Majority
Headnote
1. Will—Construction of—Unlawful suspension of alienation.—The testator devoted the bulk of his estate to charity. He carefully explained in his will that he left neither wife nor children; that his brother and sisters and nieces were already in comfortable, if not affluent, circumstances; and so he felt at liberty, after some moderate gifts to them, to follow “the impulses of his own heart” and his “sense of duty” by devoting the rest of his property to the rescue and help of the unfortunate. Two of his nieces, Mrs. Schiefflin and Mrs. Beekman, accepted the disposition which he made, but his sister, Mrs. Chase, in her own right and as administratrix of the deceased brother, seriously disapproves, and is now here upon appeal seeking to wrest the property from the uses of charity, and, to that end, invoking the aid of established rules of law to destroy the trust created by the will, and break through its fences into the fortune which the testator at least intended to withold.
His primary purpose was to found and endow an institution to be denominated the Delaplaine Home for the Friendless. It was to be-situated in the city of Hew York. Its object, as it existed in his mind, was indicated only by its name, and his reference to a similar institution already incorporated and doing its charitable work. He says “my desire is that the object of the same and the class of persons to be relieved and benefitted thereby should be similar to the object and to the recipients of the charity of the institution in the ■city of Hew York now know as the Home for the Friendless, my wish being to make it similarly useful.’-’ ■ To accomplish his purpose he directs his executors to apply for and obtain from the legislature as early as practicable an act of incorporation; and in a codicil to the will recommends and directs that it be obtained before- the expiration Of ten years from his decease but repeats the injunction that it be -obtained as soon as possible. There seems to have been in his mind some lurking doubt of the validity of his trust, and some fear that collaterals might covet his wealth, and so he provides an alternative or substituted devise and bequest of the same residue to a number of existing charitable corporations which he names, “in the event” as he phrases it, “ that this bequest and devise-of my residuary-estate should be adjudged or prove invalid, or its execution be impossible, either by judicial decision or from any other cause.” The courts below have held that the gift to the corporation to be created is invalid because it suspends the absolute power of alienation beyond the statutory limit, and from that determination the executors have appealed. Those courts also decided that the substituted bequest to the charitable societies named was valid, and from that decision Mrs. Chase appeals. Two questions are therefore presented for "our consideration. . .
It does not save the gift that in the present case a Home for the Friendless could have been incorporated under the' general law, for such a corporation the testator did not intend or direct, but specifically required that his donee should be a corporation formed under a special charter. The restrictions in the general law made it inappropriate to-the testator’s design, but, whether so or not, we cannot substitute for his explicit direction something other and different and outside of his expressed purpose.
Nor does it help the situation to say that there was an equitable conversion resulting from the power of sale which, though discretionary, was claimed to be essential to the scope and plan of the will, and that the property treated as personal was not within the statute regulating trusts, as. was held in Gilman v. McArdle ( 99 N. Y., 451 ). That, doctrine does not reach or affect the prohibition of the statute against a suspension of the absolute ownership of personal property for more than two lives, and a power of sale does not avoid the statute when the resultant proceeds wear the same fetters as restrained the alienation of the land. In Bascom v. Albertson (supra), the whole residue covered by the bequest was of personal assets in this state* and if in the present case, the land be deemed money, the fundamental difficulty is not removed. I can discover no permissible escape from the conclusion that the primary devise for a new Home for the Friendless was invalid.
■Second. The next question respects the consequences of that conclusion. One would suppose, as the courts below have decided, that the alternative and substituted devises and bequests to the eleven charitable corporations would vest at the death of the testator; but in behalf of Mrs. Chase, it is argued that a suspension was contemplated: until_ the final judgment of the court, declaring the invalidity of the primary devise. I think we may make short work of that proposition.
The judgment of the court does not make or create the invalidity; it declares its existence at the date of the testator’s death, and eo instanti the alternative devises took
Third. But a third question, of a minor character as to the amount involved, is presented for our determination. By the codicil to his will the testator gave to his sister, Emily L. Fuller, two lots of land to be held by her in fee simple. She died in testator’s life-time, and the old rule that while lapsed bequests fall into the residue, lapsed devises do not, but go to the heir as undisposed of by the will, is invoked to carry the land to the heirs and take it from the charities.
I think that rule must be regarded as changed, and that there is now no reason for difference and so no difference between lapsed legacies and lapsed devises as it respects the operation upon them of a general residuary clause. Among the numerous reasons which have been assigned for the common law rule, some of which were always artificial .and unsatisfactory, the principal and most sensible one is well-stated by Learned, J., in Hillis v. Hillis ( 16 Hun, 76 ), and by Grover, J,, in Youngs v. Youngs ( 45 N. Y., 254 ). That reason was that the right to dispose of land by will, when regained after its loss, came in the form of a right to ■dispose of uses, and, since the appointment of uses was a present act, the power to devise was held to apply at the date of the will or of the disposing act, and so the residuary clause would cover neither lapsed devises nor after acquired .lands. This reason wholly disappeared when our statute made the will speak from the testator’s death both as to real and personal property. It provides that where a testator in express terms devises all his real property or indicates liis intent to dispose of it all, the will shall be construed to ■pass all which he was entitled to devise at the time of his death. 2 R. S., 57, § 5.
As I read the case of Youngs v. Youngs, the lapsed devise was carried to the residue upon two grounds: one, that the rule as to lapsed devises, had become the same as to lapsed legacies, and the other, that a contingent remainder framed by the will was wholly undisposed of unless covered by the devise of the residue. The same opinion as to a change in the rule is expressed in Hillis v. Hillis, though it was deemed not essential to the result finally reached. The
Since in the event which has happened of the vesting of the residue in the eleven charitable societies there was an imperative direction for the conversion of the real estate into money and a gift of the proceeds, it follows that the rents and profits go with the residue to the ultimate legatees. Lent v. Howard, 89 N. Y., 169 .
The judgement should be affirmed, with costs to all parties payable out of the estate.
All concur.