People v. Powers

• Decision Date: 08 October 1895
• Citation: 41 N.E. 432,147 N.Y. 104
• Parties: PEOPLE v. POWERS.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 104

41 N.E. 432

PEOPLE

v.POWERS.

Court of Appeals of New York.

Oct. 8, 1895.

Appeal from supreme court, special term, Monroe county.

Action by the people of the state of New York against Daniel W. Powers, to enforce a trust for charitable uses. From a judgment of the general term affirming an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

George F. Danforth, for appellant.

Theodore Bacon, for respondent.

HAIGHT, J.

This action was brought to compel the defendant, Powers, to account for the estate of Martha Dunlap in his hands, and that he, as executor and trustee, be adjudged to pay over to the five defendant corporations, and to such others as may come in and duly establish their claims, all the estate which, upon such accounting, shall be found applicable thereto under the provisions of the will of Martha Dunlap, etc. Powers interposed a demurrer to the complaint, upon the grounds-First, that the complaint does not state facts sufficient to constitute a cause of action; and, second, that there is a defect of parties, because it is not alleged that ‘all the charitable and benevolent institutions or corporations in the city of Rochester,’ referred to in the complaint, are plaintiffs or defendants in the action. It appears from the complaint that Martha Dunlap died on the 15th day of May, 1882, at the city of Rochester, leaving an estate of real and personal property amounting to $100,000; that on the 22d day of March, 1882, preceding her death, she made her last will and testament, in and by which she bequeathed certain specific legacies to certain persons named, and created a trust for the benefit of her sisters, Mary Dunlap and Nancy Dunlap, during their lives, and then, by the twelfth clause of the will, provided as follows: ‘I give, bequeath, and devise unto Daniel W. Powers, of Rochester, N. Y., all the property given and devised by the 11th clause of this will which shall remain after the execution and termination of the said trust at the death of the 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 Rochester as he shall choose, and such sums and proportions as he shall deem proper.’ Upon her death the will was duly admitted to probate by the surrogate of Monroe county as a will of real and personal property, and letters testamentary were issued to Powers. Mary Dunlap and Nancy Dunlap have since died. It is alleged that each of the five corporations are domestic corporations organized and incorporated under the laws of the state of New York for charitable and benevolent purposes, located in the city of Rochester; that Powers had neglected and refused to distribute the estate of Martha Dunlap or any part thereof among them; and that, notwithstanding such neglect and refusal, the defendant corporations have hitherto neglected or refused to institute any proceedings in the surrogate's court of Monroe county or elsewhere for the establishment and enforcement of the trust.

For the purposes of this case, we shall assume that the testatrix, in and by the twelfth clause of her will, undertook to create a trust, and that she had no intention of devising or bequeathingany part of her estate to Powers individually. The question is thus presented as to whether the trust is enforceable, or void for indefiniteness. In the consideration of this question certain general principles must be borne in mind. The provisions of the will must be considered as of the time of the testatrix's death, and under the law as it then existed. The law of 1893 (chapter 701) has no application, for it was not within the province or power of the legislature to change vested rights of persons or parties in property. White v. Howard, 46 N. Y. 144;Dammert v. Osborn, 140 N. Y. 43, 35 N. E. 407. Charitable uses are not exempt from the provisions of the statute abolishing uses and trusts except such as are authorized thereby. 1 Rev. St. p. 727, § 45. The system of charitable uses as recognized in England prior to the Revolution, together with the cy pres doctrine available to give effect to trusts for charitable uses without any definite beneficiary, has no application in the law of this state. Bascom v. Albertson, 34 N. Y. 584;Holmes v. Mead, 52 N. Y. 332;Holland v.Alcock, 108 N. Y. 312, 16 N. E. 305;Tilden v. Green, 130 N. Y. 29-67, 28 N. E. 880;Fosdick v. Town of Hempstead, 125 N. Y. 581, 26 N. E. 801. When a donee of a power has been given a discretion to exercise it for the benefit of others, he must exercise the discretion, and its execution cannot be delegated to others; and in case he, for any reason, fails to exercise the discretion, and the power falls upon the court for execution, the court distributes equally among the whole class in which the donee was authorized to exercise his discretion. 1 Rev. St. p. 734, § 100; Hoey v. Kenny, 25 Barb. 396-399;Crooke v. Kings Co., 97 N. Y. 421-453. The fact that the trustee is competent and willing to execute the trust does not validate it, for the validity or invalidity of the trust cannot depend on the will of the trustee. And, in order to create a valid trust, there must be a beneficiary or beneficiaries designated. It may not be necessary to name him. It will be sufficient if he is so designated or described that he can be identified. But, where the gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree, the gift is void. Holland v. Alcock, 108 N. Y. 312, 16 N. E. 305;Holmes v. Mead, 52 N. Y. 332;Prichard v. Thompson, 95 N. Y. 76;Read v. Williams, 125 N. Y. 560, 26 N. E. 730;Levy v. Levy, 33 N. Y. 97.

As we have seen, the trust is that Powers will dispose of the property among ‘the charitable and benevolent institutions or corporations in the city of Rochester as he shall choose, and such sums and proportions as he shall deem proper.’ Charity means one thing; benevolence, quite another. Benevolence includes all acts or gifts prompted by good will or kind feelings, and may be entirely independent of any thought or intention of charity. The recipient or beneficiary may be well to do and in no need of charity. In England, under the law of charitable uses, bequests for charity have been sustained, while benevolent gifts without a designated beneficiary have been held to be too indefinite, and therefore void. Norris v. Thomson's Ex'rs, 19 N. J. Eq. 307. It is urged, however, that the word ‘benevolent,’ as used in this will, is coupled with that of ‘charity,’ and that the institution or institutions intended as beneficiaries must be both charitable and benevolent; in other words, that ‘benevolent,’ as here used, was intended to mean ‘charitable.’ This view we think, we may properly adopt. Powers was, then, required to dispose of the property among the charitable institutions or corporations in the city of Rochester, either or both, or exercise his discretion in selecting from them. We think we may take judicial notice that in the prominent cities of our state there are numerous organized charities that are not incorporated, as well as those that are incorporated. What are they? City hospitals, homes for the friendless, industrial schools, orphan asylums, aged female societies, and children's homes are common names in every city, with which we are familiar. Again, we have charities connected with nearly every religious denomination and church. Many schools are supported by charity. Then come the social societies, the Masons, the Odd Fellows, the Knights of Pythias, and numerous others, all incorporated and maintaining institutions of charity. Then there are the benevolent associations, the Ancient Order of United Workmen, Supreme Tent of the Knights of the Maccabees of the World, the Benevolent and Protective Order of Elks, and numerous others of like character, organized for the purpose of affording relief to a member or his family under certain contingencies, charitable in nature. Then, if we leave the list of corporations, and enter the field of unincorporated institutions, we will find the King's Daughters, the Willing Workers, and the sewing societies in nearly every circle and society. It will thus readily be seen that the including of all of the charitable institutions of a large city, both corporate and unincorporated, as the beneficiaries of the fund, was probably never contemplated or intended by the testatrix, and devolves duties upon the court which could only be discharged with the greatest difficulty, if capable of execution at all.

The special and general terms appear to have considered the case of Power v. Cassidy, 79 N. Y. 602, as controlling in the support of the trust. In that case the bequest was: ‘I give to my executors, to be divided by them among such Roman Catholic charities, institutions schools, or churches in the city of New York as a majority of my executrix and executors shall decide, and in such proportion as they may think proper.’ It does not appear to us that the two cases are parallel, or that the decision in one should control the other. The beneficiaries in each case are limited in locality...