Cottman v. Grace — 20 N.Y. St. Rep. 783

Majority

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Thomas D. Cottman, as Executor, etc., v. William R. Grace.^[1]

(Court of Appeals,

Filed January 29, 1889.)

Headnote

1. Will—Cokstruction of—Trusts—Perpetuities.

The testator, by the first clause of his will, gave his library, books, pamphlets, etc., “to the mayor of the city of New York and the president of the New York Academy of Medicine and the president of the College of Physicians and Surgeons of New York and their successors,” to have and hold the same in trust forever for the uses and purposes of a public library with special directions that it should be open to the “public of all classes for their free use,” etc., and that the said library be forever maintained as a sepa ate, exclusive and distinct institution, to be forever known as “ The Mcllvaine Library,” and be kept free from all amalgamations or admixtures with any other library < olloetions or institution. By the second section the te tutor gave and devised to his executor all his real and personal property, except the said library, and directed him to sell and dispose of the same, and out of the proceeds first to pay his debts and funeral expenses; second, invest sufficient to produce an annual in

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come of $400, to be divided among certain life annuitants, the principal sum on their death to fall into his residuary estate; and third-, to pay overall the_ rest, residue and remainder of said proceeds to the “trustees of my said library hereinbefore named” who were directed to invest such proceeds in purchasing or renting “suitable accommodations” for said library and in certain specified stocks or securities, and use and devote the income from such investments to its establishment and maintenance.. Held, that the scheme of the will was to vest the title absolutely in the individuals who from time to time should occupy the official positions mentioned and who were constituted the trustees, and not the corporations of' which they were officers, and the trust attempted to be created is invalid, and void, being in violation of the statute against perpetuities. Haidce v. Maniee, 43 IT. Y., 314, distinguished.

3. Same—Charitable uses—English law as to not operative in New York.

The English law of charitable uses never became a part of the law of the state of New York. The validity of trusts for objects which were-denominated charitable under the English law are in this state governed by the same rules by which the validity of trusts for other purposes are determined.

'8. Same—Language of.

Where the language of a will is plain and unambiguous, the court is. not permitted to wrest it from its natural import in order to save a provision from condemnation.

Appeal from a judgment of the supreme court, general term, first department, reversing a judgment decreeing the will valid, rendered at a special term thereof.

Thomas Thacher, for app’lt; D. J. Dean and J. A. Mc-Creery, for resp’t.

The scheme of the testator, as disclosed by his will, was to devote his entire estate, after payment of his debts, to the establishment and perpetual maintenance of a public library, to be known as 1 ‘ The Mcllvaine Library.” This schemehe sought to accomplish by constituting trustees in whom, and their successors indefinitely, all his property should presently or ultimately be vested in trust for the purpose specified. The testator, at his death, owned a library and other personal property and real estate-in the states of New York and Ohio..

By the first section of the will he gave his library, books,' pamphlets, maps, documents, papers and all things thereunto-appertaining, to “the mayor of the city of Yew York and the president of the Yew York Academy of Medicine and the president of the College of Physicians and Surgeons of Yew York and their successsrs,” to have and to hold the same in trust forever for the uses and purposes of a. public library, with special direction that it should be open to the “ public of all classes,” for their free use, without any restrictions except orderly conduct and good behavior, and that “the said library be forever maintained as a separate, exclusive and distinct institution, to be forever known as ‘The Mcllvaine Library,’ and be kept free

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from all amalgamations or admixtures with any other library collection or institution.’’

By the second section the testator gave and devised to his executor all his real and personal property, except the said library, and directed him to sell and dispose of the same, and out of the proceeds: ’

First. Pay his debts and funeral expenses.

Second. Invest sufficient to produce an annual income of $400, to be divided among certain life annuitants, the principal sum on their death to fall into his residuary estate; and, third, to pay over all the rest, residue and remainder of said proceeds to the “trustees of my saidlibrary hereinbefore named,” who were directed to invest such proceeds in purchasing or renting suitable accommodation© for said library, and in certain specified stocks or securities,, and use and devote the income from such investments torts establishment and maintenance.

The validity of the trust attempted to be created in the-will is the question in controversy. It is conceded that the will is to be construed as a will of personal property only. It is plain that the direction to the executor to convert the real and personal estate, except the library, into money, for the purposes of the will, viz.: the payment of debts, the investment of a fund for the payment of annuities, and the residuary gift (which in terms is of the proceeds of the sale), operated as an equitable conversion of the real estate into personalty as of the time of the death of the testator. Fisher v. Banta, 66 N. Y., 468 ; Lent v. Howard, 89 id., 169.

The validity of the trust which the testator sought to establish is assailed -on the ground that the scheme of the will transgresses the law of perpetuities in that it attempts to vest in the mayor of the city of New York, the president of the New York Academy of Medicine, and the president of the College of Physicians of the city of New York, and in their successors in these offices respectively, as individuals, the title to personal property upon a trust which suspends the absolute ownership for a period not measured by lives, but for all time, in contravention of the statute which prohibits such suspension for a longer period than during the continuance of not more than two lives in being at the death of the testator. 1 R. S., 773, § 1.

It cannot, I think, be doubted that upon the construction of the will claimed by the appellant, viz., that the individuals who from time to time should occupy the official positions mentioned were constituted the trustees, and not the corporations of which they were officers, the trust attempted to be created is invalid and void. If the law of

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charitable uses which prevailed in England prior to our revolution was never in force in this state, there is not much question but that a gift for a free public library would be regarded as a charitable use, and that the trust in question although vested in individuals with a provision for perpetual succession would not be within the rule of perpetuities governing legal limitations of real or personal property. As a general rule trusts for charity did not fail either from the incapacity of the designated trustee to take, nor for the indefiniteness of the object, nor were they subject'to the statute of perpetuities. Lewin on Trusts, 20 (8th ed). But it has been finally settled that the English law of charitable uses never became a part of the law of this state (Holland v. Alcock, 108 N. Y., 312 ; 14 N. Y. State Rep., 761), and the validity of trusts for objects which were denominated charitable under the English law are in this state governed by the same rules by which the validity of trusts for other purposes are determined.- The statute limits the.period during which the power of alienation of real property and the absolute ownership of personal property may be suspended. It can no more be suspended beyond the prescribed period by a trust than by a limitation of a strictly legal- estate. Gilman v. Reddington, 24 N. Y., 9 ; Lewin on Trusts, 97 (8th ed.).

The question in either case is whether the suspension is measured by two lives, and in some cases a minority in addition. If continued for a longer time the trust, or the legal estate attempted to be created, is void by force of the general statutory rule, unless the particular case is exempted from its operation by special statutory enactment, or by implication, as in case of gifts to corporations authorized to take by gift or devise.

The case of Adams v. Perry ( 43 N. Y., 487 ) is a very precise authority that the trust in question, if construed as vesting the trust estate in the mayor of New York and the presidents of the two societies named, and their successors, as individuals, is unauthorized. Upon that construction the testator undertook to convey his estate to individuals, to hold the same upon the specified trusts in perpetual succession, thereby during all time suspending the absolute ownership of the property.

Any disposition of the corpus of the estate by the trustees, except for re-investment, would be in contravention of the trust, and a breach of their duty.

In Adams v. Perry, the testatrix, whose will was there under consideration, directed her executor to sell her residuary real estate and invest the proceeds, together with the proceeds of her personal estate, in bonds and mortgages or ■other securities, and to pay the annual income to the “ Low-

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ville Academy,” an incorporated institution, and provided for a succession of trustees through an appointment of successors by the supreme court, on the decease of her executors. The court held that the trust was invalid as an unlawful perpetuity, although it was conceded that if the bequest had been made directly to the corporation, it would have been free from objection, as the corporation under its charter was authorized to take by devise for the purposes, specified in the trust.

In Williams v. Williams ( 8 N. Y., 525 ), it was substantially conceded by Judge Denio (p. 554), that a bequest to individuals and their successors on a perpetual trust, would, except in a case of a charitable trust, be void as an unlawful suspension of the ownership of personal property, and he sustained the bequest on that point on that distinction, which distinction, however, has in subsequent cases been overruled.

On the remaining question, whether the testator intended to constitute the individuals who in succession, from time to time should occupy the positions of mayor of New York, president of the New York Academy of Medicine, and president of the College of Physicians and Surgeons of the city of New York, his trustees, to establish and manage the library, or, as is claimed by the respondents, he intended that the corporations of. which such persons should be officers, should take the bequest and administer the trust in their corporate capacity, we entertain no doubt. The language used is inappropriate to express an intention to vest-the title to the fund in the corporations themselves, while it. is very apt as a designation by description of presumably suitable persons, who in succession should be the trustees to carry out the purposes of the trust.. The testator desired to perpetuate his own name as the founder of a public library, and made careful provision that it should be separately-kept and maintained without, as he says, “ admixture or amalgamation with any other library, collection or institution.” It w*as the persons described by their official designation, and their successors whom he constituted trustees. The corporations with which they were connected were of unlimited duration, and presumably could have no successors, but the individuals who should be chief officers at any time, would be succeeded by others. It was certainly quite natural that the testator should believe, in view of the object of the gift, that some at least of the persons designated, would be willing to assume the position of trustees of the library during their official tenure.

This arrangement would be likely to secure a safe and efficient management, while on the other hand, to impute to the testator the intention to make the three corporations-

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specified the trustees, would charge him with the construction of a scheme, the administration of which would be attended with much difficulty and complexity, tending to subvert his primary purpose of making the library a separate and independent institution. The three corporations, acting by separate and independent boards, would be a very cumbrous machinery for conducting a public library. The other view of the testator's intention is the natural one, and is in precise accordance with his language, and where the language of a will is plain and unambiguous we are not permitted to wrest it from its natural import in order to save a provision from condemnation. The law permits a testator to tie up his property upon certain prescribed limitations, and one of them forbids a perpetuity, and in interpreting a will with reference to this condition “we must do exactly in the same way as if the rule against perpetuity had never been established, or was repealed when the will was made, not varying the construction in order to avoid the effect of that rule, but interpreting the words of the testator wholly without reference to it.” Parke, B., in Dungannon v. Smith, 12 Clk. & Fin., 599; see, also, Van Nostrand v. Moore, 52 N. Y., 12 ; Earl of Hardwicke v. Douglas, 7 Clk. & Fin., 815.

The respondent cites a class of cases, of which Manice v. Manice ( 43 N. Y., 314 , 387) is a type, in which it was held that a bequest to “the treasurer, for the time being, of Yale College ’ ’ was a gift to the college. The intention that the college should be the beneficiary, and not the person who might be treasurer when the will took effect, was very manifest. The bequest was absolute and not in trust. The selection by description, of trustees who might be unknown to the testator, where a perpetual trust is created, was natural, but an absolute bequest to unknown persons, by their official description, would be scarcely less than absurd.

We are of opinion that the special term gave the proper ■construction to the will in question.

This leads to a reversal of the judgment below and an affirmance of the judgment of the special term.

All concur.