Guar. Trust Co. Of N.Y. v. N.Y. Cmty. Trust

• Decision Date: 13 December 1946
• Docket Number: 14 7/16.
• Citation: 50 A.2d 161
• Parties: GUARANTY TRUST CO. OF NEW YORK v. NEW YORK COMMUNITY TRUST et al.
• Court: New Jersey Court of Chancery

50 A.2d 161

GUARANTY TRUST CO. OF NEW YORK

v.NEW YORK COMMUNITY TRUST et al.

14 7/16.

Court of Chancery of New Jersey.

Dec. 13, 1946.

Suit by the Guaranty Trust Company of New York against the New York Community Trust, an unincorporated, charitable foundation of the State of New York and others for construction of certain provisions of a will.

Decree advised in accordance with opinion.

Syllabus by the Court.

1. A court in construing a will is not empowered to rewrite the instrument or attempt by its interpretation of the terms thereof to make a new will at variance with the intent of the testator. When a will is ambiguous in its terms and its language misleading and confusing, the court will intervene in an effort to arrive at the intention of the testator.

2. The design of the rule against perpetuities is to prohibit the power of suspension of alienation by a testator.

3. In the instant case, Held, the testator established a trust for a public charity.

4. A charity may be a gift that is to be applied for the benefit of an indefinite number of needy persons, or by assisting them to establish themselves in life. It includes all gifts in trust for the relief and comfort of the poor, the sick and the afflicted.

5. The courts of this state adhere to the rule that where there are conflicting or inconsistent expressions or clauses in a will, the last provision must prevail.

Collins & Corbin, of Jersey City, for complainant.

Wall, Haight, Carey & Hartpence, of Jersey City, for defendant, New York Community Trust.

Milton, McNulty & Augelli, of Jersey City, for defendants, The Actors' Fund of America, etc.

EGAN, Vice Chancellor.

Conrad Cantzen, a resident of Union City, New Jersey, departed this life on June 28, 1945, leaving a holographic will dated August 4, 1936, which was probated in the Hudson County Orphans' Court on September 12, 1945, by the complainant, who qualified as executor and trustee under the terms of the instrument.

The complainant seeks the aid and the instructions of this court, and for a construction of certain provisions of the will. The second paragraph of the will, disposing of decedent's residuary estate, reads:

‘Second. All the rest, residue and remainder of my estate I give and bequeath to The Guaranty Trust Company of New York City having an office's at 140 Broadway Borough of Manhatten City of N. Y., in trust however, for the uses and purposes and upon the terms contained in the resolution and declaration of trust creating the New York Community Trust heretofore adopted by said Board of directors of said Guaranty Trust Company and filed for record as provided by law all of which resolution and declaration incorporated herein, provided

(2) however, that I desire this trust fund shall bear the name ‘Conrad Cantzen Memorial Fund’ and that the net income thereof shall be applied in such manner and form as shall be determined by the Actors Equity Association, a Voluntary Association having a President and Treasurer now located at 45 W. 47th Street N. Y. city, and shall be applied through said association for the purpose of supplying footwear to present and future members of said association and of the chorus Equity and to all needy actors of the theatrical profession, I leave the ‘Conrad Cantzen Shoe fund’ for the people who cant buy shoes, even if they are not paid up members of Equity. Many times I have been on my uppers and the thinner the soles of my shoes were the less courage I had to face the manager in looking for a job. At the end of each year the income that is not used should be given to the Actors Fund of America.

If at some future date said Actors Equity Association decide that under the then existing circumstances the charitable purposes which I have herein determined upon are on longer appropriate or practicable and/or that some other method of distribution for the purpose of supplying the needs of the Theatrical profession, then the purpose of said trust shall be such as under the then existing circumstances The Actors Equity Association and the Actors Fund of America shall determine; and should these associations and their legal successors cease to exist then it is my request that the N. York Community Trust in carrying out the purpose of this will shall confer with three of the then leading association's having for their object charitable purposes in which members of the Theatrical profession are beneficiaries, and thereafter determine the uses of said income.'

The defendant, The New York Community Trust, takes the position that the testator's expressions in part of this paragraph are precatory and not mandatory, and maintains that it can qualify and function under the provisions of the will in accordance with its resolution and declaration of trust, which in substance is that the New York Community trust is a charitable foundation whose purpose is to encourage and promote gifts for educational, charitable and benevolent uses in accordance with a plan which--

a. Meets the changing needs for such gifts with flexibility in the power of distribution required by factors which constantly render trusts created for specific objects superfluous, and compliance with their terms unwise, impracticable or impossible.

b. Insures the administration of such trusts in a manner most effectual to accomplish their general purpose without regard to and free from any specific restriction, limitation or direction contained therein.

c. Safeguards and provides for the permanent security of the principal of such gifts.

d. Provides for the selection of the beneficiaries of such gifts when the principal purpose of the trust is found impracticable or impossible to be carred out, by an impartial committee of changing persons, chosen for their knowledge of the educational, charitable or benevolent needs of the times.

Under the terms of the resolution aforesaid the complainant, by adopting it, became a trustee of the New York Community Trust, and agreed to-‘accept any gift, grant, devise or bequest in trust for public educational, charitable or benevolent uses and purposes contained in any instrument which shall have annexed thereto a copy of this resolution and declaration and/or shall effectually identify and incorporate the same by reference and thereby conclusively assent to and adopt (1) all the provisions herein specified, or (2) all the provisions herein specified, but express a desire of the maker (a) as to the time when and the purpose for which the principal shall be distributed, and/or (b) as to the purpose for which the income shall be used for a definite or indefinite period, or (3) all the provisions herein specified, but express a desire of the maker that the time when and the purposes for which the principal and/or income shall be used shall be determined solely by the members of the Distribution Committee hereinafter referred to, appointed by the Trustees.’

The resolution also provided in paragraph three that: ‘The estate in any property, real or personal, from time to time given, granted, devised or bequeathed to any one of the Trustees for the uses and purposes, upon the conditions and subject to the provisions herein expressed, shall be deemed to be an estate in severalty and shall be held and administered by the Trustee to which such gift, grant, devise or bequest shall be made; but * * * the Trustee shall have no power of disposition over, or to select or appoint the beneficiaries of the rents, profits and income of any such property or to allot the amount to be paid to any of them, such power of selection, appointment and allotment and the duty to exercise it being conferred and imposed upon the Distribution Committee, except as otherwise stated herein.’

Exhibit ‘C’ attached to the bill of complaint is an opinion of Mr. Ralph Hayes, a present director of the New York Community Trust, which in part reads: ‘The Resolution and Declaration provides that funds may be established as part of the Community Trust for charitable uses, that a founder may express his desires concerning the specific charitable uses to be furthered and that the Distribution Committee will carry out such desires unless and until the Committee may determine that changed conditions occurring subsequent to the execution of the will have made the further continuance of a particular charitable activity unnecessary, undesirable, impracticable or impossible, in which event it shall give effect to other charitable uses than the one deemed obsolescent.’

In this opinion it is further stated that the will is ambiguous in that the testator ‘adopts and incorporates in the will all of the terms and provisions of the Resolution and Declaration of Trust Creating The New York Community Trust and then appends some phraseology, which if construed ad mandatory, would be at variance with the administrative procedure contained in the Resolution and Declaration so adopted and incorporated.’

The expressed views of defendants, Actors' Equity Association, Actors' Fund of America and Chorus Equity Association, are at variance with those of the New York Community Trust. They argues to the contrary, and say that no such ambiguity is presented by the terms of the will; that the intention of the testator is to provide for an incorporation of the terms of the said resolution and declaration into his last will and testament, conditioned however, and the provisions of the same to take effect and to become operative only upon the Actors' Equity Association and Actors' Fund of America ceasing to exist.

A further question for determination is contained in paragraphs nine and ten of the complaint, which read as follows:

‘9. The said last will and testament of said Conrad Cantzen, deceased, also provides:

“As to any matters and things wherein the powers of the trustees are not limited by any thing herein contained the trustees shall have all of the powers conferred upon trustees by the laws of the State of New York, and shall...