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Kennedy v. Town of Palmer

1 Thomp. & Cook 581 Court N.Y. Gen. Term English

Delivered by Mullin, P. J.

Contents

Majority

p. 581
Kennedy, ex’r, etc., appellant v. Town of Palmer.

Headnote

Conflict of law—validity of bequest governed by law of the domicile of legatee — suspension of power of alienation.
A testator, residing in New York, bequeathed $1,000 to a town in Massachusetts, directing the same to be invested and the interest only to be used for the benefit of the poor of such town. Held (following Chamberlain v. Cha/rnberrlain, 43 N. Y. 424 ), that the validity of such bequest is to be determined by the laws of Massachusetts and not those of this State.
The bequest vested the title to the amount bequeathed in the town upon the 1 death of the testator, and a direction as to the mode of its management would not render it invalid under the statute relating to perpetuities. Wetmore v. Barker, 52 N. Y. 450 .
Appeal from a decree and judgment of the court at special term sustainining as valid a bequest made by Calvin Thompson, deceased, late of Eaton, Madison county, to a town in Massachusetts.
The clause of testator’s will containing the bequest is as follows: “ I give and bequeath to the town of Palmer, Hampshire county and State of Massachusetts, the sum of one thousand dollars for the benefit of the poor of said town, said sum of one thousand dollars to be kept invested and the interest thereof only to be paid over and used for the benefit of the poor of said town. Said sum to be
p. 582
invested by the proper officers of said town of Palmer and to be paid over to them by my executors.”
At the trial it was admitted that the town was duly incorporated under the laws of Massachusetts, and it was proved that under said laws such'town was authorized to take bequests of personal property in trust for the benefit of its poor, and to invest such bequests and to use and pay over the interest only for the benefit of such poor.[1]
p. 583
Alfred G. Goxe, for appellant.
The validity of the legacy must be tested and determined by the laws of New York. Knox v. Jones, 47 N. Y. 389 ; White v. Howard, 46 id. 144; Bascom v. Albertson,
p. 584
34 id. 586; Levy v. Levy, 33 id. 137; Petersen v. Chemical Bank, 32 id. 44; Dodge v. Pond, 23 id. 69, 76; Holmes v. Remsen, 4 Johns. Ch. 460 ; Wood v. Wood, 5 Paige, 596; Schultz v. Dambman, 3 Bradf. 379 ; Desesbats v. Berquiers, 1 Binn. 336 ; Dixon v. Ramsey, 3 Cranch. 319 ; Harrison v. Nixon, 9 Pet. 483 ; 2 Kent’s Com. 429, note a; 1 Jarman on Wills, 4-12 (4th ed.); 1 Redf. on Wills, 398, § 9 (2d ed.); Story Confl. of Laws, §§ 479, 466, 468; 2 Story Eq. Juris. §§ 1068-1074; Hill on Trustees, 454; Curtiss v. Hutton, 14 Ves. 541; Whitford v. P. R. R. Co. 23 N. Y. 471 ; Bank of Augusta v. Earle, 13 Pet. 519 ; Runyan v. Coster, 14 Pet. 122 . The rule that the law of the testator’s domicile governs the disposition of personal property is the law at the present time. The opinion of Judge Allen- in Chamberlain v. Chamberlain, 43 N. Y. 424 , is the only exception, and that is not supported by his associates in the Court of Appeals upon the point in question. Bascom v. Albertson, 34 N. Y. 584 ; Knox v. Jones, 47 N. Y. 396 ; White v. Howard, 46 id. 159. The bequest is in contravention of the statute forbidding perpetuities. 3 R. S. 75, §§ 1, 4 (5th ed.); Yates v. Yates, 9 Barb. 324 ; King v. Rundle, 15 id. 140; Levy v. Levy, 33 N. Y. 124 ; Chamberlain v. Chamberlain, 3 Lans. 379 ; Gott v. Cook, 7 Paige, 523; Schettler v. Smith, 41 N. Y. 335 ; Banks v. Phelan,
p. 585
4 Barb. 80 ; Hawley v. James, 16 Wend. 62 ; Fontain v. Ravenel 17 How. H. S. 389.
G. M. Dennison, for respondent.
The validity of the bequest is to be determined by the laws of Massachusetts. Chamberlain v. Chamberlain, 43 N. Y. 424 ; Oliphant v. Hendrie, 1 Brown Ch. 571; Mackintosh v. Townsend, 16 Ves. 330; Attorney-General v. Lepine, 19 id. 309; Emery v. Hill, 1 Russ. 112; Minet v. Vulliamy, id. 113 note; Fordyce v. Bridges, 2 Phillips, 515 . The bequest is good under the laws of Massachusetts. Webb v. Neal, 5 Allen, 575 ; Dexter v. Gardner, 7 id. 243; Phillips Academy v. King, 12 Mass. 546 ; Going v. Emery, 16 Pick. 107 ; Burbank v. Whitney, 24 id. 154 ; Nourse v. Merriam, 8 Cush. 11 ; Earle v. Wood, 8 Cush. 430 . The bequest being to a charitable use is good under the laws of this State. Williams v. Williams, 8 N. Y. 525 ; Tucker v. Rector St. Clement Church, id. 558 , note a; Andrews v. Theological Seminary, id. 559, note 1 .

The court of appeals in Chamberlain v. Chamberlain, 43 N. Y. 424 , decided that the validity of a bequest by a resident of this State is to be determined by the law of the domicile of the legatee, and not by the law of the domicile of the testator.

By the will in that case the residue of the testator’s estate, after paying debts and certain legacies, was required to be divided into two equal parts, one of which was required to be paid to the Centenary Fund Society of the Erie Annual Conference of the Methodist Episcopal Church, to be kept by said corporation invested and kept permanently invested, and the interest and income thereof used and expended by said corporation for the benefit of Allegany College at Meadville, Penn., in such manner and for such specific purposes as said corporation shall direct. The other part was required to be paid to the trustees of the Chamberlain Institute, to be by said trustees permanently invested in bonds and mortgages—the principal to be kept permanently invested, etc., etc.

The Centenary Fund Society was incorporated under the laws of Pennsylvania, and was authorized to take and hold lands, money, etc., given and bequeathed to them, to be employed and disposed of according to the objects or the tastes and condition of the organization, etc.

The objects and purposes of the corporation were for the better

p. 586
securing of funds to be raised to the charitable purposes of the relief, etc., of certain preachers and others, and for the support of liberal education under the direction of said conference.

The bequest to this society was claimed to be invalid, because it created a perpetuity—that is, it suspended the absolute power of alienation for a longer term than two lives in being at the death of the testator, and by the laws of this State each bequest was void.

It was held, 1st, that the validity of the bequest must be determined by the laws of Pennsylvania, and not by the laws of this State.

2d. That the society had the power to take the bequest; and,

3d. As it did not appear that'the laws of Pennsylvania prohibited perpetuities, that if the bequest was void by the laws of this State, it would be nevertheless valid if not prohibited by the laws of Pennsylvania. It is shown quite conclusively by the opinion of the learned judge who tried the cause, that the town of Palmer has the capacity to take the bequest by the laws of Massachusetts, and it therefore follows, under the case of Chamberlain v. Chamberlain, the bequest to said town is valid.

The court of appeals, in Wetmore v. Parker, have decided that a bequest to the Orphan Asylum of Utica of $25,000 was valid, notwithstanding it required said sum to be perpetually invested by the trustees, and its proceeds used for the benefit of the asylum. The corporation had authority to take for its purposes, by gift, devise, etc., hold real estate to an amount not exceeding $150,000. The validity of the bequest was denied on the ground that it suspended the absolute power of alienation longer than was permitted by law. But the court held that the gift took effect instantly on the death of the testatrix, and the title vested absolutely in the corporation and the direction as to the mode of management of the principal after that did not impair the validity of the bequest. Wetmore v, Parker, 52 N. Y. 450 .

The judgment must be affirmed.

Smith, J., concurs.

Judgment affirmed.

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