Hope v. Brewer

• Decision Date: 29 November 1892
• Citation: 136 N.Y. 126,32 N.E. 558
• Parties: HOPE v. BREWER et al.
• Court: New York Court of Appeals Court of Appeals

136 N.Y. 126

32 N.E. 558

HOPE

v.BREWER et al.

Court of Appeals of New York.

Nov. 29, 1892.

Appeal from supreme court, general term, first department.

Action by John Hope, by James R. Cuming, his guardian ad litem, against William A. Brewer, Jr., and Edward B. Crowell, individually and as executors and trustees of the will and codicil of Thomas Hope, deceased, to contest the validity of a residuary bequest. From a judgment of the general term (19 N. Y. Supp. 355) affirming a judgment of the special term (15 N. Y. Supp. 849) for defendants, plaintiff appeals. Affirmed.

Vanderpoel, Cuming & Goodwin, (Delos McCurdy, of counsel,) for appellant.

James Thomson and Robert Hunter McGrath, Jr., for respondents.

O'BRIEN, J.

The general question presented by this appeal is the validity of the twenty-sixth or residuary clause of the will of Thomas Hope, who died on March 3, 1890, without issue. The will contains numerous bequests to collateral relatives,and to institutions and corporations for charitable purposes. By the residuary clause, all the rest, residue, and remainder of the testator's estate was devised and bequeathed to his executors and their survivors, in trust for the purpose of founding and endowing an infirmary for the care and relief of sick and infirm persons, to be established at the testator's native place of Langholm, in Dumfrieshire, Scotland. The testator directed his executors, as trustees, to promptly take all necessary and proper steps for procuring the incorporation and organization of this infirmary. He further directed that if within three years from his decease, and during the lives of the two executors and trustees named, or within the three years, and during the life of either of them, such infirmary was incorporated and organized, so as to be able to take the bequest, and should, in respect to its organization, purposes, and plan of management, be accepted as satisfactory by the trustees, or the survivor of them, then the trustees, or the survivor of them, should forth with, or as soon as practicable, sell and convert into money all of the said property remaining unsold, and pay over the whole of said trust fund or estate to such infirmary, to have and to hold forever for its uses and purposes; but if an infirmary, in accordance with these provisions, should not be incorporated and organized and be accepted as satisfactory by the trustees, within three years after the testator's death, and during the life of the trustees, then the trustees, or the survivor, and his or their successor or successors, were directed to divide the whole of the said trust fund and estate among, and to pay it over to, such charitable institutions, then established and existing at Langholm, and competent to take the same, as the trustees should decide, and in such proportions as they or the survivor of them might think proper. The testator left both real and personal estate, and in a subsequent clause of the will the executors were directed to sell the real estate, and convert the same into money, as soon after the testator's death as convenient. The will bears date June 12, 1886, but the residuary clause was materially changed and modified by subsequent codicils. The first codicil, bearing date November 24, 1886, directed that, in case the trustees should meet with any difficulties or cause of delay in incorporating and organizing the infirmary, provided for in the will, they were authorized and directed, if lawful so to do, to realize the whole of the residuary estate, and pay the same over to three trustees in Scotland, named in the codicil, for the purpose of establishing and maintaining such infirmary, and the testator gives directions for the government of the institution and the investment of the fund. It is not necessary to make further reference to this codicil as it was substantially abrogated by another, bearing date October 24, 1888, and which furnishes the principal ground for this controversy.

The twenty-sixth or residuary clause of the will, as well as the first codicil, in so far as they relate to the founding and endowment of the infirmary in Scotland, were also changed and modified by this second codicil by substituting the following provision: ‘Instead of said institution being founded and endowed by said trustees in the manner therein mentioned, I direct them, as soon after my decease as they can conveniently do so, to realize all the rest, residue, and remainder of my said property and estate so bequeathed to them, and to pay, assign, and make over the whole proceeds thereof, when and as realized, to and in favor of William Elphinstone Malcolm, * * * George Maxwell, * * * and Robert Smellie, residing in Langholm aforesaid, * * * as trustees and in trust, to the end that they may apply the same in founding, endowing, and maintaining an institution for the care or relief of sick or infirm persons to be established and located at Langholm, my native place, * * * and to be called ‘The Thomas Hope Hospital.” These Scotch trustees and their successors are made perpetual governors of the hospital, and are directed and empowered to apply the funds to be received by them from the executors to the erection, completion, and organization of the hospital, and provision is made in great detail with respect to the investment of the fund and the application of the income. Power is also expressly conferred upon the governors of the institution to enact statutes and by-laws for its government, and to change or modify them, at their pleasure, whenever in their judgment the object of the charity would be promoted thereby.

The particular beneficiaries of the trust, or the persons to be received and cared for in the hospital, are described by the testator in the codicil in the following language: ‘And I recommend and appoint the preferences of admission to the said hospital to be as follows, viz.: First, sick or infirm persons natives of and resident in the said town of Langholm, or the parish of Langholm, or such other parishes in the county of Dumfries as the said governors and trustees in Scotland may from time to time select and determine; second, sick or infirm persons, natives of or resident in said town or parishes as aforesaid; and I declare that the said governors and trustees in Scotland shall be the sole judges as to the eligibility of the persons to be admitted to the said hospital and benefits thereof, or to participate in this endowment, and shall likewise be the sole judges when any such sick or infirm person shall cease to be an inmate of said hospital, or be recipient of the funds of the endowment, and I empower the said governors and trustees in Scotland, at their discretion, and if the funds will admit thereof, to give and afford out of said revenues such assistance as they may think suitable to such sick, infirm, or aged persons in reduced circumstances, natives of or resident in the said town of Langholm, or parishes as aforesaid, as they may judge to be proper objects of this endowment, without the necessity of their being admitted to the said hospital.’

The scheme of the original will contemplated the foundation, endowment, and management of the hospital by the executors as trustees. The codicil required the executors to convert the residuary estate into money, and pay the same over to the Scotch trustees, who were empowered to establish the institution and administer the charity. It has been found as a fact by the trial court, and is not now disputed, that this disposition of the residuary estate contained in the residuary clause of the will, and in the second codicil, is perfectly valid under the laws of Scotland. The foreign trustees are competent to take the fund and to administer the trust under Scotch law. The power and duty of the executors to convert the estate into money is thus expressed by the testator immediately following the residuary clause: ‘It is my will that my executors hereinafter named, as soon as may be conveniently done after my death, shall sell and convert into money all the real estate, of every name or nature, and wheresoever situated, of which I shall dieseised, possessed, or entitled unto; and I hereby authorize and empower my said executors, and the survivor of them, to sell and dispose of said real estate at public or private sale at such time or times, and in such parcels, and upon such terms, and in such manner, as to them shall seem meet.’ This provision of the will operates to convert the real estate, of which Thomas Hope died seised, into personalty, and subjects it to the operation of the rules of law governing the devolution of personal property. Moncrief v. Ross, 50 N. Y. 431;Power v. Cassidy, 79 N. Y. 602;Vincent v. Newhouse, 83 N. Y. 505;Asche v. Asche, 113 N. Y. 232, 21 N. E. Rep. 70; Fraser v. Trustees, 124 N. Y. 479, 26 N. E. Rep. 1034; Underwood v. Curtis, 127 N. Y. 523, 28 N. E. Rep. 585; Lent v. Howard, 89 N. Y. 169; Bisp. Eq. §§ 311, 312.

The plaintiff is the nephew of the testator, and one of the legatees under the will, and he brings this action to set aside as void the disposition of the residuary estate, contained in the twenty-sixth clause and the codicils, on the ground that the several provisions for the establishment of the infirmary or hospital are too indefinite and uncertain in their subjects and objects, and unlawfully suspend the power of allenation of real estate and the absolute ownership of personal property. The courts below have, in all respects, sustained the validity of the will and codicils, and the plaintiff alone appeals from the judgment. Although it appears that when the testator made the final provision contained in the second codicil for the establishment of a charity in his native place, he was temporarily residing at that place in Scotland, yet it is found that, at the time that the will and codicils were executed, he was domiciled in this state, and the will has been proved and established here....