Holland v. Alcock

The third clause of the testator’s will is in the foliowihg words:

“All the rest, residue and remainder of my estate, I give and bequeath to my said executors, .to be applied by. them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul, and the souls of my family, and also the souls of all others who may be in purgatory.”

The validity of this clause is the question now presented for adjudication. The action is brought by five nieces and a nephew of the testator who claim to be his next of kin and heirs at law and, as such, entitled to his residuary estate in case the disposition thereof, atlempted to be made by the third clause of the will, is adjudged to be invalid. The estate consists wholly of personal property and amounted at the time of the testator’s death, in 1882, to about the sum of' $28,000. By the second clause of his will the testator devised and bequeathed all hjs estate, real and personal, to his executors, in trust for the uses and purposes set forth in the will, which were to pay certain legacies amounting in the aggregate to about $16,500, and to apply the residue as directed in the third clause, before recited. That clause must" therefore be regarded as creating or attempting to create a trust of personal property for the purpose specified. The plaintiffs claim that the trust thus attempted to be created is void ; that as to the residuary estate' the testator died intestate, and that distribution thereof should be made among the next of kin, etc. The defendant Alcock, one of the executors, demurred to the complaint. At Special Term the demurrer was overruled and the plaintiffs had judgment. On appeal to the General Term that judgment was reversed and judgment was rendered in favor of the defendant

Some of 'the points involved in the case now before us were passed upon in the late ease of Gilman v. McArdle ( 90 N. Y. 451 ). In that case the deceased had in her life-time placed in the hands of the defendant a sum of money on his promise to apply it to certain purposes during the life-time of the deceased and of her husband, and after the death of both of them, to pay their funeral expenses, etc., and to expend what should remain in procuring Homan 'Catholic masses to be said for the repose of their souls. This court declined to decide whether a valid trust had been created in respect to tho surplus, there being no ascertained or ascertainable beneficiary who could enforce it, and the .majority of the court expressly reserved its opinion upon that question, disposing of the ease upon the ground that a valid contract inter vivos, to be performed after the death of the promisee, had been established; that there was nothing illegal in the purpose for which the expenditure was ■contracted to he made, and that there was no want of definiteness in the duty assumed by the promisor; and “we held that as there had been no breach of the contract, but the ■promisor was ready and willing to perform, he was entitled, .as against the legal representatives of the promisee, to retain the consideration.

The point upon which the majority of the court in the .case last cited reserved its decision is now again presented. There is no contract inter vivos, hut the will expressly bequeaths the fund in question to the executors, in trust for the purposes therein specified, one of which is to apply the residuary estate to the purpose of Laving prayers offered in a Homan Catholic church for the repose of the souls of the testator, of bis family, and of all others who may he in pur.gatory.

It is claimed that this disposition contains all the clean on ts of a valid trust of personal property; that there are definite and competent trustees; that the purpose of the

The absence of a defined beneficiary is, as a general rule, a fatal objection to any attempt to create a valid trust. It is said by Weight, J., in Levy v. Levy ( 33 N. Y. 107 ), that “ if there is a single postulate of the common law established by an unbroken line of decision, it is that a trust without a certain beneficiary who can claim its enforcement, is void, whether good or bad, wise or unwise.” It is only in regard to the class of trusts known as “ charitable,” that a different rule has ever prevailed in equity in England, and still prevails in some' of our sister States. Whether the English doctrine of charitable uses and trusts prevails in this State will be considered hereafter. In all other cases, the rule as stated by Judge Weight is universally recognized both in law and in equity. It is claimed that the trust now under review is not void according to the general rules of law for want of a defined beneficiary, because the trust is for the purpose of having prayers offered in a Roman Catholic church to be selected by the executors. It is contended that this is in effect a gift to such Roman Catholic church as the executors shall select, inasmuch as the money to be expended for the masses would, according to the usage, be payable to the church or churches where they were to be solemnized, and therefore as soon as the selection is made the designated church or churches will be the beneficiary or beneficiaries, and entitled to the payment; that the trust is

It must be observed that in- the case cited the beneficiaries were confined to Bo man Catholic institutions of a certain class in the city of New York. These were necessarily limited in number. By 1 R. S. 734, § 97, it is provided that a trust power does not cease to be imperative when the grantee has the right to select any and exclude others of the persons designated as the objects of the trust. By section 99 that when the terms of the power import that the estate or fund is to be distributed between the persons designated in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons in exclusion of the others. By section 100 that if the trustee of a power with the right of selection shall die leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons designated as objects of the trust; and by section 101 that where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery. Begarding these provisions as declarations ,of general rules applicable to all trust powers, and governing trusts of personal as well as real property, the decision in Bovvers v. Cassidy in no manner infringes upon the rule that the designation of a beneficiary, entitled to enforce its execution, is essential to the validity of a trust, and the only point as to which the correctness of that decision is open to any doubt, is whether, in fact, the beneficiaries in that case were sufficiently defined and capable of ascertainment to enable a court of equity to enforce the trust in their behalf. The

This discussion has proceeded in answer to the claim that the church or churches, whore the masses were to be solemnized, were the intended objects of the testator’s bounty, and the beneficiaries of the trust; but the correctness of that position is by no means conceded. It is, however, not necessary to discuss it. If the bequest had been of a sum of money to an incorporated Homan Catholic church or churches, duly designated by tlie testator, and authorized by law to receive such bequests for the purpose of the solemnization of masses, a different question would arise. But such is not this case. The bequest is to the executors in trust to be by them applied for the purpose of having prayers offered in any Homan Catholic clmrcli they may select.

It has been argued that the absence of a beneficiary entitled to enforce the trust is not fatal to its existence, where the trustee is competent and willing to execute it, and the purpose is lawful and definite; that it is only' where the trustee resists the enforcement of the trust that the question of the existence of a beneficiary entitled to enforce it arises.

I have not found any case in which this question has been adjudicated, or the point has been made; and it does not seem to be presented on this appeal. The case now before us arises on a demurrer by the defendant Alcock, one of the executors, to the complaint, on the ground that it shows no right in the plaintiffs. The complaint alleges that the defendant Alcock, together with Frederick Smyth, were named as executors in the will; that the defendant Alcock did not qualify and has never acted as executor or as trustee of the alleged trust sought to be created by the third danse, nor participated in any form in carrying out the same; but that his co-executor Frederick Smyth has taken possession of the whole estate as such executor and trustee. Smyth is not a party to this appeal. It comes up on the demurrer of Alcock alone, and there is nothing in the complaint to show

But aside from these considerations I do not think that the validity or invalidity of the trust can depend upon the will of the trustee. If the trust is valid, he can be' compelled to execute it; if invalid, he stands, as to personal property undisposed of by the will, as trustee for the next of kiu, and the equitable interest is vested in them immediately on the death of the testator, subject only to the payment of his debts and the expenses of administration. When a trust is attempted to be created without any beneficiary entitled to demand its enforcement, the trustee would, if the trust property were in his possession, have the power to hold it to his own use without accountability to any one and contrary to the intention of the donor, but for the principle that in such case a resulting trust attaches in favor of whoever would, but for the alleged trust, be equitably entitled to the property. This equitable title cannot on any sound principle be made to depend upon the exercise by the trustee of an election whether he will or will not execute the alleged trust. In such a ease there is no trust in the sense in which the term is used in jurisprudence. There is simply an honorary and imperfect obligation to carry out the wishes of the donor, which the alleged trustee cannot be compelled to perform, and which he has no right to perform, contrary to the wishes of those legally or equitably entitled to' the property, or who have succeeded to the title of the original donor. The existence of a valid trust capable of enforcement is consequently essential to enable one claiming to hold as trustee, to withhold the property from the legal representatives of the alleged donor. A merely nominal trust, in the performance of which no ascertainable person has any interest, and which is to be performed or not as the person to whom the money is given, thinks fit, has never been held to be sufficient for that purpose.

It is contended, however, that charitable uses and trusts

In the case of Bond’s charity, cited above, a license was granted by King Henry VII., in 1508, to the testator’s son and others, to grant lands to support a priest to sing mass, and' -twelve poor men and one woman to say prayers and obsequies for the king, the brothers and sisters of the guild, and for their souls, and especially for the soul of the testator, Thomas Bond, in the then newly-erected chapel at Bablocli. It appears that religions or pious uses were, when the Roman Catholic religion prevailed in England, recognized'as charities.

In 1484, Henry Barton devised to the rector of St. Mary and the churchwardens and their successors, certain lands at a perpetual rent, payable to the guild of Corpus Christi, etc., so that said rector of St. Mary’s, and 1ns successors, or their parish priests, when they should say prayers in the pulpit of the church, should pray for the souls of Richard Barton, the testator’s father, of Dionesia, his mother, and for the souls of their children, and all the faithful deceased, and in case they should neglect to do so for two days after the proper time, that the master and wardens of said guild, etc., should levy a distress upon said lands for twelve pence, by way of penalty, and retain such distress until such prayers should be said.

This property appears to have been afterwards seized by the crown, under the statute of Ckauntries (I Ed. V1.), and

The purposes for which charities were established in England were so numerous and varied, and the learning contained in the books on that subject is so vast, that it Avould be futile to attempt to go into it in detail, or to do more than briefly refer to their history so far as'is necessary to determine whether the English doctrine of charitable uses and trusts, as distinguished from private trusts governed by the general rules of law, still has any place in the jurisprudence of this State.

The statute of 1st Edward YI., a. d. 1547, known as the statute of Chauntries, recited that a great j>art of superstition and errors in Christian religion had been brought into the minds of men by reason of their ignorance of their true and perfect salvation, through the death of Jesus Christ, and by devising vain opinions of purgatory, and masses to be done for those who are departed, which doctrine is maintained by nothing more than by the abuse of Trentalles, Chauntries and other provisions for the continuance of such blindness and ignorance; that the amendment of the same, and converting them to good and godly uses, such as the erection of grammar schools, the education of youth, and better provision for the poor cannot, in the present Parliament, conveniently be done, nor be committed to any person than to the King who, by the advice of his most prudent council, can and will most wisely alter and dispose

The statute of 39 Eliz. a. d. 1597, authorized j)ersons owning estates in fee simple during twenty years next ensuing the passage of the act, by deed enrolled in the high court of chancery, to found hospitals, houses of correction, almshouses etc., to have continuance forever, and place therein a head and members and such number of poor as they pleased ; and such institutions were declared to be corporations, with perpetual succession. It will be observed that this was but a temporary act which gave power only for twenty years next ensuing its passage, to ''found the charities mentioned. This statute also contained a provision entitled “an act to reform deceits and breaches of trust touching lands given to charitable uses,” which recited that divers institutions had been founded, some by the queen and her progenitors, and some by other godly and well-disposed people, for the charitable relief of poor, aged and impotent people, maimed soldiers, schools of learning, orphans, and for other good, charitable and lawful purposes and in

This statute was followed by that of 43 Eliz., ch. 4, “To redress the misemployment of lands, goods, and stocks of money heretofore given to charitable uses.” This act is known as the Statute of Charitable Uses and was at one time, together with that of 39 Eliz. regarded as the foundation of the law of charitable uses and of the jurisdiction of chancery in cases of charities. But the reports of the record commission established in 1819, have disclosed that the jurisdiction had been exercised and charity laws administered by the courts of chancery from a much earlier period. The act, however, throws light upon what were at the time considered and recognized as charitable uses, for they am enumerated in the preamble as follows, viz.: the relief o;i the poor, the maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and schools in universities; the repairs of bridges, ports, havens, causeways, churches, sea banks and highways; the education and preferment of orphans ; the maintenance of houses of correction ; the marriage of poor maidens ; the aid of young tradesmen,, handi-craftsmen and persons decoyed ; the relief or redemption of prisoners or captives ; the aid of poor persons in the payment of taxes.

The act then provides for the issuing of commissions by the lord chancellor of England or the chancellor of the Duchy of Lancaster, and the redress of breaches of trust, as in the statute 39 Eliz.

In this enumeration • of charitable uses there is none which would cover the present ease, and indeed under the statute of chauntries and other statutes prohibiting superstitious uses, it would not have been recognized in England as valid as a charity or otherwise.

The principal cases in this State, in which the doctrine of ’ charitable uses has been discussed, are Williams v. Williams ( 8 N. Y. 525 ); Owens v. Missionary Society (14 Id. 380); Beckman v. Bonsor (23 Id. 298); Downing v. Marshall (23 Id. 366); Levy v. Levy (33 Id. 97); Rose v. Rose Beneficent Asso., 1863 (not reported); Bascom v. Albertson ( 34 N. Y. 584 ); Burrill v. Boardman (43 Id. 254).

These cases were argued by counsel of eminent ability, and in the arguments and opinions display a depth of learning and thoroughness of research which render it useless to

The case of William v. Williams ( 8 N. Y. 525 ), is the leading case in the court of last resort of this State in support of the doctrine that the English law of charitable uses is in force in this State, and it fully supports the proposition that it is. In that case the testator, after making a bequest to an incorporated church, bequeathed the sum of $6,000 to Zophar B. Oakley and other individual trustees, with power to perpetuate their successors, as a perpetual fund for the education of the children of the poor who should be educated in the academy of the village of Huntington, with directions to accumulate the fund up to a certain point and apply the income in perpetuity to the education of the children whose parents’ names were not upon the tax lists.

In Owens v. Missionary Society ( 14 N. Y. 380 ) the testator bequeathed tiie residue of his estate to the. “ Methodist General Missionary Society',” an unincorporated association existing when the will was made and when it took effect in 1834, but which subsequent to the testator’s death became incorporated. In a suit between the incorporated society and the next of kin of the testator, the bequest was held void, and that the next of kin were entitled to the residue. Opinions were delivered by Selden, J., and Benio, J. Judges A. S. Johnson, T. A. Johnson, Hobbabd,

Downing v. Marshall ( 23 N. Y. 366 ) held that a devise and bequest to an unincorporated missionary society were void on the same grounds as in the case of Owens v. Missionary Society.

Up to this time the doctrine of the case of Williams v. Williams, as to the validity of trusts for charities, even in the absence of a definite beneficiary, had been acquiesced in. But in Levy v. Levy ( 33 N. Y. 97 ) it was vigorously assailed by Wbight, J., who discussed the question anew whether the English doctrines of trusts for charitable uses were law in this State. That learned judge expressed a decided opinion that they were not (p. 105, et seq.); that that peculiar system of jurisprudence proceeded in disregard of rules deemed elementary and fundamental in other limitations of property, in upholding indefinite charitable gifts, by the exercise of chancery powers and the royal prerogative; that it was not the exercise of the ordinary jurisdiction of chancery over trusts, but a jurisdiction extended and strengthened by the prerogative of the crown and the statute of 43 Eliz. over public and indefinite uses defined in that statute as charities ; that even in England it had been deemed

After the decision of that ease, the struggle in this court for the overthrow of charitable uses began in the case of Owens v. The Missionary Society ( 14 N. Y. 380 ). The opponents of such trusts had for their justification the repeal in 1788 in this State of all the British Statutes which upheld such trusts in England, and the substitution of a charity system maintained by our statute laws in .the form of corporate charters containing, by legislative enactment, power to receive, hold and administer charitable gifts of every variety known in the practice of civilized communities, and our statute of uses and trusts, defining the trusts which may lawfully be created. This statute has been held binding "on the courts, although of course, it ceases to operate when the Legislature charters a corporation for a charitable purpose, with power to take and-hold property in perpetuity for such purpose. .From the case of Owens v. Missionary Society ( 14 N. Y. 380 ), through the cases of Marshall v. Downing (23 Id. 366); Levy v. Levy (33 Id. 97); Bascom v. Albertson (34 Id. 584); Burrill v. Boardman (43 Id. 254); and Holmes v. Mead, decided in 1873 (52 Id. 332), the struggle was continued, and the announcement definitely made, in the latest of those cases, that the controversy was closed by the adoption of the principles enunciated in the said last mentioned case. In Williams v. Williams, Judge Denio, whose great learning and ability are universally acknowledged, maintained as the basis of his

In Williams v. Williams (supra), in maintaining a gift for pious uses to an incorporated religious society, Judge Denio assigned the reasons which have been universally approved since that time ; and they are summed up by saying, that charitable limitations of property in favor of corporations, competent by statute law to hold them, are valid or invalid on the same grounds as other limitations of property between natural persons, and are referable to the gen

As the result of the foregoing views, the judgment of the supreme court at general term should be reversed, and that of the special term affirmed.

All the judges concurred.