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Driscoll v. Hewlett

132 A.D. 125 Court Second Department, Decision date 1909-04-30 English

Delivered by Miller, J.:

Contents

Majority

p. 125
William J. Driscoll and Others, Respondents, v. Whitfield C. Hewlett, as Executor, etc., of Thomas Driscoll, Deceased, and The Rector, Church Wardens and Vestrymen of Trinity Church, Rockaway, in the County of Queens, Appellants.
Second Department,
April 30, 1909.

Headnote

Trust — bequest to religious corporation to apply income to care of burial lot—trust period not limited to two lives.
A conveyance of lands to a religious corporation in trust to apply the income to the care of the testator’s burial lot is authorized by section 7 of chapter 723 of the Laws of 1895.
The duration of such trust need not be measured by lives in being
Chapter 701 of the Laws of 1893, relating to gifts for public charitable purposes, has no application to a gift to a religious corporation in trust to apply the income to the testator’s burial lot.
Hirschbekg, P. J., and Rich,. J., dissented.
Appeal by the defendants, Whitfield C. Hewlett, as executor,' etc., and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of
p. 126
Nassau on the 1.6th..day of January, 1909, Upon the decision of the court rendered after a trial at the Nassau Special Term.
John Lyon, for the appellant Hewlett.
Albert H. Seabury, for the appellants, Rector, etc., of Trinity Church.
John E. Walker, for the respondents.

This appeal involves the validity of the lattempted devise and bequest of the testator’s residuary estate to a religious corporation in trust to apply the income to the care of his burial lot.,

The learned trial justice held that the, residuary clause was void for offending the statute against perpetuities.[1] In the absence of some statute authorizing such a: trust, the attempt to create it was doubtless futile. The statute relating to gifts for charitable purposes (Laws of 1893, chap. 701)[2] has no application, as the care: of the testator’s burial lot is not a charitable use; However, there is a statute which in terms authorizes the creation of just such a, trust as was attempted in this case.' (Rel. Corp. Law [Laws of 1895, chap. 723], §,7.) That statute provides that a religions corporation may take and hold real property for the purposes of a cemetery and “ may take and hold any property granted, given,, devised or bequeathed to it in trust to apply the same or the income or proceeds thereof, under the direction of the trustees of the corporation, for the improvement or embellishment of such cemetery or any lot therein, include ing the erection, repair, preservation or removal of tombs, monuments, gravestones, fences, railings or other erections,' or the planting or cultivation of trees, shrubs, plants or flowers in or around any such cemetery or cemetery lots.” In the absence of authority it would seem too plain to admit of argument that that statute was intended to authorize the doing of precisely what the testator attempted to do in this case, but authority is not wanting. (First Presbyterian Church v. McKallor, 35 App. Div. 98 ; Hartson v. Elden, 50 N. J. Eq. 522 ; Moore's Executor v. Moore, Id. 554 ;

* See Real Prop. Law (Laws of 1896, chap. 547), § 32 ; Pers. Prop. Law (Laws of 1897, chap. 417), § 2.— [Rep.

† † Am, by Laws of 1901, chap. 291.— [Rep.

p. 127
Iglehart v. Iglehart, 204 U. S. 478 ; and see Gates v. White, 139 Mass. 353 ; Green v. Hogan, 153 id. 462 ; Morse v. Natick, 176 id. 510.) The statute in question was a re-enactment of chapter 198 of the Laws of 1884, with slight verbal changes, the principal change being the omission of the following words at the end of the paragraph or section in question: “ Or for improving the said premises in any other manner or form consistent with the design and purpose of this act, according to the terms of such grant, donation or bequest.” Words similar to the words “according to the terms'of such grant, donation or bequest ” are found in the statutes construed in the Iglehart, Moore and Harison Cases (supra), and the McKallor Case was decided under the act of 1884. The learned trial justice thought that the omission of those words indicated an intention on the part of the Legislature to change the law, and, while authorizing a trust for the purposes specified, to require that the trust should not continue beyond two lives in being. We are unable to discern such a purpose. The words omitted appear to be surplus-age, for, obviously, the.'trustees must take and hold “ according to the terms of such grant, donation or bequest,” if at all. The act of 1895 was a part of a revision, and certainly a purpose to change the law could not be inferred from the omission of such words. If the Legislature intended, while authorizing such a trust, to make the statute against perpetuities applicable to it, it would not have left its purpose to be inferred from the omission of needless words having no reference whatever to the point. Every man has the right, subject to the law, to dispose of his property as he pleases, and we must determine the validity of the attempted disposition in this case without regard to what we may think of its propriety.

The judgment is reversed and a new trial granted, costs to abide the event.

Woodward and Jenks, JJ., concurred; Hirsohberg, P. J., and Eich, J., dissented.

Judgment reversed and new trial granted, costs to abide the event.

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