Bird v. Merklee

• Decision Date: 05 February 1895
• Citation: 144 N.Y. 544,39 N.E. 645
• Parties: BIRD v. MERKLEE et al.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 544

39 N.E. 645

BIRD

v.MERKLEE et al.

Court of Appeals of New York.

Feb. 5, 1895.

Appeal from supreme court, general term, First department.

Action by Edward Schell, surviving executor of the will of George F. Merklee, deceased, against Adaline M. Merklee and others, to construe item 20 of testator's will. Pending the appeal to the general term, plaintiff died, and, after the decision of the general term, Joseph Bird, as receiver of the estate of George F. Merklee, deceased, was substituted as plaintiff. There was a judgment of the general term (26 N. Y. Supp. 1021) reversing a judgment sustaining the validity of such item, and plaintiff appeals. Reversed.

Lemuel Skidmore and James Otis Hoyt, for appellant.

T. M. Tyng and S. St. J. Mechutchen, for respondents.

BARTLETT, J.

This is an action to construe item 20 in the last will and testament of George F. Merklee, deceased, which reads as follows: ‘Item 20. If, after all the legacies are paid in full, there should be anything left of my estate, the same to be divided and paid to the Methodist Episcopal churches in the Ninth ward of the city of New York, according to the number of members, to buy coal for the poor of said churches.’ The general term of the First department reversed the judgment of the special term adjudging this to be a valid bequest to the churches named, and held that a trust was sought to be created which was void, as the beneficiaries were unascertained and indefinite. We are unable to agree with the learned general term, and are of opinion that the testator contemplated no trust, but made a valid bequest to the churches. This court, in Wetmore v. Parker, 52 N. Y. 450, held that a bequest similar in its essential features to the one at bar did not create a trust. In that case the testator gave $25,000 to the Utica Orphan Asylum, to be perpetually invested by the trustees or managers in a certain manner, and the interest and income to be expended for the support and maintenance of the asylum. This bequest was claimed to be invalid upon the ground that it created a perpetuity in violation of the statute prohibiting the suspension of the absolute ownership of personal property beyond two lives in being. After disposing of this objection, and holding that the provisions of the statute against perpetuities did not apply to such a bequest, Church, C. J., writing the opinion of the court, uses this language: ‘The income only of the permanent endowment of such an institution can be used with safety to its very existence. Any other course would frustrate, and, sooner or later, destroy, its usefulness. No mortmain law, restrictive as they have sometimes been, ever prevented the donors from making their gifts in such terms as would preserve the principal from dissipation. It does not create a trust in any such sense as that term is applied to property. The corporation uses the property in accordance with the laws of its creation for its own purposes, and the dictation of the manner of its use, within the law, by the donor, does not affect its ownership, or make it a trustee. A person may transform himself into a trustee for another, but he cannot be a trustee for himself.’ In the case before us there is nothing in the language employed by the testator that indicates a intention to create a trust. In the first place, he seems to have been in doubt as to his estate resulting in a residue after carrying out the provisions of his will. His language is: ‘If, after all the legacies are paid in full, there should be anything left of my estate, the same to be divided and paid to the Methodist Episcopal churches of the Ninth ward of the city of New York, according to the number of members, to buy coal for the poor of said churches.’ We have here a direct and simple gift made in terms that exclude any idea of trust. There is not even a direction to invest the principal and expend the income. It is admitted that the churches designated are duly incorporated and have the power to take. The validity of such a gift has not been legally open to question in this state since the case of Williams v. Williams, 8 N. Y. 525, where a bequest to the trustees of the Presbyterian church and congregation in the village of Huntington, in trust for the support of a minister of that church, of the income of an invested fund, was sustained as a valid bequest. It was there held that the provisions of the Revised Statutes against perpetuities do not affect the property given in perpetuity to religious or charitable institutions. While this case has been disapproved as to another bequest involving the existence of the English system of charitable uses in this state, its decision sustaining the bequest referred to has not only never been questioned, but...