Ministers and Missionaries Ben. Bd. of Am. Baptist Convention v. McKay
Decision Date | 27 May 1970 |
Citation | 64 Misc.2d 231,315 N.Y.S.2d 549 |
Parties | The MINISTERS AND MISSIONARIES BENEFIT BOARD OF the AMERICAN BAPTIST CONVENTION, Plaintiff, v. Donald White McKAY et al., Defendants. |
Court | New York Supreme Court |
Patterson, Belknap & Webb, New York City (Robert P. Patterson, Jr., New York City, of counsel) for plaintiff.
Louis A. Rossano, Mineola, for Donald White McKay, Helen McKay and Joyce Helen Pasco.
Louis J. Lefkowitz, Atty. Gen. of the State of N.Y. (Allan S. Meyers, New York City, of counsel), for charitable beneficiaries.
Samuel C. Coleman, New York City, Guardian ad Litem.
(I)
After providing for a number of bequests, legacies and trusts in various articles of her last will and testament, Maude S. W. McKay, the decedent, disposed of the residue of her estate in the following language:
'TENTH:--All the rest, residue and remainder of my Estate, both real and personal, and wheresoever situate, I give, devise and bequeath unto The Ministers & Missionaries Benefit Board of the Northern Baptist Convention, a corporation of the State of New York, to be invested and reinvested and the income applied to the objects of said organization.
'My will is, however, that said organization shall first use the said income for the alleviation of suffering from arthritic or other incurable disease, illness or condition, and/or for the comfortable maintenance and support, of any person or persons who may be living at the time of my decease and who may be connected by blood (but not beyond the tenth degree), either with my husband, James Pickens McKay, or with me. It is my purpose that the income on said residue shall be ultimately and solely devoted to the purposes of said organization, but that those near to me and my husband may have first call thereon for the purposes and within the limitations above mentioned. To that end it is my wish that said organization use its sound discretion in the expenditure of said income both as to amount and beneficiary, bearing in mind always that the care of incurables, and particularly arthritics, is nearest to my heart; and to said organization I leave the decision, on whatever proofs may be required, as to what persons are connected with my husband and with me as aforesaid. Should there be a balance of said income remaining in any year, after carrying out the above provisions, then said organization is empowered to use said balance in any following year for the general purposes for which it is formed.
'It is my further wish that the principal of said residue be given some suitable name in memory of my beloved husband.'
The will was executed on February 11, 1932. The testatrix died on September 12, 1932. The plaintiff is a religious and charitable corporation, and is the residuary legatee and the trustee named in the will. 1 This action was instituted in July 1968 for a declaratory judgment decreeing that the plaintiff has properly administered the fund thus bequeathed to it. 2
The objects of the plaintiff organization are stated in the amended act of its incorporation as follows:
'(T)o administer its funds for the benefit of ministers and missionaries who have served the Baptist denomination, their spouses or surviving spouses and their dependent children, and to attain these objects either directly or through the medium of related organizations; to cooperate with such organizations in securing, so far as practicable, uniformity in the methods for the extension of such aid; to promote interest in the better maintenance of the ministry; also, to receive and administer funds to provide benefits to other persons who as employees have served the Baptist denomination, and to their spouses or surviving spouses and their dependent children; and to adopt such measures to these ends as may be recommended by the American Baptist Convention.'
In its complaint, the plaintiff alleges that it has properly administered the trust according to the provisions of Article Tenth of the will. As a result of the state of the pleadings and the hearing before me, the following facts may be deemed to have been satisfactorily proved in support of the plaintiff's complaint: The assets received by the plaintiff from the McKay estate have been separately held, invested and reinvested. In the exercise of its sound discretion, it has made numerous grants out of the income of the trust fund to qualified relatives of Mr. and Mrs. McKay. In addition thereto, grants have also been made to retired ministers, missionaries and other employees of The American Baptist Convention. This constitutes a significant part of the work of The Ministers and Missionaries Board. Approval of a grant and the amount thereof depend upon the individual needs of the person applying therefor. However, consideration is also given to, and the amount of the grant would be influenced by, the total income available in the trust, the number of persons from whom the plaintiff had received applications, and the possibility that during the year other applicants may submit requests for aid. The plaintiff has made grants to certain persons for medical reasons (the alleviation of suffering from illnesses), or for the comfortable maintenance and support of persons applying for such grants. Although it does not adopt as a goal the spending of all of the income to be received, and does not devote the entire income to beneficiaries as they make applications to it, the plaintiff has never limited the amount of a grant in order to furnish funds to itself. Grants made during the year are not re-evaluated to provide additional funds to applicants, but those who apply are informed at the time when they receive their grants that additional applications may be presented during the year.
(II)
The contesting defendants 3 have challenged the plaintiff's administration of the trust (a matter which will be considered in the later portions of this decision); but they submit primarily that the testamentary disposition made in Article Tenth of the will must fail in that it violates the rule against perpetuities and is not a valid bequest, either to the plaintiff for its own benefit or as a trust limited as it is to those relatives to be selected and in those amounts to be determined by the plaintiff as trustee. The logical result of this contention is that the property attempted to be disposed of in Article Tenth must descend by intestacy.
The plaintiff argues, on the other hand, that, if one were to conclude that Article Tenth creates a beneficial interest in relatives of the testatrix and her husband within the tenth degree who were living at the time of her death, then the bequest in that respect only would be void, because the class is so extensive that it is impossible to ascertain its membership. Therefore, contends the plaintiff, the bequest to the class of relatives provided for under the Article must fail because the identity of the beneficiaries cannot be definitely determined as of the time of the death of the testatrix or at some time within the rule against perpetuities, and in any event that it is impractical to divide the property in such minuscule fashion among them. A logical extension of this contention would vest the gift absolutely in the plaintiff under the first paragraph of the bequest, devoid of any legal obligation to give effect to the testatrix's intention as expressed in the second paragraph, other than by a so-called 'power collateral' (Re Gulbenkian's Settlement Trusts (1967) 3 All E.R. 15, 18; see Section VII, Infra).
Thus, both of the opposing parties urge that the rule against perpetuities is applicable and that the rule invalidates basic elements of the bequest. But they disagree as to what is rendered void by the invocation of the rule. The validity of these respective contentions must depend upon an interpretation of Article Tenth and a construction of the language used therein, and the operative meaning of the rule against perpetuities. The crucial and determining factor is, of course, the intention of the testatrix, which must be gathered from an examination of the will and the language employed by her. In this judicial voyage, I proceeded with some difficulty because of the paucity of distinct authoritative precedents in certain critical areas. The route was a long and circuitous one, particularly since it was necessary to steer a satisfactory course between the dangers of the forensic Scylla and Charybdis projected by the contending litigants. And now, I must frankly say that (while I have, at long last, returned to my home base of required ultimate decision, more or less safely, I think) my expedition, although here and there eventful, has not been completely fruitful, for I have not succeeded in gathering (at least, En route) adequate supporting cargo. The simple result of my intellectual travels is that I must, at several ports, rely entirely upon my own resources. And I recognize full well that, no matter how interesting the itinerary, final arrival there must be. In the circumstances, I deem it meet to undertake to chart the calm seas and the turbulent tempests. I encountered on my odyssey, not only as a recorded log of my own trip, but, hopefully, as some aid to an interested explorer.
However, before directing my attention to the basic issues, I note the preliminary question of choice of law--that is, under the law of which jurisdiction should this will, and in particular Article Tenth thereof, be interpreted and construed, and sustained or invalidated?
The testatrix was domiciled in New Jersey at the time that the will was executed and at the time of her death. The will was executed in that State. The trustee (Ministers and Missionaries Board) is a New York corporation; and the trust fund has always been administered in the State of New York. The question, then, is whether the will and the language used therein should be interpreted and...
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