In re Lampson's Will

William Lampson, the testator, died February 14, 1897. On the 21st day of December, 1896, less than two months before his death, he executed the will which is the subject of the present controversy. Decedent was a bachelor about 56 years old. His nearest relative is an aged aunt, residing at St. Paul, Minn., and who would be entitled in case of intestacy, or in the event that any bequests should be held invalid, to the entire unwilled personal estate. His heirs at law consist of this aunt and more than 50 descendants of deceased uncles and aunts, both on the side of the father and of the mother of testator. The personal property is of the value of about $400,000, and the real estate is worth from $75,000 to $125,000. The entire estate, excepting about $35,000, is given to Yale University, the disposing clause beginning: “I give and bequeath unto my alma mater, the corporation of Yale College.” On the day of the return of the citation for probate, appearances were entered in behalf of a large number of the heirs, and answers were filed, containing objections in the form usual in cases of contested probate, alleging undue influence and lack of testamentary capacity. The answers also put in issue the legality of the bequests to Yale University, and the decision of this court was invoked, under the provisions of section 2624 of the Code of Civil

Upon this question only Mrs. Brooks, the aunt, is directly interested, for the reason that the statute gives to the surrogate’s court no jurisdiction, to determine the validity of any devise of real estate. The result of this, as all parties concede, is that the will must be admitted to probate, and letters testamentary issued to the executors in the manner provided for by the will. In case the courts shall decide the bequests to Yale valid, such decision will, although indirectly, effectually dispose of the validity of the devise, since the same principle would apply in the disposition of the real estate as in the case of personal property. Should the provisions for the university he held upon appeal from this decision to be invalid, the heirs at law will have their appropriate remedy to gain possession of the real estate, and such remedy will he unaffected by the fact that the will has been admitted to probate. Chapter 128 of the Laws of 1881 authorizes Yale College to take real property by gift or devise within this state.

The sole ground upon which the bequests to Yale are assailed is that the will was executed less than two months before the death of testator, in contravention, as is claimed, so far as the bequests are concerned, of a statute of this state. The large amount of property involved, the somewhat unusual attention which this case has attracted, the great care and labor bestowed by counsel in the preparation of exhaustive briefs and in the very able oral arguments, have rendered it the duty of the court to give to the case the most careful examination and study. These considerations, as well as the fact that counsel have united in the request, have led me to state quite fully the reasons for my decision.

Certain statutes of this state and one decision of the court of appeals must at the outset be freely quoted, as upon these statutes and this decision counsel on both sides largely rely. They are, without doubt, decisive of the controversy. Chapter 319 of the Laws of 1848 is entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies.” Section 1 of this law prescribes the method by which corporations may he formed, and enumerates the purposes for which societies may be incorporated under the act. S'eetion 6, the provision which has given rise to most discussion, has never been amended. Reference will necessarily be made to this seetion so many times that I shall continue to refer to it merely as “section 6,” without further statement as to the chapter or the year of its enactment. It is here given in full:

“Sec. 6. Any corporation formed under this act shall be capable of taking, Holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual Income of which devise or bequest shall not exceed the sum of ten thousand dollars; provided, no person leaving a wife or child or parent shall devise or bequeath to such institution or corporation more than one-fourth of his- or her estate after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been made and executed at- least two months before the death of the testator.”

“The institutions of the university shall include all institutions of higher -education which are now or may hereafter he incorporated in this state.”

On the 18th of May, 1892, the general corporation law was enacted. As its name indicates, this law is general in character, classifying the different kinds of corporations, providing for the methods of formation, the limitation of powers, the acquisition of property, besides various other matters such as would naturally be included in a law of this description. Section 11 is in part as follows:

“Grant of General Powers. Every corporation as such has power, though not specified in the law under which it is incorporated: * * * 3. To acquire by grant, gift, purchase, devise or bequest * * * subject to such limitations as may be prescribed by law.”

Among the kinds of corporations provided for by the general corporation law of 1892 are membership corporations; and in 1895 the legislature," following out the scheme of the revision commission, passed the membership corporations law. At the end of this act, as in the case of the other laws prepared by the commission, there is appended a schedule of laws repealed. This schedule includes 114 acts -of the legislature repealed in full, and 18 repealed in part. In the latter class is found the act hereinbefore referred to for the incorporation of benevolent, charitable, scientific, and missionary societies, which is set down in its chronological order in the schedule as follows: “1848—chapter 319. All except section 6.”

The decision to which reference has been made, and which is by common consent the leading authority bearing upon the present controversy, is Hollis v. Theological Seminary, 95 N. Y. 166 . This case " ivas decided in 1884. The will of testator gave a bequest to Drew Theological Seminary, a corporation formed under the laws of New Jersey; and another bequest to the Wesleyan University, a Connecticut corporation. It was contended in behalf of certain relatives of the testator that these bequests were void, under the provisions of section 6, referred to, by reason of the fact that the will was made less than two months before death. It would appear from this that the questions presented were identical with those raised in the present case, and, unless satisfactory and conclusive reasons to the contrary are shown, that the decision of the. court of last resort must control at this time. ■ The counsel • for Yale University rely so confidently

“The whole of that section clearly has exclusive reference to corporations formed under that act, and the prohibition contained in the latter clause of the section is simply aimed at devises and bequests made to such corporation. As there was not a similar prohibition in the charter of either of these corporations, these bequests cannot be condemned by the letter of any statute. So much is clear.”

The opinion then proceeds:

“The general rule is that one may do with his property as he pleases. He-may dispose of it by will in any way that suits his fancy or his judgment. He may give it all to strangers, and thus disinherit his relatives. He may give it all to natural persons or to corporations capable of taking. He may give it directly or create trusts which the law allows; and this general power of disposition he possesses down to the last hour of conscious, intelligent existence. It is not against public policy to allow gifts to charitable, benevolent, scientific, or educational institutions. The law allows and encourages such gifts, and those who make them are commended as the benefactors of their race. Such institutions, dotted all over our land, to succor, elevate, educate men, and ameliorate their condition, are distinguishing features of our modern civilization. It is just as praiseworthy to give to these institutions by will, within two months before a testator’s death, as at an earlier date. There is- nothing essentially evil or of evil tendency in gifts thus made. They do not disturb the public weal. ' But it so happened thát testators in the imminence of death, unduly influenced by hopes or fears or by importunities of interested parties, sometimes gave improvidently to such institutions, disregarding the claims of ’ near relatives, forgetting the maxim that ‘charity begins at home’; and hence, when the legislature came to frame a general law for the incorporation of these institutions by any persons who chose to associate for that purpose, it devised the limitations found in the act of 1848. The limitations, as above stated, applied only to corporations formed under that act, and those were corporations-for ‘benevolent, charitable, scientific, and missionary purposes.’ * * * In-one of the opinions delivered in the case of Kerr v. Dougherty, 79 N. Y. 327 , it was said that between that year and the year 1870 nearly 150 acts were passed creating new corporations, or extending and enlarging the powers of old corporations, similar to those named in the act of 1848, and that the two months’ limitation was imposed upon but few of such corporations; and since 1870-similar action has been taken many times by the legislature. How can it be said, then, that there is any general public policy as to the two. months’ limitation? When the legislature has desired its imposition, it has imposed it, and thus far indicated its policy. * * * If such was to be the general policy of' the state, why was not the two months’ limitation also made applicable in terms to all such corporations? * * * That cannot be enforced as public policy by the courts which the legislature one day prohibits in some cases, and another day permits in other cases. If there were a general law in this state ‘ that no bequest to any of such corporations should be valid unless contained in a will made at least two months before the death of the testator, that would indicate a general public policy which the courts of this state would enforce against foreign corporations which might come into this state, although such a limitation was not imposed by the laws creating them. * * * There is no policy-outside of the statute which condemns such wills-. The policy is found only in the statute. * * * If these appellants had been domestic corporations, the two months’ limitation would not have applied to them, and so it cannot be applied to them as foreign corporations. They must stand here in this case upon

These statutory provisions and the decision quoted form the foundation of contestant’s claim. It has seemed to me that any examination of the questions involved in this case, however thoroughly entered into, made from ordinary standpoints, must result in the conviction that the claim made in behalf of the next of kin of testator finds complete refutation in the statutes and decision relied upon in its own-support. Arguing from premises not commonly to be conceived of, to say the least, the ingenuity of the learned counsel for the contestant has wrought out a theory by which it is maintained, and upon which an able and elaborate argument is based, that the expression of opinion by Judge Earl in the Hollis Case, in the sentence which I have italicized, when applied to the statutes which have been quoted, afford sufficient ground for adjudging the bequests to Yale University invalid and illegal, because made two months before the decease of testator.

The claims advanced by counsel, although not categorically stated by him in his brief, seem to me to be fairly stated as follows: (1) The repealing schedule of the membership corporations law having preserved section 6 of the act of 1848, while repealing the rest of the law, this section is to be deemed as ingrafted upon and made a part of the law which thus saved it from repeal, the language employed by counsel being: “Section 6, remaining unrepealed by this act, is apparently left as a part of the membership corporations law.” (2) The general corporation law of 1892, by providing that corporations formed under it might take by devise or bequest “subject to such limitations as may be provided by law,” must now be construed as including section 6 of chapter 319 of the Laws of 1848 as among “the limitations which may be provided by law.” (3) The court of appeals, in the case of Hollis v. Theological Seminary, 95 N. Y. 166 , having decided (a) that the restrictions contained in section 6 only applied to corporations organized under that law; (b) that the said section had no application to corporations formed in other states; (c) that bequests to foreign corporations for humanitarian purposes were not against public policy; and that there was no .public or legislative policy against bequests made within two months of death,—the legislative policy of the state underwent a radical change in the year 1895, such change being evinced by the retention of section 6 at the same time the remaining sections of the same act were repealed, thereby rendering that section “a part of the membership corporations law.” (4) All colleges and universities, being nonstock corporations, are therefore, under the classification laid down in the general corporation law, membership corporations,

Stated now more concisely, and condensed into a single proposition, the contestant, having assumed for thé dictum in Hollis v. Theological Seminary, all the weight and authority of a deliberate decision, seeks to maintain that the legislature has now enacted “a general law that no bequests to any of such corporations should be valid unless contained in a will made at least two months before the death of the testator.” The proposition that section 6 has become “a part of the membership corporations law,” and has acquired added force by the manner of its retention, and by virtue of the repeal of the remainder of the act of 1848, is vital to the contention made by the contestant; for it is only' upon this theory that the force of the decision in Hollis v. Theological Seminary, can be met or overcome. I am wholly unable to discover any reason or authority for the claim that this section is ‘to be given any different force or effect under or by reason of the circumstances of its repeal than it would have been entitled to had a separate and distinct law been enacted for the sole purpose of repealing chapter 319 of the Laws of 1848, excepting section 6. The doctrine is new and surprising that, where an act of the legislature is all repealed except one section, such section becomes, by virtue of the exception, a constituent part of the repealing law, or obtains any new or different force or effect by reason of the obliteration of the sections which had formed part of the original act. The learned counsel for the contestant, in a brief evincing the greatest labor and research, wholly fails to cite a decision or authority promulgating or suggesting any such doctrine, or containing an intimation that such has ever been recognized as the law. On the other hand, how obvious is the purpose for the retention of section 6. A large number of societies had been organized under this act during the course of 47 years. AD' were subject to the provisions against the validity of bequests made within two months of death. No good reason seemed to exist why these societies should be relieved from the restriction, which by the

In Endlich on the Interpretation of Statutes it is said, at section 49:

“Where a part of an act has been repealed, it must, although of no operative force, still be taken into consideration in construing the act.”

In Bank for Savings v. Collector, 3 Wall. 495 -513, it is said:

“Although the proviso is repealed, still it is proper to resort to it * * as .affording a legislative exposition of what is meant by the phrase ‘engaged in the business of banking,’ as employed in the first clause of the section under consideration.”

In Ex parte Crow Dog, 109 U. S. 556 -501, 3 Sup. Ct. 396 , 399, decided by the supreme court of the United States in 1883, the opinion states:

“Nevertheless, although the section of the act of 1834 containing the definition of that date has been repealed, it is not to be regarded as if it had never been adopted, but may be referred to in connection vpth the provisions of its original context which remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country where it is spoken of in the statutes. It is an admitted rule in the interpretation of statutes that clauses which have been repealed may still be considered in construing the provisions that remain in force.”

Another claim made by counsel for contestant is that institutions of the character of Yale are membership corporations, as defined by existing statute. This theory is quite necessary to his contention, in view of the claim made for section 6 as a constituent part of the membersMp law, and of the analogy sought to be made between Yale and educational institutions of this state, although, on the other hand, to concede the claim could scarcely prejudice the position of prope

Neither do I believe, in the light of the comprehensive and complete system of laws which has existed in this state from an early date providing for the incorporation of institutions of learning,—a system which has now culminated in the university law of 1892,—that the limitations contained in the act of 1848 could be extended by analogy to'Yale, even were Yale a domestic corporation. When the will in question was made, in December, 1896, the act of 1848'had been repealed except as to section 6, and the only method for incorporating a college or university in this state under a general law would have been by virtue of the university act. So far as I can find from an examination of the act of incorporation of every college or university of note within this state, aided, as I have been, by the instructive brief of counsel for Yale, not one has been formed under the act, of 1848, and it may well be doubted whether, with the complete and harmoni

The language of section 11 of the general corporation law which I have quoted does not mean that every “limitation which may be provided by law” shall apply to every corporation. Such a construction would lead to endless confusion, and would render the recent important legislation of the state a mass of inconsistency. It is entirely dear that the words just quoted from the statute imply that each class of corporations shall be subject to such limitations as pertain to that dass, and to such limitations only. If the legislature of the state of New York, or the learned and experienced commissioners of statutory revision, desired or intended to effect so radical, important, and far-reaching a change in the law as that claimed by counsel for contestants, the result would have been accomplished, not by the complex, uncertain, and sinuous methods which it is claimed have brought about the result, but by a direct, clear, and unequivocal enactment that corporations or certain designated corporations might no longer take property by a will executed within two months of death, and that foreign corporations should be subject to the same rule. The steadily progressive character of legislation in this state favoring humanitarian societies of all kinds, whereby restrictions have been removed, powers enlarged, amounts which might be taken by gift or by will increased, renders it highly improbable that the legislature has taken the backward step claimed by contestants. No such construction

The case oí Vanderpoel v. Gorman, 140 N. Y. 563 , 35 N. E. 932 , is much in point. There is a general law in this state forbidding transfers or assignments of property by corporations in contemplation of insolvency. The court decided that, although the law was of general application to all domestic corporations, yet it could not be applied to a corporation doing business within this state, but organized" under the laws of another state. Judge Peckham, writing the opinion-' of the court, says:

“It is urged that such a policy is to "be found in this same statute, even though it in terms applies only to domestic corporations. * * * It is thus seen that there are differences of a marked character between a domestic and a foreign corporation in relation to this subject. The differences are so marked that the statute regarding domestic corporations can furnish no proof as to the existence of a public policy which, in the case of foreign corporations, should' stand in the place of and be equivalent to that statute.”

It is worth while to notice the fact that the effect of a general statute of this state upon a foreign corporation was the precise point in controversy in the case just cited. Judge Earl concurred in the decision and in the opinion, and the language employed by him in the Hollis Case cannot be said to weigh against the positive decision in Vanderpoel v. Gorman. There is no real conflict between the two opinions. See In re Prime, 136 N. Y. 360 , 32 N. E. 1091 ; Cole v. Frost, 51 Hun, 578 , 4 N. Y. Supp. 308 ; Id., 117 N. Y. 656 , 22 N. E. 1133 .

The argument has been advanced by contestant that the courts have in several cases extended the restrictions of section 6 to corporations not formed under the act of 1848. These cases were decided before the case of Hollis v. Theological Seminary, and are commented upon in the latter case. The doctrine of the Hollis Case is in no respect antagonistic to the earlier cases, and the distinction between them is perfectly clear. In Lefevre v. Lefevre, 59 N. Y. 434 , the will contains a bequest to a. charitable society in New York incorporated in 1849. The charter of the society gave it power “to receive by gift or devise, in the same manner and subject to the same restrictions as provided in the general laws for the incorporation of religious and benevolent societies.” The will in controversy was made within two months before death, and the decision is merely to the effect that the act of 1848 was the only law which could have been referred to in the charter; so that it was clearly the deliberate intention of the legislature to make the charter of the society in question subject to section 6 of the act of 1848. The cases of Kerr v. Dougherty, 79 N, Y. 327 , and Stephenson v. Short, 92 N. Y. 433 , and the later cases of Fairchild v. Edson, 154 N. Y. 199 , 48 N. E. 541 , and Trust Co. v. Smith, 82 Hun, 494 , 31 N. Y. Supp. 519 , are to the same effect, and follow the Lefevre Case.

I have already pointed out that the argument of contestant rests, as it appears to me, wholly upon the claim that recent legislation has so changed public policy with reference to bequests to corporations that the beneficiary under the will of Mr. Lampson must yield to that policy; and I have also shown that this claim depends on the expres

Among the laws just pointed out are two where the charter restricts the corporation formed thereunder to powers and liabilities •conferred by the general corporation act, while five others contain no restriction. While I do not believe that the limitation can be traced through the membership corporations law back to the general corporation act, and through that act back to section 6 of the law of 1848, it is worth while to note that if it should be claimed that the restriction contained in these two charters referred to does in fact .mean that the societies incorporated thereunder, being subject to the limitations contained in the general corporation law, are therefore subject to the provisions of section 6 of the act of 1848, then it necessarily follows, and the conclusion seems to me to be irresistible, that the omission of this restriction from the charters granted to the Lucy A. Wood-Rowe Memorial Association and the other societies •similarly incorporated excludes them from any possible relation to the act of 1848, or any restriction or limitation by virtue of section 6. 'The counsel for contestant says in his brief: “The provisions of special charters of favored corporations are not to be considered on this question of the public policy of the state.” In contract with this, •statement stands the opinion of Judge Earl in Hollis v. Theological Seminary, in which the fact that, since the act of 1848 was passed, a large number of institutions had been chartered by special acts, without being subjected to the restrictions of section 6, is pointed out •as unmistakable evidence that no public or legislative policy existed which was opposed to bequests made within two months before the -death of the testator. These recent acts of the legislature answer more fully than any mere argument could do the claim that it is now contrary to public policy to permit gifts to corporations when made by will executed within the two-months limit. Surely, “that -cannot be enforced as public policy by the courts which the legislature one day prohibits in some cases, and another day permits in other cases.”

But one more branch of the case need be discussed, and that is the point raised by counsel for the university that the devise of real property contained in the will is so inseparably connected with the "bequest of personalty that this court may not exercise the power conferred by section 2624 of the Code, and determine the validity of the bequests. In view of the disposition I have made of the case, the ■question- might be deemed unimportant, except for the fact that it is jurisdictional. I have examined it with the care which its importance demands, with the conclusion that this court has the power to ■determine the validity of the bequests under this will. Discussion need not be entered upon further than to say that, while I believe this -court has full power to decide as to the legality of the entire bequest

I have not attempted to discuss this case in every aspect presented by the learned counsel for the contestant in his very able brief and oral argument. To have done so would have been to write a treatise,, and yet that would afford no reason why the discussion should not be had if the case required it. The issue, after all, is one of statutory construction, and may be confined within narrow limits. The decision which has been reached seems to me the only one which can. be rendered with due regard to legal principles, and without attributing to the legislature and the revisors a disposition to render complex and uncertain that which could as easily have been placed beyond controversy. I am fully satisfied that there has been no change in the legislative policy of this state with reference to the matters which have been discussed in this opinion, certainly none adding to the restrictions imposed upon charitable or educational bequests. I believe the purpose in retaining section 6 of the act of 1848 was as has here been pointed out, and that should the time ever come when the legislature shall see fit to further prohibit bequests made shortly before death, and to extend that prohibition to foreign corporations,, it will not be done by complicated, tortuous, ambiguous, and uncertain methods, but rather by direct and clear statutory provision.

The bequests to Yale University contained in the will of testator are therefore adjudged valid. The will is admitted to probate, and letters testamentary will be issued to the executor and to the Mercantile Trust Company of the City of New York. This institution had been selected after consultation with the executor named in the will and with the university authorities, before objections were filed, and is satisfactory to all parties concerned. The designation by the surrogate of a trust company in the city of New York as executor wag-required by the terms of the will. Decreed accordingly.