Riker v. Leo
| Decision Date | 04 June 1889 |
| Citation | 115 N.Y. 93,21 N.E. 719 |
| Parties | RIKER v. LEO et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, First department.
Action to construe the will of Sampson Simson, deceased, brought by John H. Riker, his sole surviving executor, against Sampson Simson Leo, impleaded with the North American Relief Society for the Indigent Jews in Jerusalem, Palestine. A judgment in favor of the society was affirmed by the general term of the supreme court, and Leo appeals.
John E. Parsons, for appellant.
Adolph L. Sanger and Myer S. Isaacs, for the Society.
In this action the plaintiff seeks to have it determined whether, under the will of the decedent, the defendant Leo, or the defendant ‘The North American Relief Society for the Indigent Jews in Jerusalem, Palestine,’ is entitled to the capital of a certain trust fund of $50,000. It was claimed by each, and thus far in the court below the society has been successful. The testator left the fund in trust to his executors, to apply the income thereof to the support of a nephew. When he died the executors were directed to pay the same etc. The defendant Leo, appellant here, is the only child of testator's niece, Jochebed. The respondent society claims to be entitled to the fund as being a responsible corporation, having a permanent fund, established by its charter, the interest of which is to be ‘annually applied to the relief of indigent Jews in Jerusalem, Palestine.’ At the time of testator's death, in 1857, this society had been in existence for about four years. He was then its president, and was one of its incorporators. It was found that no corporation other than this society existed in New York city at the time of the death of testator's nephew which could make any claim to be entitled to the fund; and as to its claim the executors did not think it could legally perform the duties required by the testator.
The question of the right of the society to take this fund is invested with such difficulties as, in my opinion, seem to be insurmountable. Though the clauses under consideration are not written with much carefulness in expression, there is no difficulty in understanding the testator's intentions. They are clear enough, whether with regard to the benevolent purpose, or with regard to the event of its failure, by reason of the nonexistence of such a corporation as he contemplated, to be the trustee of this fund. Nor does the appellant appear in that ungracious attitude of seeking to frustrate a testator's benevolent wishes, which deprives the claim of the adventitious aid of a sympathy in its presentation and prosecution; for, on the face of the matter, there is an obvious distinction between the objects, as expressed by the testator in his testamentary provision, and those for which this society exists. The society's objects are, as appear from its title and charter, to contribute ‘to the relief of the indigent Jews in Jerusalem;’ while those of the testator were to ameliorate the condition of those living there ‘by promoting among them education, arts, and sciences, and by learning them mechanical and agricultural vocations.’ Clearly, in the accomplishment of the one purpose is involved the idea of charity, and of the other an educational system; ideas which, while having their rise in and often owing their fulfillment to the same source,-the benevolence of individuals,-are quite distinct in their aims. Therefore, for the appellant, as the contingent legatee of the testator's bounty, to say that his uncle's will is not being effectuated by paying over the money to this society, seems rather a contention in defense of the will than an attempt to defeat any part of it. In addition, his position is fortified by being in harmony with that taken by the executors. The testator has here constituted a trust with regard to the fund by limiting its use to certain prescribed purposes. The gift is not absolute, but is qualified by imposing upon the taker the performance of certain duties, through the means of the income from the fund. We cannot free the bequest from the conditions imposed upon its use without wholly frustrating the testator's purpose. The ‘desire’ which he expresses has here the force of a command, because it expresses the object testator had in view when making the bequest. It is very clear that where the donee of property is ‘desired’ or ‘requested’ by the testator to dispose of that property in favor of others, those words are imperative and their use will create a trust. See 1 Williams, Ex'rs, 88; Van Dyck v. Van Beuren, 1 Caines, 84.
It may be admitted that the fact that this society may not be the particular donee intended by testator will not control the legal effect of his language, if the society can legally claim the gift, because of a legal capacity to effectuate the benevolent trust. The finding of fact by the learned judge at special term was that the testator did not intend to give this fund to this particular corporation, but to any corporation which could answer the descripting given by his will. Notwithstanding that the intention of the testator with respect to this society may not be controlling, it is impossible for it to be without its effect. The finding of fact could not well have been otherwise, when we consider the circumstances. It is altogether inconceivable that a testator, intending a certain existing corporation to take under his will, should not only fail to name it, but should fail to describe its chartered objects with some approach to accuracy, when he was an incorporator, and its principal officer. The testator was not a layman, but a lawyer; a fact deserving of attention. If we conclude that testator did not suppose this society capable of receiving this fund, are we not bound to scrutinize most closely its right to it, in view of the fact that he must have known, as a founder, what were its scope and projected aims? It is suggested on behalf of the society, as a reason for the testator's not designating it by name, that it must have occurred to him that, before the close of his nephew's life, the society might have discontinued operations, or might have become irresponsible. This is an...
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...we, with deference, cannot be contradicted. Williams v. Williams, 8 N.Y. 525, 536; 2 Page on Wills (2 Ed.), sec. 1044, p. 1717; Riker v. Leo (N. Y.), 21 N.E. 719; Wetmore v. Parker, 52 N.Y. 450; In Havsgaard's Estate (S. D.), 238 N.W. 130, 132; Doan v. Vestry of Parish of Ascension, 103 Md.......
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...The word 'wish' employed by a testator is often equivalent to a command. (Phillips v. Phillips, 112 N.Y. 197, 19 N.E. 411; Riker v. Leo, 115 N.Y. 93, 21 N.E. 719.) The particular words used may be of little (1 Bogert Trusts and Trustees, § 48, p. 344.) In seeking an answer, the intention of......
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