Boal v. Metropolitan Museum of Art of City of New York

• Decision Date: 03 February 1923
• Citation: Boal v. Metropolitan Museum of Art of City of New York, 292 F. 303 (S.D. N.Y. 1923)
• Parties: BOAL et al. v. METROPOLITAN MUSEUM OF ART OF CITY OF NEW YORK et al.
• Court: U.S. District Court — Southern District of New York

292 F. 303

BOAL et al. v. METROPOLITAN MUSEUM OF ART OF CITY OF NEW YORK et al.

United States District Court, S.D. New York.

February 3, 1923

Wm. E Carnochan and Herbert Parsons, both of New York City, for plaintiffs.

De Forest Bros., of New York City, for New York Museum of Art.

Dorman & Dana, of New York City, for Rhode Island Hospital Trust Co.

LEARNED HAND, District Judge.

The amendments to the bill are not in my judgment material.They consist of conclusions as to the testator's intention, the legal effect of the documents pleaded, the addition of two modifying deeds, and the fact that at the death of Davis and of Mrs. Andrews the deficiency of the trust fund would have exhausted the whole bequest to the museum.All but the last I may disregard for all purposes, since it is the court's duty to find out the legal effect of documents and to construe the language of the testator, without regard to his unexpressed intent.The last allegation throws no new light on the testator's purposes.It is supposed to show that he could not have intended the Museum as primary legatee.In the first place there is no such reasonable inference, and, in the second the form of the bequest would contradict it, if there were.

Davis could tell nothing about the size of his estate on the death of the longer liver of the two legatees for life.One-half the income, so far as legal, was to accumulate after the death of the first, and the survivorship might easily last for ten years.That of itself would probably add near a third to the estate.Besides, he might have been hopeful of the increase in his investments.What value he assumed his estate would have is therefore all pure speculation.

Besides even if I were to allow myself to conjecture, it would carry me nowhere.The plaintiffs' argument to be of any value must be that the collection was given primarily to the trusts, since on the face of things they would use it all up, and that the museum was put in only against possible residue.However reasonable that might be, looking at the actual figures when Davis died, nothing can be plainer than that he did not think of the gifts in any such way, but in precisely the opposite.He bequeathed the collection outright to the museum, and it was the trusts that came in only by way of condition or proviso (he used both words).It may be that he was ill advised to suppose that the museum could be the primary object of his bounty, but he certainly did, and I cannot disregard his words.The explanation suggests itself that in August, 1911, he thought his estate larger than it was when he died, and perhaps that is the truth; but I will not resort to speculation on either side.For whatever reason, the fact stands out that he meant the museum to be the primary legatee.

The argument on the amended bill developed into a reargument of the old questions, which I was content to allow, but which has only confirmed me in my original conclusion.I have to do with a situation quite outside of anything which the testator had in contemplation, and it is therefore obvious that any solution is bound to be verbal and indeed formal.Yet while it is idle to speculate upon what he personally would have done had he been able to look ahead, courts have always permitted themselves, within limits, to impute to testators an intent which they could not foresee.While I think the cases conclusive, I shall claim the same right so far as they are not authoritative.

The plaintiffs argue first that the two provisions of the seventh item may be read as alternate executory limitations, one in case there was no deficiency, the other in case there was.On such a theory the museum would have had no right to possession of the chattels in case Mrs. Davis survived Mrs. Andrews; their gift would never have vested.The testator used the best accredited form for an absolute bequest of chattels.It could not seriously be even argued that this did not create a vested remainder except for the words 'with proviso hereinafter made.'But that did not suspend the gift.Even if I take 'proviso' as equal to 'condition,' though in statutes at any rate there is thought to be a difference, there is not the slightest justification for saying that it was a condition precedent.And if there were, how could it survive the express provision for enjoyment by the museum before the supposed condition precedent should occur?I therefore must reject the notion of alternative contingent remainders; the bequest was vested, and the gift over was either an executory limitation or a charge.

It really does not make any difference which it is called, because the plaintiffs have nothing to stand on at best but Doe v. Eyre, 5 C.B. 713, which if pressed to a decision I should not follow.Proprietors, etc., v. Grant, 3 Gray (Mass.) 142, 156, 157, 63 Am.Dec. 725;Farnam v. Farnam,83 Conn. 369, 384, 385, 77 A. 70;Saxton v. Webber,83 Wis. 617, 629, 830, 53 N.W. 905, 20 L.R.A. 509;Sullivan v. Garesche,229 Mo. 496, 509, 510, 129 S.W. 949, 49 L.R.A. (N.S.) 605;Starr v. Starr Methodist Church,112 Md. 171, 183, 184, 76 A. 595.It is, of course, true that the condition may be independently annexed to the first devise so as to make it a base fee (First, etc., Society v. Boland,155 Mass. 171, 29 N.E. 524, 15 L.R.A. 231;Leonard v. Burr,18 N.Y. 96), but that is a matter of construction.In the case at bar there is no reason to impose the condition upon the gift because it does not occur in the bequest.The words 'with proviso,' etc., annexed no condition except that of the gift over itself; they did not limit the estate created by an independent condition, as is necessary to defeat it.

In all the cases cited the gift over was illegal under some statute, and the condition had actually occurred or its future occurrence was the subject of the decision.They all therefore raise the same point as was raised in Doe v. Eyre, supra, i.e., whether the condition on which the limitation over takes effect is to be treated as itself annexed to the first gift, or whether that is absolute, subject only to the gift over.This uniform current of American authority, coupled with the almost unanimous disapproval of Doe v. Eyre, supra, would in my judgment make the plaintiffs' position quite untenable in any view.

However I prefer to regard the gift over as a charge coupled with an ancillary power of sale.The objections are that it is not formally such, and that it gives the trustee greater rights than a chargee would have.But it is of no consequence whether this provision has the formal characteristics of a charge or not.The only important question is whether it is like a charge in the single quality...