Johnson v. Hughes

• Decision Date: 26 February 1907
• Citation: 80 N.E. 373,187 N.Y. 446
• Parties: JOHNSON v. HUGHES et al.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 446

80 N.E. 373

JOHNSON

v.HUGHES et al.

Court of Appeals of New York.

Feb. 26, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Edward W. S. Johnston executor of Joseph Hughes, deceased, against Henry Hughes and others. From a judgment of the Appellate Division (98 N. Y. Supp. 525,112 App. Div. 524), affirming a judgment for plaintiff, defendant, the Sisters of the Poor of St. Francis, appeals. Reversed and directed.

Gray and Edward T. Bartlett, JJ., dissenting.

John E. Donnelly, for appellant.

Lewis Johnston and John H. Rogan, for respondents.

HAIGHT, J.

This action was brought to obtain a construction of the last will and testament of Joseph Hughes, deceased.

The testator died on or about the 5th day of May, 1904, at his residence in the city of New York, leaving a last will and testament, which has been duly admitted to probate. By the third paragraph of his will he gave and devised to his executors all of his real estate in the state of New York, in trust to sell and dispose of the same at public or private sale, and to divide the net proceeds of such sale as follows: ‘Three equal fourth parts thereof to the trustees of St. Francis Hospital in the city of New York, for the benefit and use of the Blessed Virgin Mary purgatorial fund of said hospital.’ There is no controversy with reference to the other provisions of the will, and the question presented with reference to this clause pertains to its validity. There was not at the time in existence in the city of New York a corporation by the name of the St. Francis Hospital, but there was a hospital building and grounds known to the public as St. Francis Hospital, which was owned and conducted by a society known as the ‘Sisters of the Poor of St. Francis,’ who, by chapter 201, p. 390, of the Laws of 1866, was incorporated under that name, having for its object, as stated in that act, ‘the gratuitous care of the sick, aged, infirm, and poor.’ The act further provided that ‘no misnomer of said corporation shall defeat any gift or devise, provided the intent shall sufficiently appear that an estate or interest was made to be vested in said corporation.’ That the defendant, the Sisters of the Poor of St. Francis, was popularly or generally known and designated by the public as St. Francis Hospital, was found as a fact by the trial court, and it was conceded by counsel upon the argument of this case that the testator intended that his devise should be paid over to the trustees of that corporation. It was contended, however, on the part of the respondents that the gift was void for the reason that the sisters had never maintained in the hospital a ‘Blessed Virgin Mary purgatorial fund’; that the only possible object of such a fund was the saying of masses for the spiritual welfare of the souls of the dead in purgatory, and that the Sisters, as such corporation, had no power to act as trustees for such a fund or purpose, and that it was not for a corporate use.

It may be conceded that, if the devise was to the Sisters in trust for the benefit of others, they, under the statute by which they were incorporated, were not empowered to execute the trust. But we entertain the view that no trust was created by the will so far as the bequest to the Sisters' corporation is concerned. There was a gift to the executors of the real estate situated in the state of New York, in trust to sell and dispose of at public or private sale, but this was for the sole purpose of division among the persons or corporations designated by the testator. It was an imperative power of sale vested in the executors, thus operating to convert the real estate into personalty for the purpose of division. Three-fourths of the fund so derived from the sale of the real estate was given to the St. Francis Hospital, so called, but which in fact was the Sisters' corporation. This bequest, as he states in his will, was ‘for the benefit and use of the Blessed Virgin Mary purgatorial fund of said hospital.’ There is no gift to the corporation in trust-no direction for investment or for the payment over of any income or portion of the fund for the use and benefit of any person in being. It is therefore quite apparent that no trust was created with reference to the proceeds of the sale of the real estate. As we have seen, there was a gift and devise to the corporation. In terms, it is an absolute gift, but there is added thereto the clause already quoted, for the benefit and use of the Blessed Virgin, etc., which, it is contended, operates to cut down the absolute bequest to a conditional gift limited to a specific purpose, for which the Sisters had no power to use it.

In the case of Clarke v. Leupp, 88 N. Y. 228, Tracy, J., in delivering the opinion of the court, says: ‘It is well settled by a long succession of well-considered cases that, when the words of the will in the first instance clearly indicate a disposition in the testator to give the interest, use, and benefit of the estate absolutely to a donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words inferential in their intent.’ In Lambe v. Eames, L. R. (10 Eq. Cas.) 267, it is said: ‘Whenever the will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention to cut down the absolute gift as the prior part does to make it.’ In Clay v. Wood, 153 N. Y. 134, 47 N. E. 274, Gray, J., says: ‘Where there is an absolute gift of real or personal property, in order to qualify it or cut it down, the latter part of the will should show an equally clear intention to do so by the use of words definite in their meaning and by expressions which must be regarded as imperative.’

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