Riker v. Cromwell

• Decision Date: 19 March 1889
• Citation: 113 N.Y. 115,20 N.E. 602
• Parties: RIKER et al. v. CROMWELL et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 115

20 N.E. 602

RIKER et al.

v.CROMWELL et al.¹

Court of Appeals of New York.

March 19, 1889.

Appeal from supreme court, general term, First department.

Action by John H. Riker and another, executors, etc., of Sarah Burr, deceased, against John H. Cromwell and others, to obtain a construction of the will and codicils of said testatrix. The court held that the next of kin were entitled to nothing; all property not otherwise disposed of passing by the residuary clauses. Said Cromwell and others appealed to the general term, where the judgment was affirmed, and they again appeal.

Clifford A. H. Bartlett, for appellants.

Stephen P. Nash, John E. Parsons, and C. E. Tracy, for respondents.

GRAY, J.

The appellants ask us to reverse the judgments below for errors in the construction by the court of the will of Sarah Burr, deceased. Their principal contention is that certain dispositions of her property, made by way of legacies for charitable and religious purposes, were invalid or ineffectual, and that such gifts neither were carried by the provisions of the will which were made for the residuary legatees, nor vested in the persons named as executors under certain other clauses. If they are right in their views, the result would be that, as to so much of her estate, testatrix had died intestate, and the next of kin would benefit correspondingly. The testatrix died in 1882, unmarried; leaving her surviving neither child, parent, brother, nor sister. Her will was made in 1866, and two codicils were subsequently executed, in the years 1869 and 1881, respectively. Beyond a few legacies to relatives and friends, she disposed of her large possessions by gifts to charitable societies, or for definite benevolent purposes in this and in other states and countries. By the seventh clause of the will, in case of a misnomer of any of the institutions or of their incapacity to take and hold the legacies, she gives the sum constituting any ineffectual gift to her executors, ‘to be applied to the charitable uses or purposes, as above indicated, in such manner as they shall be able; giving the same, however, to them absolutely, relying on their carrying out substantially my purposes.’ By the next following, or eighth, clause, she gives ‘all the rest, residue, and remainder of my estate, including all void and lapsed legacies, if any, not carried by the terms of the preceding clause,’ in equal parts, to six charitable societies named. The first codicil makes further bequests to various individuals and societies, and repeats the provision contained in the seventh clause of the will, designed for the case of a legacy being ineffectually given, or becoming void. The second codicil recites the fact of there being a large increase in the residuary estate of the testatrix since the making of her will and previous codicil, and ‘in order to carry out more widely the charitable and religious purposes intended’ she makes further large bequests to a number of charitable societies. Of this last codicil the second and third clauses are important to our consideration of the questions arising, and I give them in full:

‘ Second. And I do hereby will and direct that the following named institutions, to-wit, the Sheltering Arms,’ etc., (naming 14 additional societies,) ‘shall share my residuary estate remaining after the payment of all the legacies and carrying out all the trusts and provisions made by me in my said will and first and second codicils, (excepting the residuary bequests given in the eighth clause of my said will,) in equal shares with the institutions named in the said eighth clause of my said will; and I give and bequeath the same accordingly, it being my intention that the corporations, institutions, and societies hereinabove named in this second clause, together with the six corporations, institutions, and societies named in said eighth clause, of my said will, shall receive in equal shares the residue of my personal estate, and of the proceeds of my real estate.

‘ Third. If any of the legacies or bequests given by me in this codicil should from any cause whatever fail to take effect, I give and bequeath the amounts of such legacies or bequests so failing to take effect unto my executors, who shall qualify, as joint tenants, absolutely, in full confidence that they or the survivor or survivors of them will dispose of such amounts as I would have desired myself to do.

‘ Fourth. I hereby republish my said will and first codicil as altered hereby.’ The second clause of this last codicil, read in connection with the eighth clause of the will, constitutes as the sole residuary legatees of testatrix 20 societies, while in each testamentary instrument she endeavors to prevent a failure of disposition in the gift of a legacy by substituting her executors as its recipients in the place of the legatee for which the ineffectual gift was originally intended. A very plain intention is manifest, from a consideration of these testamentary provisions, that, beyond the particular gifts to the individuals and societies named, all that remained of her estate the testatrix devoted to charitable and benevolent purposes, through the instrumentality of certain selected institutions as her residuary legatees, or of her executors where a bequest proves ineffectual. The purpose is evident to leave no part of her estate undisposed of in any contingency. Her solicitude is unmistakable that, beyond what has been given to them, her relatives shall not share in her estate by reason of any portion of it being invalidly disposed of. With her motives, or with her reasons, we are in no wise concerned. If in her testamentary dispositions she has kept within the rules which should govern in the making of wills, those dispositions cannot be successfully assailed by the next of kin.

The main or controlling question, therefore, which presents itself at once in this case, is whether, under the testamentary scheme revealed by these several instruments, in any contingency, the appellants, as the next of kin of the testatrix, can take any benefit by reason of a legacy failing to take effect. If they cannot, it becomes quite unimportant to discuss the many questions which they raise with respect to the capacity of legatees to take, or to the validity of certain bequests.

At the outset, we may as well dispose of the only objection which is made as to any of the societies named as the residuary legatees. It is objected that ‘The New York Society for the Relief of the Ruptured and Crippled’ lacks corporate capacity to take, in that its certificate of incorporation was not acknowledged, and that it was not properly indorsed by the justice of the supreme court. Neither ground of objection is tenable. The proof of the certificate by a subscribing witness was a sufficient compliance with the provisions of the statute; and the indorsement of the certificate as ‘approved’ by the justice was a sufficient warrant for its filing by the...