Riker v. Leo

In this action the plaintiff seeks to have it determined whether, under the will of the decedent, the defendant Leo, or the defendant “ The North American Belief Society for the Indigent Jews in Jerusalem, Palestine,” is entitled to the capital of a certain trust fund of $50,000.

It was claimed by each, and, thus far in the court below, the society has been successful. The testator left the fund in

The defendant Leo, appellant here, is the only child of testator’s niece, Joehebed. The respondent society claims to be entitled to the fund, as being a responsible corporation, having a permanent fund, established by its charter, the interest of which is to be u ¡annually applied, to the relief of indigent Jems in Jerusalem, PalestineAt the time of the testator’s death, in 1851, this society had been in existence for about four years. He was then. its president, and was one of its incorporators. It was found that no corporation, other than this.-society, existed in Hew York city, at the time of the death of testator’s nephew, which -could make any claim to be entitled to the fund; and as to its claim, the executors did not. think it could legally perform the duties required by the testament.

The question of the right of the society to take this fund is invested with such difficulties as, in my opinion, seem to be insurmountable. Though the clauses under consideration are not written with much carefulness of expression, there is no difficulty in understanding the testator’s intentions. They are clear enough, whether with regard to the benevolent purpose, or with regard to the event of its failure, by reason

- The testator has here constituted a trust with regard to the fund, by limiting its use to certain prescribed purposes. The gift is not absolute, but is qualified, by imposing upon the taker the performance of certain duties through the means of the income from the fund. "We caimot free the bequest from the conditions imposed upon its use without wholly frustrating the testator’s purpose. The “'desire,” which he expresses, has here the force of a command, because it expresses the object the testator had in view when making the bequest. It is very clear that where the donee of property is “ desired,” or “ requested ” by the testator to dispose of that property in favor of others, those words are imperative and.their use will

It may be admitted that the fact that this society may not be the particular donee intended hy testator will not control the legal effect of Iris language; if the society can legally claim the gift, because of a legal capacity to effectuate the benevolent trust. The finding of fact by the learned judge at Special Term was that the testator did not intend to give this fund to this particular corporation, but to any corporation which could answer the description given by his will. Notwithstanding that the intention of the testator with respect to this society may not be controlling, it is impossible for it to be without its effect. The finding of fact could not well have been otherwise when we consider the circumstances. It is altogether inconceivable that a testator, intending a certain existing corporation to take under his will, should not only fail to name it, but should fail to describe its chartered objects, with some approach to accuracy, when he was an incorporator and its principal officer. The testator Avas not a layman but a lawyer, a fact deserving of attention. If we conclude that testator did not'suppose this society capable of receiving this fund, are we not bound to scrutinize most closely its right to it, in view of the fact that he must have knoAvn, as a founder, what Avere its scope and projected aim ? It is suggested, on behalf of the society, as a reason for the testator’s not designating it by name, that it must have occurred to him that, before the close of his nephew’s life, the society might have discontinued operations, or might have become irresponsible. This is an ingenious suggestion, but hardly one which has sufficient force to remove the obstacles to our finding an understanding in the testator that this society would take. I have adverted to the circumstances, at the time the Avill was executed, as illustrating the testator’s close connection with this institution and the singularity of his omission to designate it, orto describe its corporate objects, if he had it in mind as competent to execute his benevolent purpose. When we are aided by extrinsic proof in the case

His position with regard to the society, taken in connection with the fact of his being a lawyer, leaves no room for us to doubt as to his understanding of the legal status and aims of that corporation. He knew that its authorized corporate objects were to relieve indigent Jews in Jerusalem. He could not be supposed' to be unaware of the distinction between performing those charitable offices which indigent individuals demand at the hands of their fellowmen, and the expenditure of moneys in building up an educational system among the members of his race, who resided in a distant land; not so favored as other lands were with the advantages of schools and academies of general learning.

The testator’s description of the corporation, to which the money should be paid, as one whose charter established a permanent fund for the purpose of ameliorating the condition of the Jews in Jerusalem, does not agree with the stated objects of the charter of this society, if we read language with the meaning, which the ordinary and usual sense and import of words convey. That the testator did not understand his description to refer to a corporation, whose chartered, objects were to administer charity to the poor and needy, is evidenced by his subsequent definition of what he understood by ameliorating the condition of those of his race who dwelt in Jerusalem. He defines it as the promotion among them of “ education, arts a/nd sciences and learning them mechanical and agricultural vocations.” His purpose was liberal and benevolent; not such as is commonly understood by the courts as charitable. This society is limited by its charter to works of charity; and, while charitable work is promoted by benevolence, and a charitable society may be termed a benevolent society, there is a wide distinction between that object of benevolence and one which aims at maintaining an educational system. To relieve the indigent means to administer to their pressing and recur

It is a well known and notable fact with the Jewish race that their poor are so generally well taken care of as to make a Jew beggar almost an unknown spectacle. But to educate individuals does not relieve their indigence. Schools and lectures will not relieve the daily wants of families, or keep the wolf from the door. The general education afforded by the state, or by the benevolence of individuals, results in a few persons, in the general number, concentrating in themselves, by superior aptitude, the principles of learning, which the hooks and the teachers have taught them. These few may be enabled to make use of these principles by some practical application, and thus may he able eventually to improve their condition. But it cannot correctly be said that furnishing one with education relieves him from want. Many a student has starved, and many a scholar has suffered from physical privations, which his wealth of learning and stores of knowledge were useless to him to relieve. The promotion of education in the arts and sciences and in mechanical and asrieulO tural vocations means to furnish all with the means of acquiring knowledge, irrespective of their wealth or poverty. I think we could not strictly, and, therefore, should not here say that a society instituted to relieve indigence comprehends an original design, or the purpose to educate persons in the arts and sciences or to follow a vocation. The objects are sympathetic, as are all the objects of benevolence; but they are distinct in their aim and in their prosecution.

It is quite conceivable that the testator, aware of tlie absence in Palestine of the opportunities for the various forms of education, sympathized with the members of his race in their deprivation, and felt that there was a field for benevolent action open, which would strongly appeal to others, who, like himself, had had so many advantages offered to them. I think it is quite probable that what the testator intended was to hold out an inducement to the formation of such a corporation as he describes. He knew there was none such in Hew Tork city,

I do not think the objects and purposes, to which the charter of this society limits it, comprehend the objects and purposes which the testator prescribes; and it should not, therefore, be permitted to take under this will. In each case, where a corporation claims the right to take under a will, that right may be the subject of severe scrutiny. Its right to take at all is derived from the act of incorporation, without the dispensation of which from the general statutory prohibition the corporation could not take. This bequest constitutes a trust for a purpose not included within those retained by the statute abolishing all uses and trusts; and unless, therefore, the purpose is comprehended within those which the chartered powers of the corporation enable it to effect, the bequest must fail.

The respondent cites the cases of the wills of How (10 NT. Y. 84) and of IlalUjarten (110 id. 678), where legacies were sustained; though in the former case the corporate name of the institution was not stated, and in the latter case the bequest was to an unincoiqiorated society. The Hallgarten Will Oase (reported as Matter of Wehrhane in 110 N. Y. 678 ) does not touch the present case, because there the “ Newsboys’ Lodging-House” was a branch department of the Children’s Aid Society, to which the testator had already also given a legacy. In the case of New York Institute, etc., v. How’s Executors ( 10 N. Y. 84 ), the court held that it was a question of identity, arising upon description, and that the point was whether the legatee can be found. It was held that though the act of incorporation did not bring the objects of the institution within those described in the will, that “ subsequent legislation had so far modified the charter of the corporation in those particulars that when the will was made these several circumstances had been engrafted upon it and might well enter into a description of its general scope and purposes. As the court

I admit the principle invoked by the respondent that where the intention is apparent the court must give such a construcas will support the intention of the testator. It is one too well settled and too often invoked by judges to be overlooked. It is upon that principle that courts of justice act in construing wills. Where the apparent intention is commendable, as in this case,'courts may strain in their effort to give it effect. But we have here a case where the testator’s intention, as derived from the extrinsic circumstances and from the language of his will, would'appear to exclude the respondent society. The omission to name this society, or to describe more aptly its chartered purposes, is as highly significant, as it is certain rhat the society does not fall within the class of corporations described. In order to execute such a trust as is here contemplated, some legislative action, or amendment of the .charter would be required, which would enable it to comprehend the promotion and maintenance of educational enterprises within the scope of its chartered powers. How a corporation can exercise no other powers than those expressly conferred by the charter and those which may be necessary to the exercise of the powers so given. For us, therefore, to sanction the claim of this society to the fund would be to disregard the provisions of the Revised Statutes with respect to the powers of corporations, and to hold that a -corporation, upon which is conferred the capacity to perform a certain function, may take upon itself the performance of other functions, which are in their nature distinct and different.

The appellant also has presented the point that the bequest was void for indefiniteness. The direction of the testator was to pay the money to “ any responsible corporation in the city existing at the time of the death of his nephew, whose permanent fund]’ etc. Unquestionably, if there were more than one such society in existence at the time, the gift would be void for the uncertainty. The learned justice at Special

The judgments below should be reversed ana, as a new trial. could not be productive of any different result, judgment absolute should be entered for the appellant Leo, with costs to be paid out of the estate.

All concur.

Judgment accordingly.