Holland v. Alcock

• Decision Date: 28 February 1888
• Citation: 16 N.E. 305,108 N.Y. 312
• Parties: HOLLAND v. ALCOCK.
• Court: New York Supreme Court

108 N.Y. 312

16 N.E. 305

HOLLAND

v.ALCOCK.

Supreme Court, New York County, New York.

February, 1888.

Appeal from a judgment entered upon an order of the general term of the supreme court in the second department, reversing an interlocutory judgment entered upon an order of the special term overruling a demurrer to a complaint, interposed by the defendant, Alcock.

The plaintiffs, as the heirs at law and next of kin of Thomas Gunning, deceased, brought this action against the defendants, Frederick Smyth and Henry Alcock, as executors and trustees, etc., of said Thomas Gunning, to have the third clause of the last will and testament of said testator declared void. The third clause of the testator's will is in the following words:

“All the rest, residue and remainder of my estate I give and bequeath to my said executors to be applied by them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul, and the souls of my family, and also the souls of all others who may be in purgatory.”

The defendant, Alcock, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and contended that the third clause of the will was valid.

The General Term, reversing the special term, and holding the bequest valid, said: “The objection to the clause more seriously urged is, that it creates a trust which is void for indefiniteness. But we do not think this view can be supported, and we think the rule was correctly stated by Mr. Justice CULLEN, who passed on this will and upheld this clause. [That opinion is reported in 3 How. Pr. N. S. 106.]

We do not pass on the question whether this gift could be sustained as one to a charitable use. We rest our decision on the doctrine enunciated by Judge CULLEN, ‘that there is a certain class of testamentary dispositions, the object of which is solely the benefit, real or supposed, of the testator, or the gratification of his desires, which, if trusts are not charities, nor do they have any beneficiary, yet, nevertheless, are unquestionably valid. The precise legal doctrine on which they rest, the cases do not state. I think a provision for masses for the benefit of the testator's soul is exactly akin to a provision for his funeral or monument. While decent burial is given by the law out of even an insolvent's estate, I think the monument is more an adjunct or concomitant of burial than the masses. … I think all the directions are of the same general character, and equally good in law”D’ (Reported below in 40 Hun, 372).

From the judgment of the general term the plaintiffs appealed.

E. H. Benn, for the appellants.

J. Newton Williams and David McClure, for the respondents.

RAPALLO, J.

The third clause of the testator's will is in the followi??hg words:

“All the rest, residue and remainder of my estate, I give and bequeath to my said executors, to be applied by them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul, and the souls of my family, and also the souls of all others who may be in purgatory.”

The validity of this clause is the question now presented for adjudication. The action is brought by five nieces and a nephew of the testator who claim to be his next of kin and heirs at law and, as such, entitled to his residuary estate in case the disposition thereof, attempted to be made by the third clause of the will, is adjudged to be invalid. The estate consists wholly of personal property and amounted at the time of the testator's death, in 1882, to about the sum of $28,000. By the second clause of his will the testator devised and bequeathed all his estate, real and personal, to his executors, in trust for the uses and purposes set forth in the will, which were to pay certain legacies amounting in the aggregate to about $16,500, and to apply the residue as directed in the third clause, before recited. That clause must therefore be regarded as creating or attempting to create a trust of personal property for the purpose specified. The plaintiffs claim that the trust thus attempted to be created is void; that as to the residuary estate the testator died intestate, and that distribution thereof should be made among the next of kin, etc. The defendant Alcock, one of the executors, demurred to the complaint. At Special Term the demurrer was overruled and the plaintiffs had judgment. On appeal to the General Term that judgment was reversed and judgment was rendered in favor of the defendant ?? cock, thus affirming the validity of the third clause of the will. The plaintiffs now appeal.

Some of the points involved in the case now before us were passed upon in the late case of Gilman v. McArdle (99 N. Y. 451). In that case the deceased had in her life-time placed in the hands of the defendant a sum of money on his promise to apply it to certain purposes during the life-time of the deceased and of her husband, and after the death of both of them, to pay their funeral expenses, etc., and to expend what should remain in procuring Roman Catholic masses to be said for the repose of their souls. This court declined to decide whether a valid trust had been created in respect to the surplus, there being no ascertained or ascertainable beneficiary who could enforce it, and the majority of the court expressly reserved its opinion upon that question, disposing of the case upon the ground that a valid contract inter vivos, to be performed after the death of the promisee, had been established; that there was nothing illegal in the purpose for which the expenditure was contracted to be made, and that there was no want of definiteness in the duty assumed by the promisor; and we held that as there had been no breach of the contract, but the promisor was ready and willing to perform, he was entitled, as against the legal representatives of the promisee, to retain the consideration.

The point upon which the majority of the court in the case last cited reserved its decision is now again presented. There is no contract inter vivos, but the will expressly bequeaths the fund in question to the executors, in trust for the purposes therein specified, one of which is to apply the residuary estate to the purpose of having prayers offered in a Roman Catholic church for the repose of the souls of the testator, of his family, and of all others who may be in purgatory.

It is claimed that this disposition contains all the elements of a valid trust of personal property; that there are definite and competent trustees; that the purpose of the trust is lawful, and that it is sufficiently definite to be capable of being enforced by a court of equity, as the court could decree the payment of the fund to a Roman Catholic church, or churches, for the purpose directed by the will. But if all this should be conceded there is still one important element lacking. There is no beneficiary in existence, or to come into existence, who is interested in or can demand the execution of the trust. No defined or ascertainble living person has or ever can have any temporal interest in its performance, nor is any incorporate church designated so as to entitle it to claim any portion of the fund.

The absence of a defined beneficiary is, as a general rule, a fatal objection to any attempt to create a valid trust. It is said by WRIGHT, J., in Levy v. Levy (33 N. Y. 107), that “if there is a single postulate of the common law established by an unbroken line of decision, it is that a trust without a certain beneficiary who can claim its enforcement, is void, whether good or bad, wise or unwise.” It is only in regard to the class of trusts known as ““charitable,” that a different rule has ever prevailed in equity in England, and still prevails in some of our sister States. Whether the English doctrine of charitable uses and trusts prevails in this State will be considered hereafter. In all other cases the rule as stated by Judge WRIGHT is universally recognized both in law and in equity. It is claimed that the trust now under review is not void according to the general rules of law for want of a defined beneficiary, because the trust is for the purpose of having prayers offered in a Roman Catholic church to be selected by the executors. It is contended that this is in effect a gift to such Roman Catholic church as the executors shall select, inasmuch as the money to be expended for the masses would, according to the usage, be payable to the church or churches where they were to be solemnized, and therefore as soon as the selection is made the designated church or churches will be the beneficiary or beneficiaries, and entitled to the payment; that the trust is therefore in substance to pay the fund to such Roman Catholic church or churches, as the executors may select, and that a duly incorporated church, capable of receiving the bequest, must be deemed to have been intended. Passing the criticisms to which the assumptions contained in this proposition are subject, and considering the trust as if it had been in form to pay over the fund to such Roman Catholic church as the executors might select, to defray the expense of offering prayers for the dead, the objection of indefiniteness in the beneficiary would not be removed. The case of Power v. Cassidy (79 N. Y. 602), is relied upon by the respondents as supporting their claim. In that case the bequest was of a fund to the executors in trust to be divided by them among such Roman Catholic charities, institutions, schools or charities in the city of New York, as a majority of the executors should decide, and in such proportions as they might think proper. The opinion of the court by MILLER, J., holds that giving full force and effect to the rule that the object of the trust must be certain and well defined; that the beneficiaries must be either named or eapable of being ascertained within the rules of law...