People v. Simonson

• Decision Date: 28 April 1891
• Citation: 126 N.Y. 299,27 N.E. 380
• Parties: PEOPLE v. SIMONSON et al.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 299

27 N.E. 380

PEOPLE

v.SIMONSON et al.

Court of Appeals of New York.

April 28, 1891.

Appeal from supreme court, general term, second department.

B. E. Valentine, for the People.

J. T. Marean and E. Schenck, for respondents.

GRAY, J.

The institution of this action by the a torney general of the state was with the object of establishing a testamentary trust for public and charitable purposes, under the provisions of the will of Samuel Wood, deceased. The complaint charged the executors of the testator with wasting, squandering, and appropriating to their own uses a large part of the residuary estate, and with having undertaken, by collusive proceedings in the courts, to defeat the testator's charitable provisions. The defendants in their answers objected, among other things, that the charitable trusts attempted to be created by the will were invalid. When the issues came on for trial the defendants' counsel moved for a dismissal of the complaint, inasmuch as upon its face it disclosed no cause of action, for the reason that the disposition of the residuary estate, made by will and codicil, was void. The trial judge took that view of the complaint, and dismissed it, and his decision has been sustained by the general term. We think their judgments were right. The testamentary dispositions in question were illegal, because they clearly contravened those provisions of the law which limit the period of time during which the ownership and power of alienation of estates may be lawfully suspended. That is the only proposition we are asked to review upon this record. The determination below, adversely to the claim of the people, concluded their action at once, whatever other questions were raised upon the pleadings or might have been discussed. The charges against these executors are most grave, and may not be without foundation as to their administration; but the testator's next of kin are the persons affected, and the law affords adequate remedy for any malversation in office by trustees or executors. That is not the province of the attorney general in such cases. By his will Samuel Wood gave his residuary estate to his executors, in trust ‘to create, endow, and forever maintain an institution in the city of New York to be called ‘The Samuel Wood Benevolent Institute;” and he directed them, upon his decease, to apply to the legislature for an act incorporating it, with power to take and hold real estate, and ‘to be governed as hereinafter provided.’ He then proceeds to define the purposes and object for which that institution should be intrusted with the property to be conveyed to it by his executors. By a subsequent clause of the will, ‘in order to secure harmony, efficiency, and unity in the management of said institute,’ he appoints his executors its ‘sole and permanent trustees,’ and required that ‘they be inserted in any act of incorporation as such trustees,’ and provided that they should fill vacancies occuring in their body, ‘so long as such institute shall exist as a corporate body or otherwise.’ By a codicil, the testator makes changes in his will, and directs ‘that the devise and bequest provided in my said will, with regard to the founding of ‘The Samuel Wood Benevolent Institute,’ * * * be changed, and the provisions thus made therefor be applied to the founding of a musical institution, to be known and called ‘The Samuel Wood Musical College.’ * * * It is my wish that a college of music be formed in the city of New York, and that appropriate legislation and means be adopted to perfect the incorporation and general plan of the institution, as near or similar to the plan or method given in my will with regard to the formation of ‘The Samuel Wood Benevolent Institute.” For some undisclosed reason, the testator, by this codicil, abandoned his previous testamentary scheme for a benevolent institution, the general purposes of which, beyond the care of certain relatives, contemplated the maintenance of a hospital, and he directed the creation of a college of music; but, as is quite apparent from the language he used in changing the application to be made by his executors of his residuary estate, the college of music was to be incorporated and organized upon the same plan as the benevolent institute. He says that the provisions made for the latter were to be applied to the founding of the musical college; so that it would be the duty of the executors, in carrying out the later residuary scheme, to have recourse to the directions in the will in relation to such matters as concerned the period of time within which the charter should be obtained, and the plan for the government of the corporation which the act of incorporation should prescribe. This effect of this codicil is to substitute for the direction to the executors in the main will to found and incorporate the benevolent institute, described there, the direction to found a public institution, with another object, namely, the musical education of the people. There was no revocation of the testator's will effected by the codicil, save only as to the nature of the public institution designed to be incorporated and endowed. The effect practically was to write into the will ‘The Samuel Wood Musical College,’ in the place of ‘The Samuel Wood Benevolent Institute,’ as the beneficiary intended for the residuary gift, and to apply to it the same provisions as to incorporation and for a plan of corporate management. We have, then, as we had in the will, the case of a gift to an unincorporated, nonexistent institution, as in Cruikshank v. Home for the Friendless, 113 N. Y. 337, 21 N. E. Rep. 64,-an authority which I think must be controlling upon the disposition of this appeal. Since the case of Burrill v. Boardman, 43 N. Y. 254, the non-existence of the corporate object of the testator's bounty cannot be urged as a fact of itself sufficient to defeat a testamentary trust. In that case the residuary trust was for the founding and maintenance of the Roosevelt Hospital, in New York city. The trustees were directed to apply to the legislature for an act of incorporation, and a limitation of two lives was inserted in the gift as the time...