People v. Powers

—The second ground of demurrer is clearly not well taken, for several reasons. It does not appear upon the face of the complaint that there are any other charitable and benevolent institutions or corporations in the city of Bochester, other than those made parties. If there were, it does not appear that the demurring defendant is prejudiced by the nonjoinder. Anderton v. Wolf, 41 Hun, 571 ; 4 St. Rep. 101 . The plaintiffs are the people of the state, suing through the attorney general. The complaint says- that one Martha Dunlap, a resident of Bochester, died there on the 15th day of May, 1882, leaving a large estate, having previously made her will, dated March 22d of the same year. She had never married. Her only next of kin were two sisters, each owning an estate of over $100,000. It is stated that the defendantPowers had for many years had charge of the management of the estates of each of the sisters; had been their confidential and trusted adviser in regard to their affairs and custodian of their money and securities, and regarded by Martha Dunlap with especial trust and confidence. It is alleged that the defendant was himself, at that time, a man of large wealth, from which it is fairly to be inferred the testatrix felt no particular obligation to maké him the absolute devisee of her estate for his own benefit. The will which she made was drawn by the defendant, and, after some legacies, contained a bequest to the defendant of the rest and residue of her property, in trust for the testatrix’s sisters during their lives. Then follows the clause which has given rise to this litigation. It is as follows : “I give, bequeath, and devise unto Daniel W. Powers, of Bochester, N. Y., all the property given and devised by the eleventh clause of this will which shall remain after the execution and termination of the said trust at the death of said Nancy and Mary Dunlap. This gift and devise is made upon the trust and confidence reposed in the said Daniel W. Powers that he will dispose of the said property among the charitable and benevolent institutions or corporations in the city of

The defendant, it is alleged, was nominated as executor, was appointed by the surrogate, and took upon himself the duties of that office and reduced the estate to possession. No part of the indome of the estate of Martha Dunlap was used for the support of her sisters, their own property being ample for that purpose, and the last of the two sisters died, in 1889. The complaint then states that Powers never made any distribution of the estate of Martha, bequeathed to him by the above clause of her will, nor in any way acted in discharge of the trust,' nor even acknowledged it, but in the year 1892 he repudiated the trust and denied any obligation to distribute any part of the estate pursuant to it, and still so refuses and denies. The five defendants, other than Powers, are corporations organized for charitable and benevolent purposes in the city of Rochester, and in which Martha Dunlap had a special interest. It is alleged, further, that each of these corporations has either expressly refused or neglected to begin any suit for the establishment of the trust. Judgment is asked that the trust expressed in the foregoing paragraph of Miss Dunlap’s will be adjudged valid and enforceable, and for other relief which need not here be specified. There are other allegations in. the complaint, but they do not appear to be material upon this issue, whatever may be their bearing should there ever be a trial of the action.

The defendant Powers, in his demurrer, in addition to the charge that there is a defect of parties, objects that the complaint does not state facts sufficient to constitute a cause of action,' and in this way are raised the serious an'd interesting questions presented in the case. That the words, “This gift and devise is made upon the trust and confidence reposed in the said Daniel W. Powers,” etc., are sufficient, if other conditions exist, to create a trust, cannot be denied. Perry, Trusts, § 112; Bull v. Bull, 8 Conn. 47 ; Harrisons v. Harrison's Adm'x, 44 Am. Dec. 365 , 372, 373, note. These conditions are that the testator has pointed out with sufficient certainty both the subject-matter and the objects of the trust. The subject-matter is clearly stated. Can it be said that the testatrix has designated the objects with sufficient certainty ? Has she so designated them that the court can ascertain who they are ? For that is the test as established by the courts. Prichard v. Thompson, 95. N. Y. 76 ; Read v. Williams, 125 N. Y. 560 ; 35 St. Rep. 909 . But to sufficiently designate the beneficiaries it is not necessary that they be named in the will. If power is given to the executor to select the objects of the trust, it will be sufficient, provided the persons or corporations are- so defined and limited in the will that a court of equity would have power to enforce the execution of the trust, or, in default of a selection by the trustee, to decree an equal distribution among those from whom the selection might have been made. Such is the rule on the subject laid down by the courts of this stfite. Power v. Cassidy, 79 N. Y. 602 ; Holland v. Alcock, 108 N. Y. 312 ; 14 St. Rep. 761 . Obviously, the application of this very

He further says: “ They [the beneficiaries in the will] are distinct, and can readily be separated from the larger number of religious and charitable organizations of Flew York maintained by other Christian or benevolent bodies. They in fact constitute a limited and well-defined class; have each a distinct organization, and are bodies corporate.”

It appeared in that case that several Roman Catholic institutions in the city of FTew York were unincorporated,—a fact which, by the way, does not appear in the case at bar. But it was held by Judge Yax Yorst and by the general term that such fact was not important, so long as it appeared, as it did, that there were schools and institutions answering the description, incorporated and competent to take, because the presumption was the testator meant his trustees to select competent beneficiaries. Upon appeal, the court of appeals affirmed the judgment, holding that as there were organizations of the class specified capable of taking, and which could be ascertained, the provision was not void for uncertainty; that the fact that power was given to the executors to select the beneficiaries, and the share of each, did not impair the legality of the provision; and that the executors were limited to such organizations as were capable of taking. 79 N. Y. 602 . There is no difference in principle between that case and this, and hardly any

It was suggested upon the argument that the trust was invalid, because the objects of it were benevolent as well as charitable institutions, the argument being that, while a trust for charitable institutions might be sustained, yet one for benevolent institutions was too broad, and might include institutions other than those which the law recognizes as charitable, and that therefore so much of the devise as went for the benefit of benevolent institutions was invalid. The conclusion was drawn that, as all the estate might, at the discretion of the executor, be turned over to benevolent, as distinguished from charitable, institutions, the entire scheme was thereby made void. It cannot be denied that a devise for benevolent purposes alone does not create a charity, and is not valid. Chamberlain v. Stearns, 111 Mass. 267 . But the same court which so held has also decided that, when the word “benevolent” is used in connection with “charitable,” it is synonymous with it, and that a bequest to “benevolent or charitable” objects is valid. Saltonstall v. Sanders, 11 Allen, 446 ; Suter v. Hilliard, 132 Mass. 412 . Such I believe now to be the law of England, as pronounced by

Having reached the conclusion that the devise is valid, and that the defendant takes the property subject to the duty of disposing of it as directed by the will, the next question presented is whether this action can be maintained in the name of the people to enforce the trust. The objection to the action does not go to the jurisdiction of the court, for no one denies that the court has the jurisdiction to enforce this trust in an action of some kind. 1 Rev. St. p. 734, § 96; Perry, Trusts, § 694; Story, Eq. Jur. § 1191. The objection is that the people have set up no cause of action in their favor, and therefore are not proper parties plaintiff. It is undoubtedly true that the people, like all other parties to dictions, must show an interest in the subject-matter of the litigation before they can prosecute a suit. People v. Booth, 32 N. Y. 397 . But when that principle is admitted we do not advance a step in this discussion, for still there remains the question, what is such an interest in the subject-matter as entitles the people to sue? In this case, the people have no money to gain by a recovery. But the interest which entitles or requires the attorney general to sue in the name of the people may be something other than a right to the recovery of money or property. This appears from the fact that, without the direction of any statute, it was the duty of the attorney general, in the name of the people, to sue out writs of quo warranta, with or without a relator; to sue out writs of mandamus; to proceed by scire facias, to revoke grants improperly made, or forfeited by the grantee; to proceed in equity, if

Is this a proper case? It appears from the complaint that the donee of the power repudiates it, and refuses to carry it into effect, and claims the fund himself; that the five corporations named refuse to sue, although five years have passed of the six or ten which must elapse before their claim will be barred. That there are others than the five who might sue does not appear. If there are such, no action has been taken by them. The result of this is that the fund will speedily be lost, unless the people interfere. The five corporations undoubtedly might sue if they would. But they refuse. If they were private corporations, having no public duties, that would be the end of it; but they are" not that alone. Their duties are public, and such as the people have an interest in and can control. If they, having this fund in possession, had mismanaged or wasted it, or refused to apply it to the purposes of their trusts, the court, no doubt, would have the power to correct their action, or even to remove them. Perry, Tiusts, §744; Story, Eq. Jur. § 1191; Attorney General v. Parker, 126 Mass. 216 . The reason is that the people have an interest that the fund shall be devoted to the purpose for which the testatrix intended it. They have by law the right to the fund for public purposes. It is therefore their duty to take steps to procure it. If they refuse, and by that refusal the lose the fund, it is quite as much a breach of their duty as though, having it, they had misapplied it. I can see no difference in principle between the refusal of the charitable corporation to claim and collect a fund which is undoubtedly theirs,

It is said that the attorney general might have proceeded against these corporations under § 1781 of the Civil Code. Possibly that is true. But the statutory power given in that section does not in terms, or otherwise, affect or take away the duty of the attorney general to proceed under the provisions of the Revised Statutes, now incorporated into the executive law, or at common law, by prosecuting such suits as were necessary to protect the interests of the people. But a suit as provided by § 1781 would be of no avail. All that could be done under that section would be to charge the officers with the consequences arising from a breach of their trust. The fund here could not be reached. It is doubtful whether Powers could even be made a party defendant, in his capacity of executor or trustee. Such an action would by no means accomplish the purpose which is sought, or which the necessities of the case require. That purpose is to reach this fund and compel its application to the public purpose for which the testatrix intended it, and thus prevent its waste and misapplication. Not only the corporations who refuse to act, but the person who wrongfully withholds the estate that has been devoted to their use, must be made parties, that full relief may be granted. It can be done in this action, and because it can be so done, and done in no other, way, and because if not done the fund will be lost to public charity, I think this action can be maintained. The plaintiffs must have judgment on the demurrer, with costs, with leave to defendant to withdraw the demurrer and answer on payment of the usual costs. Ordered accordingly.