Robb v. Washington

• Decision Date: 21 June 1906
• Parties: ROBB v. WASHINGTON AND JEFFERSON COLLEGE et al.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 485

78 N.E. 359

ROBB

v.WASHINGTON AND JEFFERSON COLLEGE et al.

Court of Appeals of New York.

June 21, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Robert S. Robb, against the Washington and Jefferson College and others. From a judgment of the Appellate Division (93 N. Y. Supp. 92,103 App. Div. 327), reversing the judgment of the Trial Term in favor of plaintiff, and dismissing the complaint, plaintiff appeals. Modified and affirmed.

On July 23, 1902, John H. Wallace made his last will by which he bequeathed to his wife the sum of $10,000 in pursuance of an antenuptial agreement between the parties, to certain other legatees sums outright aggregating $32,000, provided for annuities to seven persons during their respective lives and gave the remainder of his estate to Washington and Jefferson College, located at Washington, in the state of Pennsylvania. After consultation with the authorities of the college respecting the application of his bounty, Mr. Wallace, on September 5th, executed and delivered to the college a declaration of trust the material parts of which, after a recital of his desire to irrevocably appropriate and settle certain securities on the college for the establishment and maintenance of a professorship of rhetoric and oratory, are as follows: ‘Now, therefore, I, John H. Wallace, do hereby declare that I have this day irrevocably appropriated and set aside securities of the value of one hundred and twenty-nine thousand dollars, or more, said securities being now in my possession and being hereinafter more particularly enumerated, and that I hold the same in trust and special confidence for the following uses and purposes and none other, to wit: First. To pay over upon the first day of October in each and every year during my natural life to said Washington and Jefferson College, upon the receipts of its treasurer, out of the net income arising from said securities, the sum of eighteen hundred dollars to be applied to the maintenance of said professorship. Second. To take and apply to my own individual use, during the term of my natural life, all the residue of the net annual income of said securities. Third. From and immediately after my decease I hereby constitute and appoint the said Washington and Jefferson College trustee in my room and stead and direct and empower said college to immediately take and hold said securities as I now hold them in trust to presently pay out of the principal of the same as follows.’ Here follow gifts to the legatees named in his will. ‘* * * After thirty-two thousand dollars have been paid by Washington and Jefferson College, my successor in this trust, out of the principal sum of the securities therein embraced, and hereinafter enumerated, the remaining securities shall be held by said college in trust to pay out of the net income annually, counting from the date of my death, the following sums, to wit.’ The same annuitants mentioned in his will. ‘The balance of the net income of said remaining securities during the lives of said annuitants (and after the death of the survivor of them) all the net income thereof shall be devoted by the said Washington and Jefferson College to perpetually maintain a professorship in rhetoric and oratory to be called the Wallace Professorship of Rhetoric and Oratory.’ The declaration contains an enumeration of the particular securities the subject of the trust, which amount in the aggregate to about $130,000. The settler reserved to himself the right to modify the provision as to the legacies and annuities, provided he should not thereby increase their aggregate amount. Having executed this declaration, Mr. Wallace thereupon made a codicil to his will by which he revoked all the legacies and annuities except that to his wife and the residuary gift to the college. Mr. Wallace died in May, 1903, leaving an estate not exceeding $10,000 in addition to the securities mentioned in the declaration of trust. The plaintiff brought this action as one of the next of kin of the deceased to have the trust deed declared inoperative, the securities therein mentioned adjudged part of the testator's estate, and that so much of the legacy to the college as exceeded in value one-half of the testator's estate be distributed among his next of kin as in the case of intestacy. The case was decided by the Trial Term in favor of the plaintiff. The Appellate Division reversed the judgment of the Trial Term and awarded the defendant final judgment dismissing the complaint, with costs.Henry W. Goodrich, for appellant.

M. Linn Bruce and John L. Hill, for respondents.

CULLEN, C. J. (after stating the facts).

One of the learned counsel for the respondents challenges the right of the plaintiff to maintain this action and to take advantage of the prohibition contained in chapter 360, p. 607, of the Laws of 1860, which enacts that ‘no person having a husband, wife, child or parent shall, by his or her last will and testament, devise or bequeath to any charitable, etc., corporation * * * more than one-half of his or her estate,’ because he is not one of the relatives mentioned in the statute, but only a collateral. The Appellate Division overruled this claim, and rightly so, for the question is not an open one. Forty years ago, in Harris v. American Bible Society, 2 Abb. Dec. 316, this court held that the provision of the statute may be insisted on by any person who derives a benefit therefrom, although not one of the relatives designated in the statute. The case has been repeatedly followed, and its authority has never been questioned. As late as the 136th New York, this court said in Matter of Will of Walker, 136 N. Y. 20, 32 N. E. 633, that a will is to be read as if the statutory restriction was part of it and it had in terms provided that the legacies or devises given by it to charitable corporations should not exceed one-half of the estate. Though the plaintiff can take advantage of the statute, there is no advantage to be taken in this case if the deed or declaration of trust stands, for in that event the legacy to the widow exceeds one-half of the testator's estate. The learned Appellate Division was of the opinion that there was proved a parol agreement antedating the declaration of trust by which the college was to receive the securities mentioned in the declaration in consideration of its founding and maintaining the professorial chair. We think not. The testimony shows merely indefinite negotiations which were not consummated until the execution of the declaration of trust, and into which the prior conversations must be deemed to have merged. We are, therefore, brought to a consideration of the character, effect, and validity of the declaration of trust and of the several objections to it raised by the counsel for the appellant. That the execution and delivery to the college of the declaration or deed was sufficient to create a trust if the terms of the trust were not illegal we think very clear. While to make an effective gift delivery to the donee is essential (Young v. Young, 80 N. Y. 422, 36 Am. Rep. 634), that is not necessary in the creation of a trust. The distinction between the two cases is pointed out in the case cited, and in the later one of Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531. In the case of personal property an unequivocal declaration of the trust by the settlor impresses it with a trust character, and converts his legal title to that of trustee for the person for whose benefit the trust is created. Martin v. Funk, 75 N. Y. 134, 31 Am. Rep. 446; Young v. Young, supra; Beaver v. Beaver, supra. Here the founder of the trust executed the declaration under seal and delivered it to one of the cestuis que trustent. This, under all the authorities, was sufficient.

It is contended, however, that if the deed of trust constituted two separate consecutive trusts, one during the life of the founder, the other after his deceased, as the Appellate Division has held, then the second trust was testamentary in its character and the trust deed not having been executed in compliance with the statutory requirement for the execution of wills, fails. This was the ground on which the trial court based its decision. This argument is based on a clear misapprehension of the distinction between a testamentary instrument and a deed. Doubtless the second trust created by the declaration was not to take effect in possession or enjoyment till the death of the founder. But this was...