Power v. Cassidy , 23 N.Y. Sup. Ct. 294 ( 1878 )

Potter, J.:

This is an appeal from a judgment of this court at Special Term. Tbe action was brought by plaintiff individually and as executrix, to obtain a construction of tbe will of John H. Power, deceased who was tbe husband of tbe plaintiff" and a determination of this court upon that portion of tbe will contained in its residuary clause. Tbe court at Special Term adjudged tbe will valid, and that by tbe will tbe real estate of tbe testator was converted into personalty. Tbe plaintiff appeals from tbe judgment declaring that tbe devise to tbe Roman Catholic societies, charities, schools, etc., was valid, and tbe defendant Rice from so much of tbe judgment as declares tbe conversion into personalty. There is also an appeal from tbe order making such charities, etc., parties defendant in tbe action.

Tbe principal question in this case is whether tbe devise of one-third of tbe residue of tbe testator’s estate, which consisted of both real and personal property, to his executors, to be divided by them among such Roman Catholic charities, institutions, schools or churches in tbe city of New York, as a majority of tbe executrix and executors shall decide, and in such proportion as they may think proper, is valid under tbe statute of uses and trusts or powers in trust.

Tbe estate and subject given, and tbe persons named as trustees, are well-defined, certain, and therefore free from difficulty. Tbe question arises from the uncertainty of tbe beneficiaries. The case of Williams v. Williams (4 Seld., 525), which is cited upon this point, has been modified and limited at least in respect to several dicta contained in it. "We think the law is definitely settled by the cases reported since the case of Williams v. Williams, that a trust for undefined beneficiaries is void, however certain the trustees may be, and though the estate vests in the trustees at' once upon, tbe death of the testator, and notwithstanding the devise or bequest was for charitable, religious or public uses. (Bascom v. Albertson, 34 N. Y., 584, 592.) There can be no trusts of realty except such as are permitted by the Revised Statutes. (1 R. S., 727, § 45 ; id., 728, § 55 ; Holmes, Ex’r, v. Mead, 52 N. Y., 332; Dillaye et al. v. Greenough, 45 id., 438 ; Levy v. Levy, 33 id., 97.)

The general rule in relation to the necessary degree of certainty as to beneficiaries under a valid trust, is stated in Story’s Eq. Jur., as follows: “If, therefore, a trust be clearly created in a party, but the terms by which it is created are so vague and indefinite that courts of equity cannot clearly ascertain either its objects or the persons who are to take, then the trust will be held entirely to fail, and the property will fall into the general funds of the author of the trust.” (2 Story’s Eq. Jur. (10th ed.), § 979, a; Wheeler v. Smith, 9 How. [U. S.], 55, 79.) In Wright v. Atkins (Turner & Rus., 157), Lord EldoN said, in order to determine whether a trust of this sort is a trust which a court of equity will interfere with, it is a matter of observation and authority that the object must be as certain as the subject.

The trust must be of a such a nature that if the trustee should decease or refuse to act, the court itself can execute the trust. (Morice v. The Bishop of Durham, 10 Vesey, 521.) Under this rule a provision in a will directing the executors to devote the avails of certain real estate, together with any residue, to such charitable and educational objects and purposes, as to them might seem proper and just, is invalid. (Adams v. Perry, 43 N. Y., 490; Morice v. The Bishop of Durham, 10 Vesey, 522.) So a power of appointment to give or devise property, “ among such benevolent, religious or charitable institutions as she may think proper,” hold void, because vague and indefinite. (Norris v. Thompson’s Exr. 4 C. E. Green [N. J.] Rep., 307.) But in order to satisfy the rule above stated it is not necessary that the beneficiaries or cestui que trusts be named; any designations or descriptions by which they be identified or determined will answer the rule. . It is entirely proper, not to say common, to resort to parol proof or proof aliunde the will, to identify or ascertain the beneficiaries, legatees or devisees. (Lefevre Ex. v. Lefevre, 59 N. Y., 434.) It is not necessary or material that the beneficiary be definitively ascertained and known at the date of the will, or even at the death of the testator. If the gift is to a well defined class, which is capable of being ascertained to a certainty, when the right to receive it accrues, it is sufficient. (Holmes v. Mead, 52 N. Y., 332, 343.) A devise to trustees to pay the yearly income of lands to the sister of the testator for her life, and after her decease to divide the same among the partners of the testator who should be in partnership with the sister at her decease, or to whom she had disposed of her business, was held a good devise to the persons to whom she disposed of the business when ascertained. (Stubbs v. Sargon, 3 Myl. & C., 507.)

Hoey v. Kenny (25 Barb., 396), was a devise of a life estate to the wife, and to be by her distributed and divided among the testator’s relatives in such shares as she saw fit.

It was proved upon the trial that there are and were numerous Roman Catholic charities, churches, etc., existing in the city of New York, duly incorporated and authorized to take devises and bequests, and these were the classes of beneficiaries named in the will, and from which the executors were to select the objects or corporations which should receive the testator’s bounty.

In the case of Williams v. Williams (4 Selden, supra), it was held that where the beneficiaries were not more definite and specific than the children of the poor of Huntington it was sufficiently certain. I do not understand that this practical application of the rule in quesion has been overruled or condemned by subsequent cases in the court of last resort. If so, it has escaped my attention ; it is some of the principles in the abstract enunciated by Judge DeNIO, in that case, which had been disapproved by that court in later cases. (Bascom v. Albertson, 34 N. Y., 584; Adams et al. v. Perry, 43 id., 487; Holmes v. Mead, 52 id., 337.) But in these cases, while condemning some of the propositions enunciated in Williams v. Williams (supra), the court declared that trusts, which indicate specific and ascertainable classes as the beneficiaries of the trust, are valid. (See Bascom v. Albertson, 592.)

If the beneficiaries are defined and capable of being ascertained with certainty, the rule in relation to certainty of beneficiary is satisfied. (Holmes v. Mead, supra, at p. 343.) The incorporated Roman Catholic churches, etc., may be easily ascertained by a reference to the public records kept m the State or city. When they are found, that is the end of the inquiry as to the existence of the beneficiary.

In the case of Williams v. Williams (supra), and many other cases, the inquiry is much more laborious, and the facts oftentimes much more difficult of ascertainment and determination; for instance, to ascertain in a community the names of the children, their parents, and whether such parents are rich or poor, imposes great labor, requiring a large amount of time with careful and judicious discrimination. In the case under consideration a search for a short time among the office records would discover all the corporations of the class specified in the will, and require nothing further of the executors than to select the particular corporation which should partake of the bounty, and the sum it should take. This principle is confirmed and illustrated by various provisions of the Revised Statutes in relation to powers. Indeed the provisions of the will under consideration, if it were not for the alleged conversion of the real into personal, and the fact that the estate consists of both real and personal property, might well be treated as a special power in tr.ust, because it authorizes a disposition to be made to a class. (Sec. 95, m. p. 734, 1 R. S.) Where the disposition is directed to be made to several persons, without specification of the share to each, all shall be entitled to receive alike. (Section 98.) But where it is left to the trustees to select, he may allot the whole to one or more of the cestui que trusts. (Section 99.) And if the trustee shall die before execution of the power, the execution shall be decreed in equity for the equal benefit of all the beneficiarios. (Section 100.) Wc are brought to the conclusion that the beneficiaries are sufficiently designated to answer the rule in that regard. I do not think the trust invalid because the selection by the trustee of the beneficiaries was not limited in terms to incorporated bodies.. Only incorporated bodies can take, and it is not to be presumed that the testator intended, nor that the trustees would attempt, to give to those who could not take, and the court would restrain or restore a gift by the executors to an unincorporated beneficiary. A devise to a trustee to distribute and divide the residue of an estate to the relatives of the testator was held good, though some of the relatives were aliens and could not take. (Hoey v. Kenny, 25 Barb., 396.) The distribution iu this case has been made among corporations who are competent to take under the devise, and are the parties to the record and judgment. But it is insisted, and we think correctly, that there is no proof in the case that there are other Catholic institutions in the city of New York and not incorporated.

I think there can be no question that the selection of these objects of the bounty was made in conformity to the will and the law. Some question was made m relation to the nature of the estate, whether the real was converted into personal estate by the will and if so, what the ultimate rights of the widow in the residue, and the mode of providing and assuring the payment of the annuity bequeathed to her would be. The executors are authorized to sell all property of the testator, and with the proceeds of the sale, or the income thereof, to raise an annuity of $8,000 for the wife of the testator and the general legacies ; and in a subsequent portion of the will, in which he appoints the executors and trustees, he authorizes them, or the survivor of them, to sell all of his estate at such time as they should deem it proper, with the exception of the unfinished house upon Fifth avenue, which they are directed to finish and sell at once. He, moreover, directs a division of the residue, after paying the debts, legacies and the annuity into three parts, one of which is, as we have seen, is to be divided among the cestui que trusts, limited only by the number of incorporated Catholic institutions and the discretion of the trustees. The time, but not the _/aci, of selling the real estate, was left to the trustees. It is manifest the testator intended the real should be converted into personal property. (Dodge v. Pond, 23 N. Y., 69; Arnold v. Gilbert, 5 Barb., 190.) I think the holding of the court below, that the widow took one-third of the residue, including the investment to produce the annuity, is in entire accord with the provisions of the will and the intention of the testator. This conclusion effectually disposes of the appeal from the order bringing in certain Roman Catholic institutions as parties defendants.

The decree should be affirmed with costs to be paid to the executor Cassidy and the Roman Catholic institutions named in the order as defendants, out of the one-third of the residue devised to the plaintiff and to defendant Rice, respectively, in equal proportions.

INGALLS, P. J. (with some hesitation), concurred.

Daniels, J. :

Whether the devise and bequest of the third of the testator’s estate to his executors and executrix, to be divided by them among such Roman Catholic institutions, schools, or churches, in the city of New York as a majority might decide upon, and in such proportions as they should think proper, was sufficiently certain to constitute a valid disposition of this interest in the estate, is certainly a point attended with very great doubt. It was not sufficiently definite to be capable of being executed by the court, if the executors failed to exercise the discretion intended to be vested in them. And if that be the test, as it was intimated to be in Holmes v. Mead (52 N. Y., 332, 334), and substantially held to be in Morris v. Thompson (4 C. E. Green [N. J.], 307), then this interest has not been legally disposed of by the will. But the learned judge, before whom the cause was tried at Special Term, has fortified an adverse conclusion to this, by an elaborate and able opinion, and that has been followed in a similar manner by Mr. Justice Potter, after hearing the argument made in support of the appeal. The point presented is important as well as interesting, and the parties affected by it will not be satisfied without obtaining upon it the judgment of the last tribunal to which it can be taken. Under these circumstances, and for the purpose of facilitating the early as well as final disposition of the case, the conclusion of these opinions will be adopted without any further discussion of the point, and that will lead to the present affirmance of the judgment.-

Decree affirmed,