Riker v. Leo — 15 N.Y. St. Rep. 932

Majority

p. 932

John H. Riker, as Sole Surviving Executor of the Last Will and Testament of Sampson Simson, deceased, and Trustee under said Will, Resp’t, v. Sampson Simson Leo, App’lt, impleaded with The North American Relief Society for the Indigent Jews in Jerusalem, Palestine, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

Will—Construction op—Benevolent and charitable bequests—Designation op trustee—When sufficiently definite.

The testator directed his executors to invest $50,000 and apply the interest to the support, etc., of his nephew, Moses A. Isaacks, during his natural life, and “upon his death I authorize and direct my executors * * * to pay the said principal sum of $50,000 to any íesponsible corporation in this city existing at the time of the death of my said nephew, whose permanent fund is established by its charter for the purpose of ameliorating the condition of the Jews in Jerusalem, Palestine.” The nephew, Moses A. Isaacks, is dead and the principal fund is claimed by the North American Relief Society for the Indigent Jews in Jerusalem. The testator was one of the incorporators of this society. The American Relief Society appears to be the only existing corporation of the character named in the will. Held, the bequest is sufficiently definite to be upheld. The will clearly implies that the executors are to exercise the power of selection or designation in case there should be more than one corporation capable of taking. The exercise of choice on the part of the executors is necessary, inasmuch as at the time when they are called upon to act there is but a single corporation in existence which can 'be a recipient of the testator’s bounty.

Appeal by the defendant, Sampson Simson Leo, from a special term judgment construing the will of Sampson Simson, deceased, in favor of the defendant, the North American Relief Society for the Indigent Jews in Jerusalem, Palestine.

John E. Parsons, for appl’tj A. L. Sanger, for the North American Relief Society, resp’t.

—This action involves the construction and validity of certain provisions in the will of Sampson Simson, deceased, who died in the city of New York, on the 7th day of January, 1857. By the fourth clause of that instrument, the testator directed his executors to invest $50,000, and apply the interest on that amount to the support, maintenance

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and comfort of his nephew Moses A. Isaacks, during his natural life. The fifth article of the will is as follows:

“Upon the death of my said nephew, Moses A. Isaacks, I authorize and direct my acting executors, the survivors and survivor of them, to pay the said principal sum of $50,000 to any responsible' corporation in this city existing at the time of the death of my said nephew, whose permanent fund is established by its charter, for the purpose of ameliorating the condition of the Jews in Jerusalem, Palestine. And I desire such corporation annually to transmit the interest received on said $50,000 to Jerusalem, Palestine, to ameliorate the condition of the Jews living there, by promoting among them education, arts and sciences, and by learning them mechanical and agricultural vocations.

“ Should no such corporation exist in this city at the death of said nephew, and my said acting executors, the survivors and survivor of them, shall be satisfied that my intention to ameliorate the condition of the Jews, can be accomplished through the instrumentality of the officers of the Jews’ hospital in Jerusalem, Palestine, or of any other corporation or trust company consenting to receive the said principal sum and apply its interest in accordance with my intentions above expressed; then I authorizs and direct my said acting executors, the survivors and survivor of them, to pay oyer the said principal sum of $50,000 to such officers, corporation or trust company, as my said executors shall deem best adapted to promote my object.”

The will further provided that in case the foregoing disposition of the $50,000 should fail, the said sum should go equally to the children of his niece, Jochebed M. Simson Leo, living at the death of his nephew, Moses A. Isaacks, and to the issue of any of her deceased children.

The nephew, Moses A. Isaacks is dead. The trust for his benefit having been terminated by his death, the principal fund is now claimed on the one hand, by the American Relief Society for the Indigent Jews in Jerusalem, and on the other by Sampson Simson Leo, as the only child of the testator’s niece, Jochebed M. Simson Leo, and hence entitled to the $50,000 under the bequest to the children conditioned upon the failure of those provisions of the will designed for the benefit of the Jews in the Holy Land. The court below, with some, hestitation, has decided in favor of the corporation.

It can hardly be doubted that the American Relief Society for the Indigent Jews in Jerusalem is such a corporation as the testator had in mind when he prepared the fifth article of his will. He was one of the incorporators of that society and must have known that the certificate of incorporation, which he signed delared its business, purpose and object to be, “to establish a permanent fund, the interest

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of which shall be annually applied to the relief of the indigent Jews in Jerusalem, Palestine.” The language of the will is so much like this, that the resemblance can scarcely have been accidental. It is true, the will speaks of ameliorating, instead of relieving the condition of the Jews in Jerusalem, and does not refer to them as indigent, but these differences seem to me of no great import. The American Relief Society appears to be the only existing corporation of the character indicated in the will, and no other institution has come forward claiming this fund. The learned trial judge has found that Mr. Simson did not by his will intend to give the $50,000 in question to this particular society, but that he meant to give it to any corporation which should answer the description contained in his will and which should be in existence at the time of his nephew’s death, provided such disposition could legally take effect; and upon this interpretation of the testator’s meaning the appellant insists that the bequest is bad for uncertainty. The court below held that while it would be void if there were in fact more than one corporation which could lawfully claim the fund, the gift could be sustained in view of the actual existence of but one society capable of becoming the donee at the time fixed by the terms of the will.

I think the bequest in this case is sufficiently definite to be upheld under the authority of Power v. Cassidy, 19 N. Y., 602 . There the property was bequeathed to the executors of the testator “to be divided by them among such Roman Catholic charities, institutions, schools or churches, in the city of New York ” as a majority of the executors should decide, and in such proportions as they should deem proper; and the gift was adjudged valid. Here, the will does not expressly empower the executors to pay to any corporation of the prescribed character which they may select or designate, but the language of the bequest considered in the light of the context, clearly implies that they are to exercise such power of selection or designation, in case there should be more than one corporation capable of taking. The class of beneficiaries which this testator had in contemplation was much smaller and was defined with much more particularity than the class mentioned in the will which came before the court in Power v. Cassidy (supra). The organizations which fell within the purview of the testamentary disposition could be ascertained without the slightest difficulty; and indeed no exercise of choice on the part of the executors is necessary, inasmuch as at the time when they are called upon to act, there is but a single corporation in existence which can be a recipient of the testator’s bounty.

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It is urged in behalf of the appellant, however, that Mr. Simson could not have intended the description in his win to apply to the North American Relief Society, to which he might have given the legacy specifically if he had so desired. But I do not think he meant to exclude this society from becoming the beneficiary. It had been organized on February 14, 1853, and was therefore less than four years old at the time the will was executed.

The testator might well doubt whether at the end of the ten, twenty or thirty years, that would very probably elapse before his gift over could take effect, this corporation would still exist as a responsible institution, carrying on its work. There is nothing in his will, however, to indicate a wish that it should not be the donee, if then in existence and responsible.

It has already been pointed out that by the terms of its charter, the purpose of the North American Relief Society is to establish a permanent fund, the interest of which shall be applied annually to the relief of the indigent Jews in Jerusalem.

The appellant contends that the statute under which the society was incorported (Laws 1848, chap. 319) does not authorize the formation of a corporation to establish a permanent fund. I find no provision in the act, however, which prohibits a corporation formed thereunder from preserving intact the principal amounts of such gifts as it may receive and devoting only the interests to the charitable or benevolent objects it is designed to promote; and chapter 428, of the Laws of 1881, expressly empowers benevolent and charitable corporations to retain and hold as investments any specific property, real or personal, donated to them.

The further suggestion is made that the North American Relief Society does not meet the requirements of the will because it is not expressly authorized by its charter “to ameliorate the condition of the Jews living in Jerusalem, by promoting among them education, arts and sciences, and by learning (teaching) them mechanical and agricultural vocations.” As to this point, it is to be noted, that the will merely expresses a desire, but does not impose a condition, that the interest on the principal fund shall be used in the particular modes specified. The charter of the North American Relief Society implies authority to relieve the Jews in Jerusalem, by the promotion of education among them as well as by other methods, for the right to afford relief to the indigent Jews of that city includes not only the power to bestow alms upon them, but the power to better their condition by the contribution of money to educational purposes for their benefit. It is argued that

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the relief of the indigent is charitable work, while the promotion of education is a work of benevolence. But this, distinction can hardly be admitted here, for it is evident that those who organized the North American Relief Society used the term “relief” in a sense broad enough to. comprise works of benevolence, as well as works of charity. According to the certificate of incorporation, they associated themselves “ into a benevolent and charitable society,” instead of organizing as a charitable society only.

The court below correctly decided that the objections urged to the claim of the North American Relief Society were untenable, and the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and Macomber, J., concur.