Dammert v. Osborn

José Sevilla, residing and domiciled at Lima, in the republic of Peru, died there on the 9th of December, 1886, having made and published his last will and testament, bearing date July 2, 1885, by which he disposed of a large estate, consisting mostly of personal property, a considerable portion of which, or the evidences thereof, was at the time of his death actually within this state. The will was duly proved and established under the usual and proper judicial proceedings in the courts of the country where the testator was domiciled, having by law jurisdiction in such cases, and executors appointed pursuant to its provisions. These executors, residing in Peru, together with the appointed heirs and residuary legatees, caused the will or a copy thereof to be recorded in the office of the surrogate of New York, and thereupon, with their assent and upon their motion, the plaintiffs were appointed ancillary executors in this state, and having qualified and entered upon the duties of the trust, took into their possession the personal estate here. The single provision of the will out of which the questions arise which are involved in this appeal, is a charitable bequest for the education of poor female children in the city of New York. .

The several clauses by means of which the testator sought to accomplish this purpose are quite elaborate and formal, and

He directed that in all matters relating to the institution a prudent economy be observed; that the buildings be adequate to the end to be attained, constructed to receive from fifty to one hundred children and the teachers required, the land to be purchased and buildings erected at moderate prices. The managers were empowered to make rules for the government •of the institution in the best manner, not forgetting the following conditions: (1) Only very poor children, from five to ten years of age, fit for apprenticeship and free from ailments, were to be admitted, to remain in the home until they attained the age of sixteen. (2) The food and clothing to be economical and suitable, and the latter to be of uniform pattern and color for all. (3) The instruction to be primary and upon the basis of a moral education with directions as to the practical branches to be taught. (4) Day scholars to be admitted providing they did not occasion expense, to be kept apart from the boarders in order to preserve the moral tone. He then gives directions for investing any money earned by the children, whenever that was possible, one-lialf to be paid to them ■at sixteen, and the other half devoted to the support of the school. The number of children to be always subordinate to .the resources, preference to be given to natives of Peru, upon

The plaintiffs, in their complaint, sHte all the facts and ask for the judgment of the court with reference to the disposition of the fund in their hands. The defendants are the trustees named in the will and the corporate body created upon their application and the executors, appointed heirs and

The learned judge, before whom the cause was tried at the Special Term, held that the bequest for the Sevilla Home was void, as contravening the statute of this state against perpetuities and for other reasons, and that none of the defendants were entitled to receive the gift, and he directed that the plaintiffs account for the fund to the executors and appointed heirs in Peru, and to that end that the fund be remitted to that country without determining to whom • the beneficial interest in the fund belonged. The General Term has affirmed the judgment, and the Sevilla Home and its individual trustees have appealed to this court.

At every stage of the inquiry pressed upon us by this appeal, it is important to keep in view a fundamental fact, established by uncontradicted evidence at the trial and conceded upon the argument, and that is that the bequest to the Sevilla Home was perfectly valid by the law of Peru, the domicile of the testator, which governed his personal property, wherever it was at the time of his death. The validity of the gift by the law of the domicile necessarily involves the conclusion that it is not affected, under, that law, by the fact that at the time of the testator’s death there was ho trustee competent to take, or that the estate did not vest within a period measured by lives, or by the general and indefinite nature of the trust, nor any other local rule that would defeat the intention of the testator in case it had been a domestic will. The general principle

But the object of this bequest, instead of tending to such results, was highly laudable and commendable, and certainly there is no public policy that forbids its execution. The law allows and in every proper way encourages such gifts, and sustains them, when capable of execution, and even when they are not, it does not hold them void, if valid under the law of the domicile, and it is only in cases where there is no adequate legal regulation for administering or carrying them into effect \ that the property will be remitted to the government of the domicile for administration. FTone of the parties in this case have acquired any title to the fund in question that they are not given by the law of Pern. Our courts may in certain cases decline to administer the gift, and remit the property to the principal seat of administration, but they cannot divest the title of one or transfer it to another contrary to the law of the domicile. That law is part of the disposition and the foundation

When that statute was passed it was not within the legislative purpose to interdict dispositions made in other countries to take effect here. There is nothing in the language used that indicates such a purpose. There are other statutes that invalidate testamentary gifts to certain corporations unless made within a certain time before death where the testator had wife, children or parents. The purpose of these statutes is evident. They were intended to prevent improvident and hasty bequests to the prejudice or neglect of those natural obligations which the law also imposes upon the citizen. But these restraints applied to members of the political community from which the law emanated and not to persons in other /countries where no such restrictions existed, and who desired I to give according to their own laws. Bequests by such persons to those corporations, without regarding the statutes referred to, would be good if valid at the domicile of the tes1 tator. (Hollis v. Drew Theo. Seminary, 95 N. Y. 171 .) It is no part of our public policy to condemn such gifts to charitable or benevolent corporations here. Our law permits the citizens or subjects of other countries to dispense charity here in such measure as they wish and according to such methods as their own laws prescribe. The policy that dictated our

In the first case cited we held that a testamentary disposition of personal property in trust, by a person domiciled in another state, valid by the law of the domicile, though in some respects contrary to our statute, was not void, and we Refused to annul the will of the testator that had taken effect and been acted upon here for many years. ■ In the second case we refused to interfere with a testamentary disposition in a domestic will, containing a trust for a charity, in a foreign country, where it was valid and capable of being executed and enforced, although perhaps under our law the beneficiaries were not sufficiently defined and it may have been open to other objections. The trend of these cases is unquestionably towards the conclusion that our statutes apply to domestic wills that by their provisions are to be executed here. An accumulation to take effect in another country or a bequest made there to take effect here was not within the intention of the legislature when these statutes were framed. There is, however, this clear distinction between the cases cited and the one at bar. In the former we were not asked to aid in any way the execution of the will or the administration of the trust, but to declare it void at the suit of heirs or next of kin. The parties who stood upon the dispositions of the will simply asked ns to allow them to execute the testator’s purpose with respect to his property and to manage their own business in their own way. But in this case we are asked, virtually, to put the Sevilla Home in possession and control of the fund and thus give active aid and assistance in the enforcement of a trust, which, in a domestic will, would doubtless be void, and therein is the real difficulty which the situation presents. The objection to this relief, which, under ordinary circumstances, might be formidable, has been, we think, greatly obviated, if not entirely removed, by the legislation which has been

Whether in the executors, for the purpose of delivering it to the trustees, or in abeyance, it matters not. So long as that law would not permit it to vest in any other person, or for any other purpose, no property right was violated by the legislation. Had the title vested elsewhere, in the meantime, in consequence ’ of the invalidity of the bequest, or for any reason, of course that title could not be disturbed by the legislature. But by force of the law of the domicile upon the facts disclosed by the record, if the fund should be remitted to the executors in Peru, pursuant to the judgment, they would, in the discharge of the trust imposed upon them by the testator, be bound to pay it over to the Sevilla Home for the purpose declared in the will, as the legislature had, subsequent to the death of their testator, created a competent body to execute that purpose without affecting any private right.

There is another and more recent statute that has some application to this case, as it is the last expression of the legislative will on the subject, and discloses what our public policy is with regard to such bequests. By chapter 701 of the Laws of 1893, entitled “ An act to regulate gifts for charitable purposes,” it is enacted, that no such gift, when valid in other respects under the law of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries in the instrument creating the same. That in such cases when a trustee is named the title shall vest in him, and if no person is named as trustee, then the title shall vest in the Supreme Court, and in all cases of bequests to charitable uses, where the beneficiaries are not definitely designated, that court shall have full control, and it shall be the duty of the attorney-general to enforce the trust and represent the beneficiaries. This statute indicates an intention on the part of the legislature to enforce and uphold charitable bequests not heretofore recognized as valid, and it may be regarded as the first step in the direction of modifying that body of law which this court, has built up on the ruins of the system outlined in Williams v. Williams ( 8 N. Y. 525 ).

The result which the second division of this court was constrained to reach in a recent case of public importance, no doubt had some influence in creating the sentiment which is embodied in the law. (Tilden v. Green, 130 N. Y. 29 .)

It seems to be assumed, on the part of the respondents, that these statutes can have no application to this case, inasmuch as they were not enacted until after the testator’s death. That would be so had the property vested otherwise than for the purpose of founding the home; but as it did not under the law of the domicile it could not under the law of the forum. When a court of equity obtains jurisdiction and all the facts are before it by supplemental pleading, as they are here, it may and generally does adapt the relief to the situation exist

The case turned in the court below upon views of public policy with respect to the enforcement of the donor’s will, but what that policy actually is should be determined by the situation existing at the time the court is required to make its decree disposing of the fund, and the statutes referred to have .an important bearing upon that question.

It is urged that the corporation created at the request of the philanthropic managers and known as the “ Sevilla Home for Children,” is not the instrument or agency which the testator selected for the execution of his purpose, and that to permit it to receive the fund and found the institution is practically making a new will. "We are not impressed with the force of this objection. The testator did not profess to be and evidently was not informed with respect to the legal formalities and details which were necessary in another country to carry his purpose into effect. The trustees were, therefore, charged with the duty of making effective the object he had in view through such legal organization as became necessary, and if it became essential, as it did, to clothe themselves with •corporate powers, that was fairly within the scope of the general scheme just as it would be to organize the board in any •other way. Moreover, it is reasonable to conclude that when the testator charged the municipal authorities of Hew York, with the duty of watching over the institution which he desired to found and to see to it that his purpose was carried out, he contemplated some action on the part of the government, within whose jurisdiction the institution was to exist, and so the state, in the exercise of its plenary power, created a corporate body to receive and administer the gift to the end that the purpose of the donor should not be frustrated. This was in aid of the general scheme and did not divert the fund, to other hands or subject it to control and management not fairly within the testator’s intention. The appeal which he made to public authority was a fair subject

The interference of the legislature for the purpose of validating gifts to charity in foreign wills to take effect here, which would be invalid in domestic wills, is not a new or extraordinary exercise of its authority. Chapter 241 of the Laws of 1876 was passed for that purpose and effect was thereby given to such a bequest in a Massachusetts will where it was held to-be valid by the courts of that state though, but for the statute, it would not have been enforceable here. (Fellows v. Miner, 119 Mass. 541 .)

The discussion thus far has left entirely out of Anew the claim of the defendant, the Sociedad de Beneficiencia de Lima, as residuary legatee. It is not necessary to refer to all the questions involved in the argument in its behalf as they are all disposed of by a few propositions Avhich, I think, are controlling. In its answer it is expressly admitted that the will is A'alid under Peruvian laAV, but it is alleged that, by the terms of the instrument, it became entitled to receive the bequests to the institutions named therein in case the donees refused to receive them or Avhen the designated beneficiary was unable to take, or Avhen the bequests prove to be inadequate for the specific objects, but it is not alleged that any of these contingencies have happened or that any of the conditions upon which the alleged right depended exist. The claim to the fund is founded upon the Avill, and that alone. The meaning of the language which the testator employed, and its legal effect and construction, must be determined by the law of the domicile, and it is not alleged or claimed that when thus construed any title or interest in the fund in question vested or can vest in this defendant, but the contrary is clearly involved in the admission that the bequest to found the home is valid under the foreign law. The contention of the Sociedad seems to be that the bequest is not one that Avould be recognized as valid in a domestic will, and, therefore, our courts should construe the will, and adjudge

The appeal to the General Term by the Sociedad resulted in an affirmance of the judgment, but it has taken no appeal to this court, and in this state of the record, I am unable to

It is proper, however, to say that we have examined the clauses of the will upon which the claims are based, and are of the opinion that, even if we felt at liberty to construe the language for ourselves, as in cases of domestic wills, instead of adopting the construction which the law of Peru imports into the instrument, the testator did not intend upon any contingency that has occurred, to vest the title in this defendant.

The will probably does confer upon it some power with reference to the collection, receipt and disbursement of the assets of the estate, but even this could hardly be held to apply to the fund in question, unless at the time of the testator’s death the property was in Peru. There is nothing in the language used that would require a court to hold that the testator required the securities found here to be first transmitted to the Sociedad in Lima, before they could be devoted to the founding of the home. The contingencies upon which ■certain bequests were to fall into the residuary fund, are to be understood in the light of the law under which the disposition was made, and thus construed this is not a case where the gift fails for want of a beneficiary or trustee competent to take.

There are some minor questions in the case, but the view taken in regard to the effect of the law of the domicile and the legislation of this state upon the rights of the parties, renders it unnecessary to consider them, and this necessarily leads to the conclusion that the defendant corporation, the Sevilla Plome for Children, is entitled to the fund for the purpose indicated in the will and the act of incorporation.

This court has the power to direct a final judgment that the plaintiffs as ancillary executors discharge the debts of the testator, if any, remaining in this state, and pay the balance of the fund to the home. (Code, § 2701.) There are no disputed ■questions of fact, and there seems to be no necessity for another trial. Final judgment should, therefore, be directed in accordance with the principles herein stated.

All concur.

Judgment accordingly.