In re Shattuck's Will

• Decision Date: 24 November 1908
• Citation: 193 N.Y. 446,86 N.E. 455
• Parties: In re SHATTUCK'S WILL.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 446

86 N.E. 455

In re SHATTUCK'S WILL.

Court of Appeals of New York.

Nov. 24, 1908.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding for probate of the will of Mary E. Shattuck, deceased. From a judgment of the Appellate Division (118 App. Div. 888,103 N. Y. Supp. 520) affirming a decree of the Surrogate's Court declaring certain provisions of the will valid, William A. Cook, an incompetent person, an heir at law and next of kin of decedent, through his special guardian, appeals. Reversed.

Said Mary E. Shattuck died on the 14th day of March, 1906, leaving a last will and testament, which has been duly admitted to probate. The eighth clause of said will is as follows: ‘All the rest, residue and remainder of my real and personal property, I give, devise and bequeath to my executor hereinafter named, in trust, however, the rents, profits and income thereof to be expended by him annually and to be paid over to religious, educational or eleemosynary institutions as in his judgment shall seem advisable, not more than $500, however, to be paid to any one such institution in any one year.’

Robert Dornburgh, for appellant.

Edgar T. Brackett, for respondent.

CHASE, J.

The beneficiaries of the proposed trust are most indefinite and uncertain. Many years ago, in Morice v. Bishop of Durham, 9 Ves. 599, it was said: ‘If there be a clear trust but for uncertain objects, the property that is the subject of the trust is undisposed of, and the benefit of such trust must result to those to whom the law gives the ownership in default of disposition by the former owner.’ In England, however, this rule did not hold in cases of trusts for charity, and in the same case it was said, in connection with what we have already quoted: ‘But this doctrine does not hold good with regard to trusts for charity. Every other trust must have a definite object. There must be somebody in whose favor the court can decree performance.’ In this state prior to the statute of 1893, hereinafter further mentioned, all trusts for uncertain beneficiaries were held invalid. In Levy v. Levy, 33 N. Y. 97, this court say: ‘A ‘charitable trust’ is simply an indefinite or uncertain trust, a trust without a beneficiary; and certainly a trust of that description is void by the rules of the common law as it existed at the time of adoption by us, and now exists. If there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust without a certain beneficiary who can claim its enforcement is void, whether good or bad, wise or unwise. This is conceded.' In the last important case in this court involving the validity of a will including a trust for uncertain beneficiaries before the enactment of the statute of 1893 (Tilden v. Green, 130 N. Y. 29, 28 N. E. 880,14 L. R. A. 33, 27 Am. St. Rep. 487) the court say: ‘The objection is not obviated by the creation of a power in the trustees to select a beneficiary, unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain the object or objects of the power.’

Chapter 701, p. 1748, of the Laws of 1893, is as follows:

‘Section 1. No gift, grant, bequest or devise to religious, educational, charitable, or benevolent uses, which shall, in other respects be valid under the laws of this state, shall or be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, bequest or devise there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee then the title to such lands or property shall vest in the Supreme Court.

‘Sec. 2. The Supreme Court shall have control over gifts, grants, bequests and devises in all cases provided for by section 1 of this act. * * * The Attorney General shall represent the beneficiaries in all such cases, and it shall be his duty to enforce such trusts by proper proceedings in the court.’ As amended by chapter 291, p. 751, Laws 1901.

It was undoubtedly the purpose of the Legislature to change the law relating to gifts for charitable uses. In Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568, this court, referring to that act, say: ‘Practicaleffect can be given to the provision that no devise or bequest shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as beneficiaries only by treating it as a part of a general scheme to restore to the courts of equity the power formerly exercised by chancery in the regulation of gifts for charitable purposes, for, in order to ascertain the class of persons who were entitled to the benefits of the trust, the rule formerly in force must necessarily be invoked by which the court ascertained as nearly as possible the intention of the testator, by decree adjudged who were intended to be the beneficiaries of the trust, and directed its administration accordingly.’ It was held in that case, in substance, that a gift in trust for charitable uses is not void for uncertainty and indefiniteness of the beneficiaries named therein, and also that gifts within the provisions of the act are not subject to our statutes against perpetuities. This court has since the decision in that case repeatedly reaffirmed its construction of such statute. Matter of Griffin, 167 N. Y. 71, 60 N. E. 284;Matter of Graves, 171 N. Y. 40, 63 N. E. 787;Murray v. Miller, 178 N. Y. 316, 70 N. E. 870;Bowman v. Domestic & Foreign Miss. Society, 182 N. Y. 494, 75 N. E. 535;Mount v. Tuttle, 183 N. Y. 358, 76 N. E. 873,2 L. R. A. (N. S.) 428;Robb v. Washington and Jefferson College, 185 N. Y. 485, 78 N. E. 359;Rothschild v. Schiff, 188 N. Y. 327, 80 N. E. 1030;St. John v. Andrews Institute, 191 N. Y. 254, 83 N. E. 981.

The residuary clause of the will of the testatrix would have been void under the law of this state as it existed prior to the enactment of said statute. It is void now unless it is saved by the provisions thereof. The selection of the beneficiaries is left wholly to the judgment, from time to time, of the trustee, and the only limitation upon his discretion is that such beneficiaries shall be ‘religious, educational or eleemosynary institutions.’ In selecting them, the trustee is not confined to any creed, denomination, or territory. The intention of the testatrix in founding the trust is not expressed. Even if the trustee selected by the testatrix may be presumed to be familiar with her purpose and design and to act upon such knowledge, his death would make it necessary for the court in whom the title to the trust would rest to direct in regard to its control and disposition. It is manifest that it is necessary for a testator to define his purpose and intention in making a trust sufficiently so that the court, at the instance of the Attorney General representing the beneficiaries, can by order direct in carrying out the trust duty. Religion is polemic. We have no established religion, and, as there is no guiding hand in the will to direct in the distribution of the testatrix's bounty, the personal views or religious faith of the Attorney General representing the indefinite and uncertain beneficiaries, or of the judge holding the court for the time being and from time to time, might affect the distribution to be made of the income of the trust fund. The distribution from time to time might thus be contradictory in its purposes and results. It would be possible also to have the bounty of a testator of uncompromising religious views distributed among institutions managed by those having entirely different and antagonistic views. The act of 1893 doubtless saves a trust from being invalid because the beneficiaries are indefinite and uncertain, but a trust may be so indefinite and uncertain in its purposes as distinguished from its beneficiaries as to be impracticable, if not impossible for the courts to administer. We make these suggestions for the express purpose of calling attention to the fact that there must be some limitation upon the power of a testator to make a valid trust, if he leaves his objects and purposes undefined and the beneficiaries indefinite and uncertain. We may assume, however, for the purposes of this decision, that the will is not generally void by reason of the wide discretion left to the trustee and the great uncertainty as to who are to be beneficiaries thereunder, and we may further assume that the words ‘religious' and ‘eleemosynary,’ when used to describe institutions, necessarily show that the work to be performed by said institutions is charitable and public,and not private, and that the eighth paragraph of the will is not so uncertain that the trust cannot be controlled and directed by the court.

The three classes of institutions to which the income of the trust fund is directed to be divided are named in the disjunctive. The word ‘educatio...