Dammert v. Osborn

• Citation: 140 N.Y. 30,35 N.E. 407
• Parties: DAMMERT et al. v. OSBORN et al.
• Decision Date: 28 November 1893
• Court: New York Court of Appeals

140 N.Y. 30

35 N.E. 407

DAMMERT et al.

v.OSBORN et al.¹

Court of Appeals of New York.

Nov. 28, 1893.

Appeal from supreme court, general term, first department.

Action by Juan Luis Dammert, Jose R. Espinosa, and Leopoldo Barrenechea, as ancillary executors of Jose Sevilla, deceased, against William Henry Osborn, Jose Maria Munoz, William R. Grace, Henry Budge, John A. Stewart, Rosewell G. Rolston, the Sevilla Home for Children, and the Sociedad de Beneficiencia de Lima, to determine who was entitled to a trust fund created by testator's will. From a judgment of the general term (20 N. Y. Supp. 474) affirming a judgment directing the trust fund to be remitted to the executors of the will in Peru, all defendants except the Sociedad appeal. Reversed.

C. C. Marshall, for appellant Sevilla Home for Children.

Shipman, Lurocque & Choate, for appellants Osborn and others.

Frederic R. Coudert and David Milliken, Jr., for respondents.

O'BRIEN, J.

Jose Sevilla, residing and domiciled at Lima, in the republic of Peru, died there on the 9th of December, 1886, having made and published his last will and testament, bearing date July 2, 1885, by which he disposed of a large estate, consisting mostly of personal property, a considerable portion of which, or the evidences thereof, was at the time of his death actually within this state. The will was duly proved and established under the usual and proper judicial proceedings in the courts of the country where the testator was domiciled, having by law jurisdiction in such cases, and executors appointed pursuant to its provisions. These executors, residing in Peru, together with the appointed heirs and residuary legatees, caused the will, or a copy thereof, to be recorded in the office of the surrogate of New York; and thereupon, with their assent and upon their motion, the plaintiffs were appointed ancillary executors in this state, and, having qualified, and entered upon the duties of the trust, took into their possession the personal estate here. The single provision of the will out of which the questions arise which are involved in this appeal is a charitable bequest for the education of poor female children in the city of New York. The several clauses by means of which the testator sought to accomplish this purpose are quite elaborate and formal, and their substance and effect will be sufficient to give a clear view of the general purpose, as well as the mode in which it was to be executed: The testator states in the will that in the previous year, 1884, he executed a will by which he left the larger part of his fortune to found an institution in New York under the name of the ‘Sevilla Home for Children,’ and in which he formulated the details of support and management; but in view of the unfortunate situation of his relatives, and various persons dear to him, he deemed it necessary to reconcile this desire with his duties to his family. He then proceeds to declare that it is his will that there be established in the city of New York, and permanently maintained, an institution to be known as the ‘Sevilla Home for Children,’ to be managed by his executors and a board of philanthropic managers, and devoted to the education of poor female children. He directed that in all matters relating to the institution a prudent economy be observed; that the buildings be adequate to the end to be attained, constructed to receive from 50 to 100 children, and the teachers required; the land to be purchased and buildings erected at moderate prices. The managers were empowered to make rules for the government of the institution in the best manner, not forgetting the following conditions: (1) Only very poor children, from 5 to 10 years of age, fit for apprenticeship, and free from ailments, were to be admitted, to remain in the home until they attained the age of 16. (2) The food and clothing to be economical and suitable, and the latter to be of uniform pattern and color for all. (3) The instruction to be primary, and upon the basis of a moral education, with directions as to the practical branches to be taught. (4) Day scholars to be admitted, providing they did not occasion expense; to be kept apart from the boarders, in order to preserve the moral tone. He then gives directions for investing any money earned by the children, whenever that was possible, one-half to be paid to them at 16, and the other half devoted to the support of the school. The number of children to be always subordinate to the resources; preference to be given to natives of Peru, upon the recommendation of Peruvian consuls at New York, or the place where application was made. The fitness of the children being proved, the managers could not, within the limit as to numbers, refuse them admission, for any motive whatever. The board of philanthropic managers to be composed of seven prominent citizens of the city of New York, to be selected by the surrogate from a list which the testator named. For the purpose of founding and endowing the institution, $500,000 was bequeathed in the securities, constituting his estate, at par, to be delivered to the board by the executors. The board was directed to postpone the purchase of land and construction of buildings for two years after delivery of the securities, in order that the school should be founded with the accumulated interest in that period, without reducing the principal sum for that purpose. The executors and appointed heirs were directed to transmit to the municipality of New York a copy of the clauses of the will relating to the institution, and the testator requested the municipal authorities to watch over and care for the fulfillment and performance of the will in this regard. The trustees were appointed in conformity with the terms of the will, and accepted the trust, and have been made defendants in this action. The plaintiffs, as ancillary executors, have possession of the securities devoted by the will to the founding of the home, and hold the fund bequeathed subject to the order and direction of the court.

The trustees, or ‘philanthropic managers,’ as they are designated by the will, applied to the legislature of this state for incorporation, and upon this application chapter 17 of the Laws of 1889 was enacted, by which they, and such other persons as they might associate with themselves in accordance with the provisions of the will, were created a body corporate and politic under the name and title of the Sevilla Home for Children. The incorporators were, by name, declared to be the permanent trustees of the corporation, in accordance with the will of the testator; and in case of a vacancy by death, resignation, or otherwise, the survivors were empowered to fill it in accordance with the directions of the will, as near as may be, so that the number should be kept at seven. The trustees were given full power to control and manage the corporation, and for that purpose to make by-laws, and appoint such agents and officers as might be deemed necessary, and to fix their tenure of office as well as their own. The corporation was declared to possess all the powers, and, except as otherwise provided by the act, to be subject to the provisions of the Revised Statutes. It was expressly empowered and directed to accept and receive the gift bequeathed by the will upon the terms and conditions there expressed, and power was conferred upon it to enter into any obligation in order to secure compliance with such terms and conditions. In addition to the powers conferred by law upon corporations, it was declared that this corporation should have power and capacity to establish and maintain a home for the education of poor children in the city of New York as provided in the will, and for that purpose to demand and receive the fund bequeathed by the will for that purpose, and to hold, manage, and dispose of the same in such manner as might be best calculated to carry out the objects and purposes indicated by the testator. The trustees accepted the trust under the act of incorporation, and organized under it. The will contains various other large bequests to relatives and friends and for charitable purposes, the validity of which are not involved in this action, and, so far as appears, they are not questioned by any one. In the thirty-sixth clause the persons are designated by the testator who were empowered to administer the estate and carry out the will, and, in what seems to be the language of Peruvian law, they are called ‘executors,’ and appointed as testamentary heirs; and they were, by the terms of the will, to co-operate with the trustees in founding the institution and administering the gift. The plaintiffs, in their complaint, state all the facts, and ask for the judgment of the court with reference to the disposition of the fund in their hands. The defendants are the trustees named in the will, and the corporate body created upon their application, and the executors, appointed heirs, and residuary legatees named by the testator. It appears that they were all served, but none of them answered, or made any claim to the fund, except the corporation known as the Sevilla Home for Children, the trustees, and the Sociedad de Beneficiencia de Lima, one of the residuary legatees. The latter is the only party to the action who really disputes the right of the corporation or the trustees to the fund.

The learned judge before whom the cause was tried at the special term held that the bequest for the Sevilla Home was void, as contravening the statute of this state against perpetuities, and for other reasons, and that none of the defendants were entitled to receive the gift; and he directed that the plaintiffs account for the fund to the executors and appointed heirs in Peru, and, to that end, that the fund be remitted to that country, without determining to whom the beneficial interest in the fund belonged. The general term has affirmed the judgment, and the Sevilla...