In re the Will of Ingersoll — 34 N.Y. St. Rep. 148

Majority

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In the Matter of the Will of Almira Ingersoll, Deceased.

(Surrogate’s Court, Cattaraugus County,

Filed December 3, 1890.)

Headnote

Will—Bequest bob chabitable uses.

The will of testatrix declared her wish to aid in carrying on the work of the Christian ministry, to uphold the doctrine and faith of the Bihle, and to aid in extending the Christian religion in the world, authorized her executor to expend not exceeding §1,000 through the agency of the Baptist church and its various societies, and in order that he might do so without hindrance bequeathed said sum to him, his heirs and assigns, “for the uses

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and purposes above stated.” Held, that this was not an absolute gift to the executor, but one in trust for the purposes mentioned, and that the clause was void for uncertainty.

Construction of will.

W. S. Thrasher, for ex’r; F. J. Blackmon, for legatees, contesting.

The construction of the eighth clause of the will of testatrix is put in issue in pursuance of § 2624 of the Code of Civil Procedure.

The clause reads as follows :

“ I am desirous of leaving some of my estate to aid in carrying on the work of the Christian ministry, and to uphold the doctrine and faith of the Bible, and to aid in extending the Christian religion in the world through the instrumentality of the preaching of the gospel of Christ, and desirous of promoting these purposes I do hereby authorize and empower my executor hereinafter named to expend, through the agency of the Baptist church and its various societies, missionary and educational, or in such other way' through the said church or its organizations as shall be deemed best likely to promote these purposes, such sum as he may deem best, not to exceed $1,000, and in order that my executor may be enabled to do so without hindrance, I give and bequeath to him said sum of $1,000, and the sum is to him and his heirs and assigns for the uses and purposes before stated, and I rely upon him to carry out the wishes and purposes that I have hereinbefore indicated, and that those interested in my estate will cooperate in carrying on the work that I, by this bequest, desire to promote.”

When simmered down this clause means that the testatrix bequeaths to the executor $1,000 for the promotion of the Christian religion through the agency of the Baptist church and its various societies, missionary, educational or others that may be designed to carry out the object stated The clause is void for uncertainty. It is impossible to determine who is the legatee. No beneficiary, no definite corporation can enforce its payment, and this is one of the essentials to render a bequest valid. Levy v. Levy, 33 N. Y., 97 -107.

The testatrix seeks, 1st, “to aid in cafrying on the Christian ministry;” 2d, “to uphold the doctrines and faith of the Bible,” and 3d, “to aid in extending the Christian religion.” And for the purpose of rendering effectual this bequest she authorizes her executor to expend “ through the agency of the Baptist church ” and its various organizations not to exceed $1,000.

The purposes for which this money is to be expended are not precisely stated. Testatrix evidently had in mind the advancement of the religion of Christ, but any society within the pale of the Baptist church wherever located, or whatever its special work may be, could claim to be the recipient of the bounty of the decedent. It is hot the Baptist Church of Leon, where testatrix resided, not the organizations of that society in Cattaraugus county, not of New York state, not any particular branch of the

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church, but its various societies, etc.; if the bequest had been to all those believing in the rite of baptism as a saving ordinance it would have been as easy to ascertain the precise beneficiary as in this will. In neither case could any one receive the legacy.

In Prichard v. Thompson, 95 N. Y., 76 , the will directed the distribution of the fund among such incorporated societies in the states of Mew York and Maryland as were authorized to receive and hold funds for charitable and educational uses as the executor might select. The court, in holding the bequest void, say, at page 81:

“The beneficiaries referred to, consisting of every corporation within two states of the character named in- the will, would be almost innumerable, and none of them could claim that any specific portion of the bequest belonged to them. * * * It is a well settled and established rule that where a gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree, the representative of the donor must prevail over the charity. Williams v. Williams, 8 N. Y., 526 . "Within the rule stated it is quite obvious that insuperable obstacles exist which prevent a distribution of the fund intended to be created by the- testator’s will, and that by reason of a want of precision and certainty in the bequest made and the difficulty in the selection of those who would be entitled to be benefited thereby, it cannot be carried into effect. Mo case in this state goes so far as to hold that such a bequest is valid and effectual and capable of being executed Within the well established rules of law which are applicable to the doctrine of charitable uses and trusts.” See, also, Holland v. Alcock, 108 N. Y., 312 ; 14 N. Y. State Rep., 761; Matter of Will of O'Hara, 95 N. Y., 403 .

These cases plainly limit Power v. Cassidy, 79 N. Y., 602 , upon which counsel for the executor relies, and they are decisive of this cáse.

The counsel for the executor urges that no trust is created by this clause of the will, but the bequest is directly to the executor, and the direction for the expenditure of the money is surplusage, leaving it optional with him to retain personally or use the funds for the purposes stated. I cannot spell that construction from this clause.

While the bequest purports in one phrase to be to the executor, “ his heirs and assigns,” it is especially limited to the objects above set forth. It is not an absolute gift to the executor,.but the whole scope of the clause is that the testatrix had in view the promotion of Christianity and never contemplated that the executor was her beneficiary or that he was to determine whether or not the money was to be expended. Eliminate from this clause of the will everything implying a bequest for a charitable purpose and it will be stripped of every significant direction or suggestion contained in it.

The cases cited by counsel upon this branch of the controversy I do not regard as applicable. They hinge upon a bequest to a person by name coupled with precatory words indicating a wish of decedent that her property be expended by the donee in a way

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designated. The courts hold the legacy is absolute, that no trust is created and her suggestions as to the expenditure of her moneys do not limit the positive character of the gift or impose any legal or enforceable obligation upon the beneficiary. The entire tenor of this will so far as this clause is concerned is that the executor in that capacity is the repository of this fund. That she is not in any sense referring to the individual but to the trustee, and the legacy is not to Senator Allen, but the discretion in explicit terms is invested in the executor, showing unmistakably he was simply the medium chosen by her to make effective this last testimonial to her religion.

A decree will be entered in accordance herewith-nullifying this clause for uncertainty, and providing for the probate of the will with this exception. The costs will be adjusted and inserted in the decree.