promises or by silence implies that he will carry the testator’s intention into effect, and the property is left to him upon the faith of that promise or undertaking, it is in effect a case of trust; and in such a case the court will not allow the devisee to set up the Statute of Frauds — or rather the Statute of Wills, by which the Statute of Frauds is now in this respect superseded, and for the reason that the devisee by his conduct has induced the testator to leave him the property; and, as Lord Justice Turner says in liussell v. Jackson, no one can doubt that if the devisee had stated that he would not carry into effect the intentions of the testator, the disposition in his favor would not have been found in the will. But in this the court does not violate the spirit of the statute, but for the same end, namely, prevention of fraud, engrafts the trust on the devise by admitting evidence, which the statute would in terms exclude, in order to prevent a party from applying property to a purpose foreign to that for which he undertook to hold it.”

When these rules are applied to the case before us it can hardly be open to question that there was a secret trust attached to the gift of the residuary legatees. The testator, by the tenth article of his will, created an express trust for the benefit of the colleges named in the ninth. He knew, however, that that trust could not be carried into effect if his widow and nieces tried to prevent it. He, therefore, appealed to their forbearance by means of the first memorandum, in which he speaks of making his will after advice from counsel as to the restrictions imposed by the law of this state in regard to benevolent corporations. He evidently referred to the statute of 1860, and acting upon the belief that it would render the tenth article inoperative, except through their mercy, he begged them “ to pei’mit the provisions of ” his “ will to be carried into effect.” In a few months he became convinced that the mercy of his heirs was a frail reliance, so by liis first codicil he revoked the tenth article and substituted in its place an absolute gift to Messrs. Bulkley and Bitch. Having withdrawn his appeal to the forbearance of his heirs, he next appealed to the honor of his residuary legatees by preparing a second memorandum, in which he said that he had made them such, “in the confidence that thereby” his intentions as expressed in liis will would be carried into effect without litigation on the part of any one. The circumstances show that by his intentions as expressed in his will he meant his intentions as expressed in the tenth article thereof, and that the word “ thereby ” refers to the gift, absolute in form, made by the first codicil. This is made clear by the last sentence of the memorandum, in which he asks the residuary legatees to “ take such .steps by will or otherwise as will protect ” his “ estate against the contingency of the death of either before ” his “ estate is settled and distributed.” If the gift was absolute, as it purported to be, what protection did his estate need in case either of the residuary legatees should die ? Did he not mean that while lie was willing to trust them, he was not willing to trust their heirs, and, hence, wanted the protection of a will? By the third memorandum, made several years later, he assumed that there was an obligation on the part of the residuary legatees to dispose of their gift in accordance with his wishes. This appears on the face of the paper itself, though he was careful not to give directions, but only to make suggestions. They related, however, to liis property and in part to the method of distributing that portion which lie had apparently given to them absolutely. He showed no change of intention when he made the Butler codicil, restoring the express trust as created by the tenth article, nor when he made liis fourth codicil a few days later, renewing the absolute gift and adding Mr. Vaughan as one of the residuary legatees. The final gift, whether absolute in form or expressly in trust, was always to the same end. The changes made emphasize the intention and point to a single object. No satisfactory reason has been given for making those changes, except that at different times he preferred different methods to accomplish the same thing. By every line he ever wrote and by every word he ever spoke, so far as the courts below permit us to hear them, he showed the same persistent, steadfast and unchangeable purpose to benefit the twenty colleges named in the ninth article of the will, except as he may have modified his original purpose by an extension of the trust so as to include the Northwestern University as f indicated in the last memorandum. The will, codicils and memoranda, the letter to Mr. Bitch asking how his residuary estate would go in case of his death, and all the facts, as they are presumed to have been found by the courts below, establish the same fixed and constant purpose. Those facts appear so fully in their chronological order, in the statement annexed to this opinion, that further allusion to them will not now be made.

The intention of the testator being thus clear, the secret trust was completed by the promise made by or on behalf of the residuary legatees. As the gift was to them as tenants in common, a promise that bound all was necessary in order to include each of the three shares. That Mr. Bitch and Mr. Vaughan duly promised appears so conclusively from their conduct, letters and statements to the testator, that we do not regard any further expression of our views upon the subject as necessary. It is, however, strenuously urged that Mr. Bulkley made no promise, and hence that the secret trust did not extend to liis> share of the gift. If he were the only residuary legatee the question would be more serious, but he was not. The trial court found that Messrs. Bitch and Vaughan promised for themselves and for Mr. Bulkley, and the evidence plainly warrants this conclusion. The General Term, in its opinion, went farther and declared that there was an understanding between Mr. Bulkley and the testator to the same effect, but the evidence to sustain this conclusion is meagre, although we do not hold it was insufficient. Assuming, however, that Mr. Bulkley made no promise, still we think that he was bound, under the circumstances, by the promise made in his behalf, and that he cannot profit by the action of his cotenants in making the promise for him, as that would be a fraud. He was not a purchaser; he furnished no consideration ; there was no contract for his benefit; he was in the attitude of accepting’ a gift pure and simple, but that gift was made in reliance upon a promise given in his behalf. Can he violate the promise and fairly take that which came to him solely on account of the promise, even if it was not made or authorized by him? We think not, because his title came through the promise, and by accepting the gift he ratified the promise. He must repudiate the gift or accept the responsibility. While the cases are not uniform, the weight of authority sustains this conclusion. (Hooker v. Axford, 33 Mich. 453 ; Moss v. Cooper, 1 J. & H. 367; Tee v. Ferris, 2 J. & K. 357; In re King’s Estate, L. R. [21 Ir.] 273; O’Hara v. Dudley, supra.) In the case last cited this court said : “ So far, then, as McCue is concerned, he stands in the attitude of having procured and induced the testatrix to make a devise or bequest to himself and his associates by asserting its necessity, and promising faithfully to carry out the charitable purposes for which it was made, and whether his associates knew or promised, or did not, makes no difference where the devise is to them as joint tenants, and all must get their rights through the result accomplished by one.” Although the devise in that case was to joint tenants, the principle that “ all must get their rights through the result- accomplished by one ” is broad and equitable, and should not be limited to the technicality of a joint tenancy as distinguished from a tenancy in common, where, as in this case, the promise was made by two in behalf of themselves and another, and a devise thus obtained to the three. This rule prevents fraud, which is the primary object of the courts in enforcing secret trusts, while any other would promote fraud. We thus reach the conclusion that there was a secret trust that bound all of the residuary legatees.

3. What was the trust ? While at first, by the will, it was expressly for the benefit of the ninth article colleges, after the first codicil, although not so expressed, it was for the benefit of the same. - So far as any writing signed by the testator shows, it always continued so, except as it may have been modified by the private memorandum of March 22, 1889, in relation to the Northwestern University and others. That does not purport to do away with prior instructions, but is in the nature of suggestions to guide under the discretionary ■ clause to withhold or reduce, in the ninth article of the Avill. It is advisory, but not obligatory. There are no words of direction, but all are of opinion, judgment and desire, as if the writer was making a recommendation for consideration, but not necessarily for action. Thus he says: “ It is my judgment,” “I think,” “ I would recommend,” “ I suggest,” and “ I also wish.” If he intended to give directions why did he not embody them in one of the two codicils that he made after the date of the memorandum in question ? But whether the words are regarded as absolute or discretionary, they do not invalidate the original promise, nor do they render the trust indefinite. The promise of the legatees kept pace with the , testator’s instructions and is to be considered in the light of all that transpired, not only on the last occasion, but on all previous occasions. When Mr. Fayerweather handed the memorandum to Mr. Hitch, who knew its contents, his silence under the circumstances was a promise to conform to whatever directions it may have contained, because if he did not intend to comply, it was his duty to say so. If it operates as an extension of the trust, as held by the courts below, and of which no complaint is made by any party to this appeal, still the jnodification is clear and definite and in no way affects the validity of the trust. It acts as a modification simply. We, therefore, have a trust for the benefit of the ninth article colleges, as modified, perhaps, by the last memorandum, with definite beneficiaries each capable of asserting itself as such.

It is, however, insisted that the testator in certain conversations with Mr. Hitch and Mr. Vaughan so modified his instructions, which their implied promise would follow, as to include other institutions of learning that were to be selected by the residuary legatees. If such a modification was made it rendered the trust void for indefiniteness, because it would , be incapable of enforcement through the want of specified beneficiaries who could call upon the executors for performance. There is no conversation with Mr. Bitch, appearing in the record, which compels the conclusion, in view of the action of the courts below, that any modification ivas made by Mr. Fayer weather. A change of intention should appear with the utmost clearness in order to destroy the legal effect of writings signed by the testator and filed for preservation. Such a change will not be sought for in a loose and general" conversation, especially when it does not apjiear in writings upon the subject subsequently made. Some conversations were sworn to by Mr. Vaughan which would justify a finding that instructions were given making the secret trust indefinite, but they would also justify the finding that they were merely instructions for still another codicil, not drawn because death came so soon, the last having been hurriedly made to effect the main purpose, or a suggestion as to a change of existing beneficiaries, or the addition of others to be thereafter specified but not then determined upon. The presumption is that the trial court drew the latter inference; but there is a more radical answer to the claim that the secret trust was made indefinite by conversations with Mr. Vaughan, because the trial court was not bound to believe, and from the record before us is presumed not to have believed, that the alleged conversations ever took place. Mr. Vaughan, although without mercenary interest, was an interested party, under the temptation to so testify as to relieve himself from the obligation to comply with the secret trust and to justify his action in executing the deed of gift. He rested under the imputation of selfishly raising suspicions in the mind of the testator against Mr. Bitch, until he was himself made one of the legatees, when he suddenly became satisfied with Mr. Bitch’s honesty and proclaimed that he was “ all right.” He was not entirely candid either with Mr. Bitch or Mr. Fayer- weather. He told Mr. Hitch on an important occasion that the testator was too ill to be seen, when that served his own purpose, although he himself saw him almost every day on business of the utmost moment, and he did not deliver Mr. Hitch’s honorable and specific letter to Mr. Fayerweather, when he had impliedly undertaken to do so. He did not produce the envelope npon which the memorandum as to a more institutions for benefit ” is said to have been made, until a late day, nor did he swear, upon the trial before the surrogate, to the conversation alleged to have been had with the testator during his last hours. He was contradicted by Miss Joyce, who denied in effect that that conversation took place, and his conduct toward that lady when he shook his fist in her face and said that he would spend the entire estate, together with his own fortune, if necessary, to succeed in the litigation then pending, shows the deep interest that he took in the will and the rights that he claimed under it. There was not such clearness of memory, frankness of disclosure or freedom from interest as to make his testimony conclusive. Under these circumstances the trial court was not bound by Mr. Vaughan’s testimony, and the presumption is that the courts below rejected it so far. as that presumption is necessary to sustain the judgments- that they rendered.

We thus have a secret trust created by the instructions of the testator, and the promise of the legatees based thereon, with definite beneficiaries, and in every respect capable of enforcement, but for the act of 1860, entitled, “ An act relating to wills,” which provides as follows:

“ 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. All laws and parts of laws inconsistent with this act are hereby repealed.” (L. 1860, ch. 360.) The manifest effect of this statute was to arrest the design of Mr. Fayerweather and to prevent it from being carried into effect, at least without the consent of his widow or nieces. The legal title to the residuary gift was still in the legatees, however, for the will stood as proved, and as proved the gift was absolute in form. There was nothing in the will itself to confer an equitable title upon any one. Owing to facts outside of the will, a secret trust for the twenty colleges arose, but their equitable title was interfered with by the statute. The rights of the widow and next of kin, founded on the statute, sprang into being, and an equitable title became vested in them, so that they could call upon the residuary legatees to account for that part of the residuary estate which, by command of the law, Mr. Fayerweather could not give to literary corporations by will so long as he had a wife,

4. The effect of the releases in connection with the statute of 1860 now requires consideration.

There are authorities which hold that the rights arising from such a secret trust as we have been discussing are not testamentary in character, because the trust does not act upon the will, but on the fund after it reaches the hands of the legatees. (Harris v. Horwell, Gilb. Eq. R. 11; Addington v. Cann, 3 Atk. 141; Rookwood's Case, Cro. Eliz. 164; Chester v. Urwick, 23 Beav. 407; In re Boyes, L. R. [26 Ch. Div.] 531; Atty.-General v. Cullen, 14 Irish C. L. R. 137; Olliffe v. Wells, 130 Mass. 221; Hoge v. Hoge, 1 Watts [Pa.], 163 ; In re Keleman, 126 N. Y. 73; Williams v. Fitch, supra.) Founded on these authorities, the argument is made by some of the respondents that the statute does not apply to this case, because the colleges do not claim under the will, or anything found in it, hut on facts wholly outside of it. They insist that the same reason that takes a secret trust away from, the Statute of Wills and of Frauds takes it away from the act of 1860, and that their rights do not spring from the mode of changing title, but out of the duty of those who hold the title. They illustrate their argument by saying that if A. wills B. $10,000, and writes him a letter saying that the legacy is in trust for 0., but the letter is not delivered until after A.’s death, there is no trust; but if the letter is delivered before A. dies and B. promises to perform, there is a trust. Although the will is the same in both cases, in the one B. takes and in the other C., because the former takes from the will and the latter from the trust. The argument is not without force when applied to a trust that does not run foul of a statute. When, however, as in this case, the trust is a manifest evasion of a statute, sound public policy forbids that the testator should be permitted to efieet indirectly that which he could not effect directly, at least until all intervening rights derived from the statute have been lawfully cleared away.. We think that the act of 1860 applies, but to what extent and how it was affected by the releases, we will proceed to consider.

The statute in question is not a mortmain act. The policy of the state upon that subject appears in a few general and many special statutes passed at various times. The Bevised Statutes present an example of the former when they provide 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.” (2 B. S. 57, § 3.) The charters of various corporations illustrate the other class of legislation by limiting the amount they can take by devise or otherwise. (Matter of McGraw, 111 N. Y. 66, 107.) The object of all. these statutes is to “ prevent accumulations of property in the hands of institutions which take no part in the productive activity of the community.” They act upon the power of corporations to take and hold, not on the power of a testator V to give. The authorities relied upon by the appellants are to a great extent judgments pronounced when these statutes, thus expressing the policy of the state against the concentration of wealth in mortua manu, were under consideration by the courts. The decisions under the mortmain acts of England are equally inapplicable, when the difference between those acts and the act of 1860 is borne in mind. That statute is of a different character from any of those mentioned. It does not prevent charitable corporations from taking, but for bids a testator who has a wife, child or parent from giving more than one-half of his estate after the payment of his debts. (Chamberlain v. Chamberlain, 43 N. Y. 424, 440.) It does not prohibit charitable gifts altogether, but only under certain circumstances, to a certain extent and by a certain method. If the gift is not made by will, or if made by will and the testator leaves no surviving relative of the degree named, or it is to charities other than those mentioned, there is no prohibition. It does not compel a testator to leave his property or any part thereof to relatives. It does not prevent him from giving all that he has to charity during his lifetime. It is aimed simply at the giving of an undue proportion to charity by will, when certain near relations have, in the opinion of the legislature, a better claim. As was said by Judge Allen in Chamberlain v. Chamberlain (43 N. Y. 424-440), its object “ was to prevent a person upon whom others standing in near relation had claims, from disappointing their just expectations and disinheriting them from pious or philanthropic motives, and the intent was to include all public objects, whether religious, charitable or literary.” Its theory is not to keep property away from charitable corporations, but to prevent a testator from giving them more than one-lialf of his net estate at the expense of his wife, child or parent. Its sole purpose is to protect those natural objects of his bounty from improvident gifts to their neglect. It does not attempt to prescribe the amount or kind of property that the corporations can hold, or to place any limit upon their corporate powers. Its mandate is addressed to testators, not to corporations, which are mentioned only to partly measure the extent of the command. It points toward no public interest, but toward the prevention of what the legislature regarded as a private wrong. It was passed for the benefit of the persons named in it, not for the benefit of the people at large as a measure of state polity. Indeed the state has no policy against institutions of charity or learning. Throughout its history it has shown a deep interest in promoting such objects and in encouraging its citizens to help them. Aid to educa tion has always been a prominent, feature in its legislation. Never has it repelled and uniformly has it invited the co-operation of individuals and corporations to that end. As was said by this court in a late case, “ It is not against public policy to allow gifts to charitable, benevolent, scientific or educational institutions. The law allows and encourages such gifts and those who make them are commended as the benefactors of their race. Such institutions, dotted all over our land to succor, elevate, educate men and ameliorate their condition, are distinguishing features of our modern civilization.” (Hollis v. Drew Theological Seminary, 95 N. Y. 166-172.)

We are led by this reasoning, based upon an analysis of the statute and a comparison of its provisions with those of mortmain statutes, to the conclusion, which is in substantial accord with the authorities so far as they have been called to om* attention, that only the persons named in the act and those benefited through them, can invoke its protection. The state through its attorney-general cannot by legal proceedings raise the question or prevent the gift from taking effect in accordance with the wishes of the testator. The rights springing from the statute are personal; the same as the rights of a borrower under the Statute of Usury, and they can be waived or relinquished in the same way. (Williams v. Tilt, 36 N. Y. 319, 325; Smith v. Marvin, 27 N. Y. 137, 143.) While the one was passed to protect the family of the testator and the other to protect the estate of the borrower, and both prohibit certain acts, we see no reason why the benefit derived from the prohibition may not be abandoned in the one case the same as in the other. (Endlich’s Interpretation of Statutes, 360.) The command that the gift shall not be “ valid ” is no more imperative than the declaration that the usurious security shall be “ void.” While it has been held that the prohibition of the statute of 1860 may be insisted upon by any person who would derive a benefit therefrom, although not one of those named therein, this simply extends the list of such as have rights to waive or retain at their election. (Harris v. Am. Bible So., 4 Abb. Pr. [N. S.] 421.) The widow and next of kin for whose benefit the statute, as applied to this case, was passed, could, prior to the execution of the releases by them, have asked the courts to enforce it, and award them their equitable rights against the residuary legatees as their trustees. Mo one else could set the courts in motion or the statute in operation. The residuary legatees could not, either in their own interest or in the interest of those to whom they had assumed to give nearly one-half of the estate left by the testator, in violation of their promise to him and the secret trust resulting therefrom. That would make the statute an aid to fraud, and would defeat both its own purpose and that of the testator. (Ryan v. Dox, 34 N. Y. 307, 312.) The donees under the deed of gift are in no better position than the donors, for they stand in the same shoes. There was nothing, therefore, to prevent the widow and next of kin from reviving the secret trust by settling with the trustees and canceling their own claims. Whether they did so or not depends upon the nature of the releases, which were of two kinds, one preliminary, the other permanent, but both having the same object. The first, after withdrawing all objections to the probate of the will, contains a covenant not to sue for a construction of the will, or to set the will aside and not to make any claim upon the residuary legatees, as such, or as executors. It also contains an agreement to “ execute a general release of all claims,” both to the executors and their donees, under the deed of gift, as well as to Messrs. Bulkley, Hitch and Vaughan individually.

The second, which was executed after payment of the consideration provided for by the first, runs to the persons last named, as executors, trustees, individuals, and as representatives of the donees under the deed of gift, and, after reciting that the amount paid “ is in compromise and full settlement of any and all contests "* * * of the will of said Daniel B. Fayerweather, or concerning his estate,” -each covenantor says I have “remised, released and forever discharged, and by these presents do for myself and for my heirs, administrators and executors, remise, release and forever discharge,” the said persons in their said several capacities^ “ and also the said donees ” mentioned in the deed of gift, “ of and from all and all manner of action and actions, canse and canses of action, suits, debts, dues, sums of money, claim and demands whatsoever, in law or in equity, which against the said persons or corporations, or any of them. I ever had, or now have, or which I or my heirs, executors or administrators hereinafter shall, can or may have, for, upon or by reason of any matter, cause or thing whatsoever.”

Two theories are pressed upon our attention as to the effect of these instruments. One is that they operate not only as releases, but also as transfers, and the other that they are releases pure and simple. The theory of the donees under the deed of gift that either paper is an assignment seems to be an afterthought, for it is not set up in their answers and is said not to have been suggested before either of the courts below. The answers deny the facts out of which a resulting interest for the widow and nieces arises, and the most of them allege affirmatively that “ said Bitch, Bulkley and Vaughan were and are absolute devisees and legatees in their own right, as individuals, of the entire residuary estate of said Mr. Fayer-weather, and could dispose of the same as they saw fit; that the deed of gift mentioned in the complaint was duly made, executed and delivered, and is a valid instrument, and in fact and in law passed to the various persons and institutions named therein all that said Bulkley, Bitch and Vaughan took as aforesaid as absolute devisees and legatees.” While reviewing courts have power on appeal to so amend the pleadings as to conform to the proofs in order to affirm a judgment, no such power exists for the purpose of reversing a judgment. (Volkening v. De Graaf, 81 N. Y. 268-272.) An analysis of the instruments of release, which are quite full and formal, as releases, shows that they contain no word ordinarily used to effect an assignment or transfer. The first, which is operative without the second, contains no word that is ever used for that purpose, when the connection in which it appears is taken into account. On the other hand, its language is precisely adapted to effect a settlement of the litigation pending and threatened when it was executed, by terminating the contest over the will and providing that no other contest for any purpose should be begun by those signing the paper. The situation then was that the legal title to the residuary estate was in Messrs. Bulkley, Bitch and Vaughan, and that by virtue of the secret trust and the act of 1860, the widow and next of kin had the right to call upon those gentlemen to account for the residuary estate, or, in other words, to bring a suit in equity against them as trustees ex maleficio for an accounting. The words used in the first paper, therefore, were fit and proper to waive and extinguish the right of the widow and next of kin to bring such a suit in equity, hut were neither fit nor proper, nor can they by any reasonable construction be said to have the effect to transfer or assign anything to any one. The concluding words corroborate this theory, for they are a promise “ to execute a general release of all claims ” to the executors and to their donees, but not to transfer anything to either. While the word “ release ” is sometimes used in conveyancing to transfer a title, its general meaning is to surrender a right or to discharge a liability, and when it is used in connection with the word “ claims,” as it is in the paper under consideration, it never has any other meaning than that of waiver, surrender or relinquishment. No right of action can pass by a release of all causes of action.

Since the first paper was effective as a release, and as a release only, all the rights springing from it came into existence at once upon its execution and delivery, and could not be changed or cut down by any paper subsequently executed by the widow and nieces. They had extinguished their claims forever, and the agreement to execute a general release did not permit, at least as to third parties whose rights had intervened, the insertion of words therein changing, or purporting to change, the effect of the first instrument, and we do not think that any attempt was made to do so. The second paper was “ in compromise and full settlement ” of all contests connected with the will or concerning the estate. That was the object of the paper as stated in connection with the consideration, which was not meritorious as to the donees under the deed of gift, but was furnished, indirectly, by the ninth article colleges. In order to effect this object the releasors “ remised, released and forever discharged ” the persons and corporations named. But what do they remise, release and discharge them from, for they do not remise or release any property “ to ” any one, as is usual when a transfer is made ? The answer is found in these words of the instrument, viz.: “ Of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, claims and demands whatsoever in law or in equity,” &c. So far as the intention of the parties to these writings is a question of fact, or is at all dependent on extrinsic facts subject to opposing inferences, it is presumed to have been found in favor of the respondents. Do the parties to a full and formal instrument intend to assign when they use no word importing an assignment ? Is it probable that there was an intention to assign- anything to the same persons in four different capacities, as individuals, executors, trustees and as representatives of the donees ? How could such an assignment be enforced ? A release, however, to them in all those capacities was precisely what, they needed in order to be fully protected. “ In a struggle between the heir or trustees whom the testator obviously did not intend to benefit, and a charity which he confessedly designed to endow, a court of equity will lend its aid to the extent of its legitimate power to uphold the devise and to effectuate the laudable and meritorious purpose of the testator.” (M’Cartee v. Orphan Asylum So., 9 Cow. 437-442.) We think that both of these papers were intended by the parties thereto, at the time of their execution, as releases of claims in the ordinary sense of those words, and not in any sense as assignments or transfers. (Colton v. Field, 131 Ill. 398; Crum v. Sawyer, 132 Ill. 443.)

But, aside from these considerations, and upon the assumption that the releases operate as transfers, how does the matter stand % Messrs. Bulkley, Bitch and Vaughan were trustees in two capacities with reference to the same fund, one, however, subordinate to the other. They were trustees, as we have seen, for the benefit of the ninth article colleges under the secret trust; and, owing to the statute of 1860, they were also trustees for the widow and next of kin, and the latter trust was paramount to the former. If, therefore, these gentlemen bought the rights of the widow and next of kin, for whose benefit did they take them? Hot for their own, nor for the benefit of their donees, who stood in no better position, but for the benefit of the twenty colleges. (Torrey v. Bank of Orleans, 9 Paige, 649; Fulton v. Whitney, 66 N. Y. 548.) Under no circumstances is a trustee allowed to set up a title adverse to his cestui que trust. (Perry on Trusts, § 433; Lewin on Trusts, p. 285.) The paramount trust having been bought in by the trustees, the other trust then became effective. Unless this position is true, a trustee may purchase outstanding titles against his trust estate, for his own benefit, and' to the injury of the cestui que trust, and thus speculate with the subject of his trust.

We are of the opinion, therefore, that, whether the residuary legatees, by the releases, extinguished or acquired the rights of the widow and next of kin, the result is the same. Upon either theory the widow and nieces had placed themselves in such a position, by their instruments of release, perhaps, without foreseeing all the consequences, that they could not demand of the residuary legatees, as trustees, their equitable rights, and, therefore, the statute of 1860 at once ceased to apply. (Harbeck v. Pupin, 145 N. Y. 70, 77.) It became as inoperative as if the widow had died before the testator. All persons for whose benefit the statute was passed having waived their rights, the result was the same as if it had never had an existence. The donees under the deed of gift had no greater rights than they would have had if there had been no widow to set the statute in motion. As the statutory claim of the widow and next of kin was all that could lawfully prevent the execution of the secret trust) when they voluntarily abandoned that claim, it became the duty of the residuary legatees, as trustees, to carry out the testator’s instructions in accordance with the promise made to him. Whatever interest they acquired by virtue of the releases inured to the benefit of the respondents, who thus stand before the court entitled to the fund in controversy, unless they are estopped in equity, by their conduct, or at law, by a judgment, from asserting the claim presented.

5. The claim that there is an equitable estoppel rests mainly upon the allegation that the respondents kept silent concerning their intentions while promoting and aiding the settlement with the widow and next of kin. So far as this depends upon a ques: tion of fact, the final decision has already passed against the appellants by the united action of the courts below. The ninth article colleges had no connection with the making of the deed of gift or the instruments of March 5th, 1891. After these agreements of settlement had been executed the consent of those colleges was asked, not to the settlement, but to postpone the payment of their specific legacies “ to the payment of the amount ” that the widow and next of kin had agreed to accept. This is all they were asked to consent to and all that they did consent to, as a careful reading of the instrument signed by them will show. They did not abandon any claim that they might make against the estate other than as thus specified. The effect was simply that the respondents could not claim that the executors wrongfully paid out the $310,000, and we see no other element of estoppel against them arising from the facts. The claim of the residuary legatees that, owing to the instrument of “ consent,” they have paid a large proportion of the specific legacies to the twenty colleges, has no bearing, because they could not make a commercial use of the discretion confided to them by the ninth article of the will with reference to paying or withholding the specific legacies therein given. They were bound to exercise that discretion according to their honest judgment and not to make it the subject of barter. Bo payment was made to the respondents except such as it is conceded they were entitled to receive. Moreover, it is unreasonable to believe that they were consenting to surrender and abandon $305,000, being the difference between $2,195,000, the aggregate amount of the specific legacies to colleges and hospitals, and $2,500,000, being one-half of the conceded value of the estate at the time of the testator’s death. When the paper signed by them is considered in the light of such facts only as, according to the decisions of the courts below, they are presumed to have known at the time, we think that it should be construed as a consent to the payment of the money and not to the settlement as such.

6. The only point remaining that requires the expression of consideration is whether the adjudication by the surrogate in proceedings under the Collateral Inheritance Act is a bar to this action.

An appraiser was appointed who, after giving notice to all parties interested, reported, among other things, that he was “ not satisfied from the evidence submitted to report in favor of the claim that decedent’s residuary property is charged with a trust in favor of Hamilton College and other corporations,” and he, therefore, concluded that the property passed as provided by the will and codicils as proved. Upon this report an order was made by the surrogate that the testator bequeathed the sum of $717,398.69 to each of the three residuary legatees.

This was a special proceeding instituted by the comptroller of the city and county of Hew York with the sole object of ascertaining what amount of property, passing under Mr. Fayerweather’s will, was subject to taxation and to fix the amount of the tax. The decree of the surrogate 'should be construed solely with reference to that object and, as thus construed, the adjudication was that, for the purposes of taxation under the act in question, a certain amount of property passed to the residuary legatees under the will. Legitimate inquiry necessarily stopped at that point, for it was immaterial, so far as that statute was concerned, whether the fund became impressed with a trust after it reached the residuary legatees, as the tax would be fhe same whether it did or not. They took the legal title, as we have held, and hence their legacy was subject to taxation without reference to what it became their duty to do with it. The adjudication was necessarily limited to the subject of taxation, and if conclusive at all as a bar, it was not conclusive upon the rights of the parties arising from matters outside of the will. The surrogate was acting simply as an assessing and taxing officer, and represented the state for those purposes. (Matter of Wolfe, 137 N. Y. 205, 211.) As was said by this court in The Matter of Ullmann (137 N. Y. 403, 407): “ Every officer charged with the duty of executing the taxing power, whether it be a surrogate or a town assessor, must necessarily decide, in a judicial capacity, important questions of law in order to perform the duties of his office. Ordinarily, such decisions do not, like judgments in actions, conclude the parties as to the same question in subsequent proceedings instituted for some other purpose, although in all such proceedings for the assessment of the tax it ought to, and, doubtless, would, until reversed and set aside.” We think this foreshadowed the correct rule, and that the adjudication of the surrogate was binding upon the question of taxation only.

We thus reach the final conclusion that all obstacles to the enforcement of the secret trust were lawfully removed, and that it is the duty of the courts to give full effect to that trust in accordance with the intention of the testator and the promise of his residuary legatees. In announcing this result, which is the nearest approach to justice that we are able to make, it is a satisfaction to believe that the vast fortune involved will be distributed in accordance with the controlling thought and noble purpose of the man who made it.

The judgment should be affirmed, with costs to all parties appearing by separate attorneys payable out of the estate.