Allen v. Stevens

• Decision Date: 05 December 1899
• Citation: 55 N.E. 568,161 N.Y. 122
• Parties: ALLEN et al. v. STEVENS et al.
• Court: New York Court of Appeals Court of Appeals

161 N.Y. 122

55 N.E. 568

ALLEN et al.

v.STEVENS et al.

Court of Appeals of New York.

Dec. 5, 1899.

Appeal from supreme court, appellate division, Fourth department.

Action by Benjamin G. Allen and others against Charles E. Stevens and others, as executors and trustees under the will of Nathan F. Graves, deceased, to obtain a construction of the will. From an order of the appellate division (54 N. Y. Supp. 8) reversing a judgment in favor of defendants (49 N. Y. Supp. 431), they appeal. Reversed.

This action was brought for the purpose of obtaining a construction of the will of Nathan F. Graves, deceased, and particularly the tenth clause thereof, devising and bequeathing the residuary real and personal estate in trust for the purpose of founding, erecting, and maintaining Graves Home for the Aged, to the effect that the said provisions of the tenth clause be adjudged void and invalid, and also that it be adjudged and determined that the said will is void and invalid so far as it devised and bequeathed more than one-half of the real and personal property of the testator to benevolent, charitable, literary, scientific, religious, and missionary societies, associations, or corporations, in trust or otherwise, and that the surplus of such one-half part be distributed and conveyed to the plaintiffs, who are next of kin of the testator. The special term decided that the will was in all respects valid, and rendered judgment accordingly. The appellate division, by a divided court, held that the tenth clause was invalid, and reversed the judgment. From the order and judgment entered thereon, appeals have been taken to this court.

The will read as follows:

‘I Nathan F. Graves, of the city of Syracuse, in the state of New York, being of sound mind and memory, do make, ordain, publish, and declare this to be my last will and testament; that is to say:

‘First. After all my lawful debts are paid and discharged, I give, devise, and bequeath unto Catharine H. Graves, my wife, all of the furniture, beds, and bedding of every kind, including paintings, pictures, vases, and statuary of every kind, with all kitchen utensils, in the dwelling house where we now live, the horses, harnesses, carriages, wagons, sleighs, sleds, cows, chickens, and everything appertaining thereto and connected therewith, including feed of every kind, to have and to hold the same to her heirs and assigns, forever. I also give and bequeath to the said Catharine H. Graves the rents, issues, and profits of all of my houses, tenements, and stores sough of James street, in Syracuse, to be paid to her monthly, subject only to the necessary repairs and taxes for and during her natural life. I also give and bequeath to the said Catharine H. Graves all dividends that may be declared by the New York State Banking Company on all the stock standing in my name, to be paid to her when declared and due, payable to her immediately, for and during her natural life.

‘Second. I give and bequeath to the Oneida Cemetery Association, called ‘Glenwood Cemetery,’ situate in the town of Lenox, near the village of Oneida, in Madison county, in the state of New York, the sum of five hundred dollars, to be received and held in trust by the trustees thereof, or other representatives of said Cemetery Association, to be invested on first bond and mortgage or mortgages, the interest, or so much thereof or so much of the same as may be necessary, be expended in keeping the family burial lot in good order, grading, mowing, enriching, and all other things that may be needed. The lot is known as lot number one in section S in said cemetery, the title of which is in Nathan F. Graves and Catharine H. Graves, his wife. The said money may be deposited in any savings bank in Madison or Onondaga county when not invested in bond and mortgage. Any part of the interest or principal may be used to repair any injury to the monument or headstones caused by any casualty or by lapse of time.

‘Third. I give and bequeath to the General Synod of the Reformed Church in America, also known as the General Synod of Church in America, the sum of ten thousand dollars, for the specific purpose of founding and maintaining an annual course of lectures on missions (the choice of the lecturer and the details of the lectureship to be under the direction of the professors in the seminary at New Brunswick, New Jersey, and the corresponding secretary of the board of foreign missions of the Reformed Church of America, or his successor), payable after the death of my wife, Catharine H. Graves; but the sum of five hundred dollars a year is to be paid by my executors, at such times as the same may be needed to sustain the lecture course, during the life of my wife.

‘Fourth. I give and bequeath to the Syracuse University, situated in the city of Syracuse, in the state of New York, ten thousand dollars, for the specific purpose of founding and maintaining an annual course of lectures on missions (the choice of the lecturer and the details of the lectureship to be under the direction of the chancellor of the University), payable after the death of my wife, Catharine H. Graves; but the sum of five hundred dollars a year is to be paid by my executors, at such times as the same may be needed to sustain the lecture course, during the life of my wife.

‘Fifth. I give and bequeath to Hope College, situated at Holland, in the state of Michigan, ten thousand dollars for the specific purpose of erecting a fireproof building, to be used as a library. The sums that I have advanced or may hereafter advance during my life will be deducted from the above amount. I also give and bequeath to said Hope College my miscellaneous library in the dwelling house in Syracuse where I now reside. The library will not be delivered to said Hope College during the life of Catharine H. Graves, my wife, unless she consents to the removal in writing.

‘Sixth. I give and bequeath to the Syracuse Home Association, situate at the corner of Townsend and Hawley streets, in Syracuse, to the Onondaga County Orphan Asylum, in Syracuse, and the St. Joseph's Hospital, situate on Prospect avenue, corner Union street, in Syracuse, each one thousand dollars, payable after the death of Catharine H. Graves, my wife.

‘Seventh. I give and bequeath unto the consistory of the Reformed Church, situated on James street, in Syracuse, in the state of New York, the sum of two thousand dollars in trust for the specific purpose hereinafter named, which sum may be invested in first mortgage or mortgages; the interest to be used in the payment of the rent of a pew in said church, and the balance of interest, if any, to be given to the board of foreign missions of said church. The pew designated by the consistory may be used by the pastor of the church and his family when needed for that purpose, and, when not so needed, to be used as the consistory shall from time to time determine.

‘Eighth. I give and bequeath to my executors the sum of fifteen hundred dollars, but in trust to be used for the purpose of placing in the Reformed Church in Syracuse a memorial window for wife, Catharine H. Graves, and myself. The sum may be used for that purpose, or so much thereof as may be necessary. The memorial window may be omitted, and a memorial tablet be placed on the wall inside of the church. In either case the consent and approval of the consistory must first be obtained.

‘Ninth. I give and bequeath to Francis H. Loomis, the son of my sister Achsah H. Loomis, one thousand dollars. I give and bequeath to Helen A. Graves, the daughter of my brother Benjamin S. Graves, one thousand dollars. I give and bequeath to Benjamin G. Allen, the son of my sister Mary A. Allen, one thousand dollars. I give and bequeath to Helen M. Hicks, Charles Sterling Graves, William Shaw Graves, Nathan Francis Graves and Mary Elizabeth Graves, the children of my brother Sterling P. Graves, each one thousand dollars. I give and bequeath to Abial S. Graves, my brother, one thousand dollars; to Mary E. Strong, Elizabeth and Benjamin S. Graves, his children, one thousand dollars each. I give and bequeath to Helen Breese Graves, daughter of Maurice A. Graves, one thousand dollars. I give and bequeath to Nathan B. Graves ten thousand dollars. I give and bequeath to Augustus C. Stevens, son of Charles E. Stevens, my law library and my mahogany book and paper case. I give and bequeath to Maurice A. Graves my three black-walnut book cases, now in my library room where I now reside; also, my library table. I give and bequeath to my brother the portrait of myself, painted by Elliatt; unto Sterling P. Graves. I give and bequeath unto Nathan Francis Graves my watch and chains.

‘Tenth. I give, bequeath, and devise all the rest and residue of my property of every kind, personal and real, wherever situate, to my trustees hereinafter named, for the purpose of founding, erecting, and maintaining Graves Home for the Aged, to be located in the city of Syracuse, in the state of New York. It is intended as a home for those who by misfortune have become incapable of providing for themselves, and those who have slender means of support. The institution to be known as the Graves Home for the Aged. I hereby appoint Charles E. Stevens, Rasselas A. Bonta, and Maurice A. Graves for the trustees to execute the above trust. I hereby authorize and empower my executors, or the survivor of them, to rent or sell any part or all of my real estate that I may own at the time of my death. They are authorized to employ a person or persons to have charge of the real estate, to collect rents and make repairs, and to pay such sums for compensation as they may deem reasonable and proper. After my executors have executed their trust, and paid all the legatees provided for in this will, they are authorized and directed to convey to the said trustees above named the balance and remainder of my property of every kind, to be applied for the...