Read v. Williams

• Citation: 26 N.E. 730,125 N.Y. 560
• Parties: READ et al. v. WILLIAMS et al.
• Decision Date: 24 February 1891
• Court: New York Court of Appeals

125 N.Y. 560

26 N.E. 730

READ et al.

v.WILLIAMS et al.

Court of Appeals of New York.

Feb. 24, 1891.

Appeal from supreme court, general term, first department.

J. Edward Swanstrom,P. H. Vernon,John E. Parsons,Fordham Morris, and Manley A. Raymond, for appellants.

Charles A. Jackson, for respondents.

ANDREWS, J.

The jurisdiction of a court of equity to entertain an action in behalf of the next of kin of a testator for the construction of a will disposing of personal estate, where the disposition made by the testator is claimed to be invalid or inoperative for any cause, was asserted by the chancellor in Bowers v. Smith, 10 Paige, 200, and was maintained in Wager v. Wager, 89 N. Y. 161, and in Holland v. Alcock, 108 N. Y. 312, 16 N. E. Rep. 305. It is true that in such cases the next of kin claim in hostility to the will, but the executors, in case the disposition made by the testator is invalid or cannot take effect, hold the personalty upon a resulting trust for those entitled under the statute of distributions; and thereby the jurisdiction to bring an equitable action for construction, and to have the resulting trust declared by the court, attaches as incident to the jurisdiction of equity over trusts. The Code of Civil Procedure (section 1866) has extended the remedy so as to include suits for construction of devises in behalf of heirs claiming adversely to the will, and it would not be consistent with the spirit of this legislation to narrow the jurisdiction in cases of bequests of personalty. The case of Chipman v. Montgomery, 63 N. Y. 221, contains expressions which, considered independently of the facts of the case, may seem adverse to this view; but, as was said by RAPALLO, J., in Wager v. Wager, supra, ‘the plaintiffs there had on their own showing no present interest in the property, and might never have any.’ The case of Horton v. Cantwell, 108 N. Y. 255, 15 N. E. Rep. 546, was one also where the plaintiff had no interest in the ultimate disposition of the estate by the provisions of the will which was assailed, even if held invalid, and the court decided that she could not maintain the action.

It is not really contended that the provision in the third paragraph of the will, and the modification thereof in the second paragraph of the third codicil, setting apart a trust fund, to be perpetually kept by the executors and trustees and their successors, and directing the application of the income for cemetery purposes, can be upheld. These provisions are manifestly void, as involving an unlawful suspension of the absolute ownership of personal property. The principal question in the case relates to the validity of the residuary clause in the second codicil. That clause is as follows: ‘ Eleventh. After the payment and discharge of my just debts, (if any there be,) funeral expenses, and expenses of administration, and after all legacies and bequests mentioned in my last will and testament, as modified by my codicils, shall have been paid in full, if thereafter there shall be any residue and remainder of my estate and property, I give and bequeath such residue and remainder, after the same shall have been duly converted into money, as follows, viz., to such charitable institutions, and in such proportions, as my executors, by and with the advice of my friend, Rev. John Hall, D. D., shall choose and designate.’ Subsequent to the death of the testatrix, and prior to the commencement of this action, the executors, with the advice and approval of Dr. Hall, made a written choice and designation of certain incorporated charitable institutions organized or existing under the laws of this state, authorized to take real and personal property by devise and bequest, among whom they directed the residuary estate to be divided. It will be noticed that the particular donees of the gift are not designated in the will. They could not be known until the executors should select, in the manner pointed out, the particular charitable institutions which should take the bequest. The range of selection was unlimited, except that the appointees were to be institutions of charity, and perhaps, also, it is implied that they were to be incorporated charities, because a provision is made that the institutions selected shall be under no disability to accept the legacy; but beyond this there was no limitation whatever. The selection was not confined to charitable institutions in this state or in the United States. If the power was valid, the executors, with the approval of Dr. Hall, might appoint the gift to charitable institutions anywhere in this country or in foreign countries. The will did not vest the title to the property in any one pending the exercise of the power of appointment. It was not given to the executors, nor was it given to any particular charitable institution which could be pointed out or ascertained at the death of the testatrix. If the property, under the will, vested anywhere, it was in the whole aggregate incorporated institutions of the whole world capable of taking by devise or bequest, subject to being divested in favor of such particular charities as should thereafter be designated by the executors. The question presented is not an original question in this court. It was decided adversely to the defendants in the case of Prichard v. Thompson, 95 N. Y. 76. There is between that case and this no distinction in principle. In that case the legal title to the fund was vested in the executors in trust. In this case the executors were given simply a power in trust, without clothing them, in terms, with the legal title to the fund to be distributed. But this makes no legal...