Ablett's Will, In re

• Decision Date: 03 July 1957
• Citation: 144 N.E.2d 46,3 N.Y.2d 261,165 N.Y.S.2d 63
• Parties: , 144 N.E.2d 46 In re ABLETT'S WILL. In the Matter of the Accounting of S. Sheldon JUDSON et al., as Surviving Trustees under the Will of Eliza L. Ablett, Deceased, Respondents. Central Association for the Blind, Inc., et al., Appellants; Board of Governors of the London Hospital, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 63

165 N.Y.S.2d 63

3 N.Y.2d 261, 144 N.E.2d 46

In re ABLETT'S WILL.

In the Matter of the Accounting of S. Sheldon JUDSON et al.,

as Surviving Trustees under the Will of Eliza L.

Ablett, Deceased, Respondents.

Central Association for the Blind, Inc., et al., Appellants;

Board of Governors of the London Hospital, Respondent.

Court of Appeals of New York.

July 3, 1957.

Milton D. Nelson, Moses G. Hubbard, Francisco Penberthy and Arthur N. Gleason, Utica, for Central Ass'n for the Blind, Inc., and others, appellants.

Francis P. Finnegan and Bartle Gorman, Utica, for Myrtle L. Wilson and others, appellants.

James Maxwell Fassett and Arnold E. Rubinstein, New York City, for Board of Governors of London Hospital of Whitechapel, London, England, respondent.

Louis J. Lefkowitz, Atty. Gen. (Sidney Kelly, Jr., and James O. Moore, Jr., Albany, of counsel), respondent, in his statutory capacity under section 12 of the Personal Property Law, Consol.Laws, c. 41.

CONWAY, Chief Judge.

This is a proceeding brought by the trustees under the will of Eliza Lillian Ablett, deceased, to construe her will in order to determine to whom that one-fifth share of the residuary estate should be paid which, under paragraph Seventeenth of the will, the trustees were directed to pay to the London Hospital of Whitechapel, London, England. The Surrogate and the Appellate Division have agreed that the one-fifth share in question should be paid by the trustees to the 'Board of Governors of London Hospital'. The decree of the Surrogate provides, in part, that the said board 'shall invest and reinvest the same as a separate endowment fund to be known as The Robert Ablett Memorial and the fund shall be applied for research, services, and facilities or other purposes benefiting the patients of London Hospital, as the Board of Governors may deem advisable * * *.' (Emphasis added.) The decree states that the Board of Governors of London Hospital has executed and filed with the Surrogate 'a satisfactory undertaking that it will carry out and administer the Ablett bequest to London Hospital according to the terms of this decree * * *.'

The testatrix, Eliza Lillian Abblett, died a resident of the County of Oneida on September 22, 1931, leaving a last will and testament dated September 4, 1931 which was duly admitted to probate on December 21, 1931. She had been born in the Limehouse district of Middlesex, England, adjacent to London, on October 16, 1862. As a young woman she had twice been a patient of the London Hospital in 1891 and 1892 or about 40 years before she drew her will containing a bequest of one fifth of her residuary estate to the London Hospital. By the terms of her will she made a number of bequests (not relevant here) and the remainder of her estate was placed in trust for the benefit of her stepbrother, James Vincent, of London, England. The said James Vincent was to be permitted to occupy the testatrix' home at Whitesboro, New York, free of charge and free of expenses, if he so desired. The trustees were authorized upon the death of James Vincent, or in case he did not care to occupy the house in Whitesboro, to 'conduct said house as a Community House for the benefit of the inhabitants of the Village of Whitesboro', in which event the trustees were directed to set apart the sum of $50,000 from the residuary estate after the death of the said James Vincent with which to maintain such community house. If the trustees did not deem it advisable or desirable to maintain this residence as a community house, they were directed to 'sell said house and add the proceeds of said sale, together with the principal of said fund, to my residuary estate, to be directed in accordance with the provisions hereinafter set forth.' Under paragraph Sixteenth of her will, the testatrix directed the trustees to 'pay to Stevens-Swan Humane Society of Oneida County, Utica Branch, the sum of * * * $5,000'. In paragraph Seventeenth she provided: 'Upon the death of James Vincent and after the deduction of the above bequest (To Stevens-Swan Humane Society), I direct my trustees to divide my residuary estate into five equal parts and to pay one of said parts to the London Hospital of Whitechapel, London, England, to be known as the Robert Ablett Memorial, the income of which is to be used for such purposes as the board of managers or directors may deem advisable; one part I direct my trustees to pay to the Young Women's Christian Association, Inc., of Utica, N. Y., to be known as the Robert Ablett Memorial, the income of which is to be used for such purposes as the board of managers or directors may deem advisable; one part thereof I direct my trustees to pay to the trustees or directors of the Door of Hope, Inc., 1020 Mathews Avenue, Utica, N. Y., to be known as the Robert Ablett Memorial, the income of which is to be used for such purposes as the board of managers or directors may deem advisable; one part thereof I direct my trustees to pay to Camp Healthmore, Inc., of Utica, N. Y., to be known as the Robert Ablett Memorial, the income of which is to be used for such purposes as the board of managers or directors may deem advisable; one part thereof I direct my trustees to pay to the trustees or directors of the Central Association for the Blind, Inc., 32 Bank Place, Utica, N. Y., to be known as the Robert Ablett Memorial, the income of which is to be used for such purposes as the board of managers or directors may deem advisable.

'In case any of the specific legacies mentioned herein shall lapse or become void, I direct that such become a part of my residuary estate.'

James Vincent died on December 20, 1951. The trust fund held for his benefit amounts to approximately $800,000. The right of each of the four local charities to receive a one-fifth share of the residuary estate is conceded by all parties. The principal question to be decided by us is whether the Surrogate and the Appellate Division have properly determined that the one-fifth share of the residuary directed to be paid to the London Hospital of Whitechapel, London, England, should be paid to the Board of Governors of London Hospital. The problem arises by reason of the fact that the Government of Great Britain, by the National Health Service Act of 1946 (9 & 10 Geo. VI, ch. 81), nationalized the hospitals of England.

The four local charities contend that the gift to the London Hospital never vested or, if it did vest, that it was subsequently divested as a result of the passage of the National Health Service Act and that the terms of the will must be read to grant a cross-remainder to them. They argue alternatively that, assuming no cross-remainder construction is possible, distribution should be made to them under the doctrine of cy pres.

The next of kin, who are also appellants, likewise contend that the gift to the London Hospital never vested or, if it did vest, that it was subsequently divested as a result of the passage of the National Health Service Act. However, the next of kin go on to argue that testatrix died intestate as to the legacy bequested to the London Hospital and that the doctrine of cy pres is inapplicable. They argue that the testatrix had a particularized intention as differentiated from a general charitable intent which must be present for the application of cy pres.

The Attorney-General, appearing as statutory representative of the indefinite, uncertain and ultimate beneficiaries of a charitable disposition (Personal Property Law, § 12), supports, in general, the position of the respondent, the Board of Governors of the London Hospital. The Attorney-General argues that the courts should apply that construction which upholds the charitable gift; that the interest bequeathed to the London Hospital vested indefeasibly on the death of the testatrix; that the National Health Service Act does not affect the validity of the bequest to the London Hospital and that, even if there were a technical failure, the cy pres doctrine should be invoked to accomplish the same result

Section 40 of the Real Property Law, Consol.Laws, c. 50, which is also applicable to personal property by virtue of the last sentence of section 11 of the Personal Property Law (see Vanderpoel v. Burke, 63 Misc. 545, 547, 118 N.Y.S. 548, 549; Brooklyn Trust Co. v. Phillips, 134 App.Div. 697, 701-702, 119 N.Y.S. 401, 403-404) provides: 'A future estate is either vested or contingent. It is vested, when there is a person in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates. It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain.' Applying the above section to the case before us, it is obvious that there is no contingency here. On the date of testatrix' death, there was in existence a charitable institution located in Whitechapel, London, England, commonly known as the London Hospital (operated by the Governors of the London Hospital, 'made up in unlimited numbers of those who contribute specified sums, some or whom, if they contribute small sums, are annual Governors or members, and others, who may contribute larger sums, become life members'), which had the immediate right to possession of a one-fifth share of the residuary estate upon the death of James Vincent. It must also be remembered that, 'The law favors the vesting of estates, and, unless a contrary intention is unequivocally expressed, it will not be imputed.' Matter of Watson's Will, 262 N.Y. 284, 300, 186 N.E. 787, 791, see, also, Connelly v. O'Brien, 166 N.Y. 406, 408, 60 N.E. 20.

The appellants' contention that the legacy did not vest in the London Hospital is not based upon 'a contrary intention unequivocally expressed', but upon the so-called 'divide and pay over rule'. That rule is, in substance, this: Where the only words of gift are found in a direction to divide and...