Kitchen v. Pitney

• Decision Date: 01 February 1923
• Docket Number: Nos. 51, 54, 58, 72.,s. 51, 54, 58, 72.
• Citation: 119 A. 675
• Parties: KITCHEN v. PITNEY et al. (four cases).
• Court: New Jersey Supreme Court

119 A. 675

KITCHEN

v. PITNEY et al. (four cases).

Nos. 51, 54, 58, 72.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1923.

Appeal from Court of Chancery.

Suit by Joseph M. W. Kitchen against John O. H. Pitney and another, individually and as trustees, and others. From a decree sustaining a trust declared by the will, the complainant and some of the defendants take four separate appeals. Affirmed.

The opinion of Fielder, V. C, in the court below was as follows:

Marcus L. Ward died May 27, 1920, leaving a will which was admitted to probate June 2, 1920, by the surrogate of Essex county. By the twenty-fifth clause he gave, devised, and bequeathed all the residue of his estate to his executors and trustees, in trust for the following purpose:

"They are to use such rest, residue and remainder of my estate for the purpose of establishing and maintaining, as hereinafter directed, a home for aged and respectable white bachelors and widowers, who may have, through misfortune, lost the means which they once had for their own support, and have become wholly or partially unable to support themselves, * * * and in order that such desire on my part may be in all respects fulfilled, it is my will that my said executors and trustees, with the advice and aid of counsel learned in the law, shall cause and procure a corporation to be formed under the then laws of the state of New Jersey, to be called the 'Marcus L. Ward Home for Aged and Respectable Bachelors and Widowers,' with all such powers and privileges as may be authorized by the laws of the state of New Jersey. It is my will that my said executors and trustees, or one of them, shall be included in the list of incorporators, organizers or members for such proposed corporation, and that the other incorporators, organizers or members shall be selected by my said executors and trustees from men of high character and standing, resident in the state of New Jersey. The main object to such proposed corporation shall be to provide for the proper and suitable maintenance and support of such respectable and aged white bachelors and widowers, not less than sixty years of age, and bona fide residents of New Jersey for ten years preceding admission, as may have, through misfortune, lost the means which they once had for their own support and become wholly or partially unable to maintain themselves, and as may be admitted to said home under the charter and bylaws and under the rules and regulations which may be made for the government of said home by said corporation when formed; applicants for admission to said home must satisfy the management of said corporation, that they have been bona fide residents of the state of New Jersey for at least ten years prior to application for admission thereto, and that they are at least sixty years of age; and no bachelor or widower shall have the right to admission to such home, or to remain after admission, except with the sanction and approval of such corporation, in accordance with its charter and by-laws and the rules and regulations prescribed for the government of said home; and the charter or certificate of incorporation of such corporation shall be so drawn as to provide for such object and the limitations aforesaid and to secure so far as possible the realization of my wishes as expressed in this my last will and testament.

"It is my will that such corporation shall purchase with a part of such rest, residue and remainder of my estate, lands of sufficient quantity, at such place in the state of New Jersey, as the directors or trustees of said corporation may select, and shall erect thereon proper and suitable building or buildings, and furnish and equip the same, for the comfort of such aged and respectable bachelors and widowers, as may be admitted to the privileges of said home; and if thereafter needed, said corporation may erect from time to time additional building or buildings, and furnish and equip the same, for the use of said home, using for such purpose such further part of the rest, residue and remainder of my estate, or any accrued income thereon, as the directors or trustees of said corporation may deem expedient. After the purchase of said lands and the erection, furnishing and equipment, of the building or buildings to be erected thereon, and subject to the erection, furnishing and equipment of other building or buildings as from time to time needed, the income of the balance of said rest, residue and remainder of my estate is to be used by said corporation for the proper support, and maintenance (inclusive of necessary repairs to buildings, and refurnishing) of said 'Marcus L. Ward Home for Aged and Respectable Bachelors and Widowers.' * * *

"Upon the formation and incorporation, such corporation to be called the 'Marcus L. Ward Home for Aged and Respectable Bachelors and Widowers,' in compliance with the then laws of the state of New Jersey, my said executors and trustees are required and directed to transfer and deliver to such corporation, its successors and assigns forever, by legal and proper conveyances, and other necessary instruments in writing, sufficient in the law for that purpose, all of the rest, residue and remainder of my estate."

This suit is instituted by complainant as an heir at law and next of kin of the testator, on behalf of himself and all others interested, to have it declared that the trust is illegal and void, and that the executors and trustees under the will hold title to the residuary estate for the benefit of complainant and all other persons who, as heirs at law and next of kin of the testator, are entitled to the same.

The contestants contend that one who is partially able to support himself is not, in a legal sense, an object of charity, and that, because the trust under consideration is for the benefit of bachelors and widowers who are partially, as well as wholly, unable to support themselves, the trust is not exclusively for charitable uses, and it must therefore fail. If the fund, in the discretion of the trustees under the will, or of the board of trustees who are to manage the home under its incorporation, can be used for purposes not strictly charitable, or partly for purposes charitable and partly for purposes not strictly charitable, the trust created is invalid. Norris v. Thomson's Ex'rs. 19 N. J. Eq. 307, affirmed 20 N. J. Eq. 489; Hyde's Ex'rs v. Hyde, 64 N. J. Eq. 6, 53 Atl. 593; Hegeman's Ex'rs v. Roome, 70 N. J. Eq. 562, 62 Atl. 392; Van Syckel v. Johnson, 80 N. J. Eq. 117, 70 Atl. 657; Thomas v. Scheible, 91 N. J. Eq. 451, 111 Atl. 519.

It is conceded that a trust in perpetuity intended for the relief of the poor, the sick, the homeless, the aged, or other persons in similar unfortunate circumstances, is valid as for a charitable use. The class of men whom this testator desired to help are bachelors and widowers of advanced age and in unfortunate circumstances in life—that is, those men who having lost their means of support through misfortune, are at the age of 60 years or upward, partially, if not wholly, unable to support themselves. It is not necessary to the validity of the trust that the testator's charitable intent should be confined to those so absolutely destitute that the almshouse is their only public place of refuge. If a man is partially unable to support himself, he must have need of some assistance. Men who are partially unable to support themselves may be objects of charity, as well as those who are wholly destitute and entirely dependent upon others, the difference between them being but of degree, as is the difference between the poor and the very poor; the sick and the hopelessly incurable; the...