In re Hallgarten — 2 N.Y. St. Rep. 82

Majority

p. 82

Matter of Julius Hallgarten.

(Supreme Court, General Term, First Department,

Filed June 1, 1886.)

Headnote

1. Will—Charitable bequests—When such bequest to. an unincor-

porated ASSOCIATION OR SOCIETY IS VALID.

A bequest to the “Hewsboys’ Lodging House in the city of New York,”" an unincorporated department of the Children’s Aid Society, is valid.

2. Same—When sustained as gift to parent corporation.

The rule that bequests to an unincorporated voluntary association are void, does not apply where the association is a branch or department of an incorporated society’s work, without separate organization. In such a case a legacy will be sustained as a gift to the parent corporation, even though that corporation is named in the will as a legatee under its proper designation. Betts v. Betts, 3 Abb., 317 ; and First Presbyterian Society v. Bowen, 21 Hun, 389 ; distinguished.

Appeal from a decree of the surrogate.

Hoffman Miller, for respondent.

Charles E. Whitehead and Stanley W. Dexter, for appellants.

Julius Hallgarten, the testator, by the sixth clause of his will bequeathed a number of legacies to charitable institutions, payable out of the residue of his estate, and among others the following:

“To the Children’s Aid Society, city of New York, five thousand dollars.”

“To the Newsboys’ Lodging House, city of New York, five thousand dollars.”

Upon the hearing before the referee it was proved that the Newsboys’ Lodging House was not incorporated but was a department of the Children’s Aid Society, well known and recognized by the legislature. And further, that its management was under the same board which controlled and managed the affairs of the Children’s Aid Society, although separate officials acted, who reported to that board.

And further that many bequests had been made to the Newsboys’ Lodging House as distinct from the Children’s Aid Society. The referee found, and so reported, that the lodging house was unincorporated, but a branch of the Children’s Aid Society and under its management and direction, and was a distinct department of the society’s work, the reports and accounts being kept separate from the general accounts of the society. He held, however, as a conclusion of law that it had no capacity to take by devise or bequest; that it must take if at all by virtue of its being a department of the Children’s Aid Society, and on the

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theory that the testator intended the legacy given to the1 lodging house to pass to the Children’s Aid Society; and that he was unable to distinguish this from the case of Belts v. Betts ( 4 Abb., N. C., 317 ), and the legacy mush therefore fail. The learned surrogate confirmed the report on the adjudication mentioned and that of the First Presbyterian Society v. Bowen ( 21 Hun, 389 ). In the first of these cases a bequest was given to the Marine Bible Society, which it was said was not saved, although that society was auxiliary to the American Bible Society, and this for the reasons that provision was specifically made in the will for the corporation and the auxiliary society had its own organization and officers. The Newsboys’ Lodging House has no organization except under the parent corporation by which it is managed and controlled.

The second case is one in which a trust was created, the interest of the fund to be employed, when needed, to improve ground used as a cemetery. The bequest was held to be void because it was to an unincorporated association, and the trust invalid because there was no trustee named to take the bequest, on the well-settled principle that there can be no valid trust unless there be a certain donee or beneficiary. There was no legal legatee capable of applying the income to the supposed secondary purposes.

In the Children’s Aid Society v. A. Stewart Walsh et al. (see MSS. opinion), the legacy was to the trustees, for the time being, of the Newsboys’ Home, No. 39 Park Place, in the city of New York, and it was conceded, as herein, that the home was maintained by the plaintiff:, and that the testator was a frequent visitor to it. The learned judge, in disposing of the question, said" there were numerous cases where persons had been allowed to take, though not correctly named in the will, because such persons conformed to the description of the beneficiary named by the testator. He cited two cases as illustrative of this view, namely, the N. Y. Ins. for the Blind v. Ex’r ( 10 N. Y., 84 ) and Lefevre v. Lefevre ( 59 N. Y., 434 ). _ In the latter case the bequest was to the Home of the Friendless in New York, but there was no institution of that name, and the legacy was claimed by “ The American Female Society ” on the evidence given, that the society had acquired and used the names of “Home of the Friendless” and “Homefor the Friendless.” The court held that the evidence thus given was properly received. The court said that a corporation might be designated by its own name or any name by which it could be distinguished from every other corporation. And when any but the corporate name was used, the circumstances to enable the court to apply the name or description to a particular corporation, and identify it as the body intended, and to

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distinguish it from all others and bring it within the terms of the will might, in all cases, be proved. In this case the evidence established conclusively that the Newsboys’ Lodging House was, in fact, the Children’s Aid Society, acting under another name in carrying out the design of its incorporation. A boys’ lodging house, it can be readily perceived, is a children’s aid, furnishing them with a place to sleep. It is true that the society receives a donation also, and this may be said to be conclusive of the intent of the testator to make but one donation to the society, no matter what different forms or modes of administration it might have adopted; but this does not necessarily follow, for the testator had a decided interest in the Newsboys’ Lodging House, designated by him, and may well have given the sum mentioned for particular application to it, while the legacy to the parent society was intended for its general work throughout the city—to be used in all the various modes in which aid could be extended to children—either through lodging houses or otherwise. The evidence, indeed, shows that he was in the habit of contributing specially to the Newsboys’ Lodging House, and was a constant subscriber to both the Childrens’ Aid Society and the lodging house after visiting the latter, and, therefore, knew of their relations to each other.

For these .reasons the decree of the surrogate should be reversed, as far as it relates to the legacy of the Newsboys’ Lodging House, the legacy thereto be declared valid, and directed to be paid to the Children’s Aid Society.

The costs of the controversy should be paid out of the fund.

Daniels, J. This case is one presenting serious grounds for doubt, as to its legal disposition. But for the present this doubt, under the circumstances, may justly be solved, as it is suggested in the opinion of Justice Brady. I therefore agree to the determination directed by him.