Booth v. Church

• Decision Date: 14 April 1891
• Citation: 126 N.Y. 215,28 N.E. 238
• Parties: BOOTH et al. v. BAPTIST CHURCH et al.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 215

28 N.E. 238

BOOTH et al.

v.BAPTIST CHURCH et al.

Court of Appeals of New York.

April 14, 1891.

Appeal from supreme court, general term, second department.

Henry M. Taylor, for appellants.

Frank Hasbrouck and Homer A. Nelson, for respondents.

FINCH. J.

John Guy Vassar made his last will and testament, declaring his general purpose at the beginning of his dispositions in these words: ‘Having no lineal heirs, my desire and aim in the disposition of my property are to do the most good, and to forward the cause of humanity.’ His collateral relatives, mostly cousins and to the number of about 15, availing themselves of their legal right to warp his purposes, and divert to their own use what he devoted to charity, have assailed all the substantial dispositions of the testator as illegal and invalid. The provisions for the benefit of Vassar College have in part been saved from the risks of the litigation by a compromise, and have been withdrawn from the peril to which they were originally exposed; but enough of the dispositions remain to involve a very large portion of the estate, and to require of us a determination as to their construction and validity.

The testator attempted to give to the ‘John Guy Vassar Orphan Asylum’ a large amount of real and personal property. When he made his will, and at the date of his death, no such institution had been incorporated or come into existence. To meet that difficulty, the will directed that the executors, as soon as practicable, should procure from the legislature an act of incorporation under which the institution should be organized, and thereupon the property devised and bequeathed should be transferred to it. The executors obeyed the direction. Such an act was passed about four months after the testator's death, and the corporation at that time created claims to be entitled to receive his intended bounty. The collaterals object that the devise and bequest are void, as suspending the power of alienation of real, and the ownership of personal, property for an indefinite period, not measured by lives in being. The authorities in this court, from Leonard v. Burr, 18 N. Y. 107, to Cruikshank v. Home for the Friendless, 113 N. Y. 337, 21 N. E. Rep. 64, fully support the contention of the next of kin. They hold, in substance, that such suspension may be effected either by the creation of a trust which renders the property inalienable while the trust-estate continues, or by creating a future estate by way of executory devise or contingent remainder. Of the latter class of cases it was said that, ‘as it cannot be known in whom the future estate will ultimately vest, and as the person in whom it will so vest may not be in existence, no person can convey an absolute fee.’ Under the present will, the attempted gift was both executory and contingent. The devisee and legatee was not in existence. The will contemplated its future creation, but by an independent authority, which neither the testator nor his executors could control, and which might for 50 years or forever refuse an act of incorporation. During all that period the power of alienation and the absolute ownership would be suspended, for no person could convey a perfect and absolute title. Two efforts in this case have been made to obviate the difficulty and answer the objection,-one by the special term, whose opinion was adopted by the general term on appeal; and the other by the counsel for the orphan asylum on the argument at our bar. The learned judge at special term maintained, as I understand his opinion, that upon the death of the testator the property went to the executors in trust to pay debts and funeral expenses, then to pay legacies, and finally to distribute; that the testator had not extended the time for distribution; that the legal title remained in the executors for the purposes of the trust until the time for distribution came; and that it then went to the orphan asylum, which at that time was incorporated and capable of taking. Without attempting to discover the exact doctrine intended to be expressed, it is at least obvious that no trust in the executors was created, and no trust-estate vested in them; that they held the property simply as executors, without title to the land or ownership of the legacies. In one sense their position was that of trustee, because of their official agency, but it is a novel suggestion that, where no express trust has been created, the executor nevertheless takes one by implication, in order to pay debts and legacies and make distribution. We need not pursue the subject, however, since the counsel for the orphan asylum not only admits, but vigorously asserts, that the testator created no trust in the executors, and vested in them no estate, and that they held simply in their official capacity and under the law. The special term opinion seems further to be founded upon an idea that the will postponed the vesting until the time of distribution, and so the case is like Shipman v. Rollins, 98 N. Y. 311. The will did postpone the vesting for some indefinite period of time, and that is the exact difficulty which we encounter. During that period the ownership of the fund bequeathed is in abeyance. It is not in the executors, of course. It is not given to the next of kin, but bequeathed away from them. They do not take it by descent, unless the bequest is void. The legatee had not come into existence; and so, if we assume the validity of the legacy, its ownership is left in abeyance for an indeterminate period, not measured by lives. That it is measured by the time given the executors for the performance of official duty does not help the situation. Whatever the measure provided, the title to the land and the ownership of the fund is in abeyance. Their vesting is postponed. There is a suspension not permissible, because not within the statutory allowance. It is exactly in that respect that the present case fatally differs from Shipman v. Rollins, since there the vesting was postponed for a single life, and the court held that a bequest limited to the use of a corporation to be created within the period allowed for the vesting of future estates and interests is valid. The vesting here was put outside of the permitted period.

But the counsel for the orphan asylum presents for our consideration a different theory. He holds that there was no suspension at all, for any time, because the fee of the land and the ownership of the fund devolved upon the heirs and next of kin, and were subject to be divested by the execution of a power in the executors to convey to the orphan asylum. He argues that the power, unexecuted, is not an estate, but amounts only to a lien or incumbrance, which does not suspend the power of alienation or the absolute ownership, and so the title may go to the legatee when incorporated through the execution of the power. But, so far as the personal property is concerned, I doubt if any special power remained when the will took effect. The provisions of that instrument which authorized the executors to purchase land for the asylum, and expend money in repairs or a new construction, were rendered needless by the testator's own act in purchasing the College Hill property, and fitting it up for use. What remained was simply the duty of paying over the legacies bequeathed at the proper time, and such payment was merely the duty of an executor, and not at all the execution of a power. But if to some extent a special authority remained which affected the personal estate, and could be treated as a power, it is exposed to the same difficulty which, as we shall see, attends the power framed for the transfer of the real estate. That was not, in terms, specifically devised, and it may be that, under the will and codicil read together, the asylum was to get its title through the execution of a power of transfer given to the executors. Assuming that to be so, the power was, as the respondent's counsel describes it, a mere naked power to transfer the title. The law would execute it without a conveyance, and by either process it still remains that the will contemplated and planned a future and contingent estate in the corporation to be created, which should vest at an indefinite future period not measured by lives. It is not lawful to create a perpetuity by means of a power in trust, any more than by a direct limitation, and, even on the learned counsel's theory, one was created. Assume that the fee of the land and the title to the fund descended to the heirs and next of kin, and they held it subject to the execution of the power, does it at all follow that they could transfer an absolute fee in possession? Possibly they might be deemed to hold a defeasible title, a base or determinable fee, but that is very different from an absolute fee. They could not convey such an interest or title, for they did not have it. The case upon which the learned counsel relies on this branch of his argument is that of Blanchard v. Blanchard, 4 Hun, 289, affirmed in this court without an opinion, 70 N. Y. 615. The power in that case was described as a mere lien or incumbrance which did not lessen or weaken the absolute fee of the holders of the residue. But the power there was simply a power of sale, which might, indeed, change the form of the property, but not its ownership. The court held that on a sale the owners would have the proceeds, just as they had possessed the land; that they could transfer the entire estate, whether real, or changed by the power into personal; and used this language to describe the situation, viz.: ‘In the case before us, the residuary devisees took an estate in fee, which, notwithstanding the incumbrance of the power, is neither defeasible nor conditional, and they may alienate it at pleasure.’ Here the power is of a very different sort. It is one which makes the supposed estate in the heir both defeasible and conditional; which operates...