Rothschild v. Schiff

• Decision Date: 23 April 1907
• Citation: 80 N.E. 1030,188 N.Y. 327
• Parties: ROTHSCHILD et al. v. SCHIFF et al.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 327

80 N.E. 1030

ROTHSCHILD et al.

v.SCHIFF et al.

Court of Appeals of New York.

April 23, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Jacob Rothschild and others as executors, etc., against Jacob H. Schiff and others to obtain a judicial construction of a will. From so much of a judgment of the Appellate Division, First Department (92 N. Y. Supp. 1076,103 App. Div. 235), as modified a judgment entered on the report of a referee, said Schiff and others appeal. Modified, and, as modified, affirmed.

Werner, J., dissenting in part.

Louis Marshall, for appellants.

John Crawford, for respondents.

HAIGHT, J.

This action was brought by the executors of and trustees under the last will and testament of Simon Goldenberg, deceased, to obtain a judicial construction of the fifteenth subdivision of the twenty-third clause of his will and for a determination as to whether it was valid.

The testator in his will, after providing for the payment of his just debts and funeral expenses, made provision for the erection of a mausoleum in a cemetery designated, and then made a number of bequests to charitable or educational corporations. He then gave and devised all the rest, residue, and remainder of his estate to his executors, in trust to collect the rents, issues, and profits, and to pay the same over to his widow during her life. After her decease he gave from the principal of the trust a number of legacies to relatives and friends, and then, by the clause in question provided: ‘I give, devise and bequeath all the rest, residue and remainder of my estate, together with such other estate, both real and personal, as to which for any cause I may die intestate, after the payment of the foregoing bequests, to Jacob H. Fleisch, Jacob H. Schiff, Julius Goldman, M. Warley Platzek, Isaac Wallach, Jacob Rothschild, Simon Ottenberg, Joel Goldenberg and Louis Seeberger, or the survivors of them, all of the city, county and state of New York; and it is my wish that said persons apply the said rest, residue and remainder of my estate and property to the creation of some charitable or educational institution in the city of New York. I desire to place no restriction upon them with regard to the character of such charitable or educational institution, excepting that I desire the same to be non-sectarian, and that I do not desire to have the fund hereby created to be divided between existing charities (but this not to preclude said legatees from enlarging or placing upon a solid foundation an existing charitable institution if they shall deem it advisable so to do), having full confidence that they will found a charity which will add something to the physical, moral or intellectual improvement of those for whose benefit they will create such institution.’

The action was tried before a referee, and upon such trial evidence was taken under an answer interposed by the appellants, in which the court was asked to determine the disposition that should be made of the property so devised or bequeathed, and upon such evidence the referee found that ‘it would not be advisable to establish an independent institution, charitable or educational in its nature, with the residuary estate of Mr. Goldenberg, the testator, since it would not be practicable to create an efficient institution with no greater endowment than the sum which the will made available for the purpose, and a majority of the trustees named in the clause in question have reached the conclusion that the only institution to which the testator's ideas as contained in his will could be applied is the Hebrew Technical Institute of the City of New York.’ The referee also found that the clause of the will in controversy was valid and ordered judgment to that effect, and that, upon the death of the life tenant, the fund should be used for the benefit of such institute. Appeal was thereupon taken from so much of the judgment as adjudged that the fund should be given to the institute. The Appellate Division, upon its review, not only modified the judgment by striking out the provision alluded to, but inserted a provision to the effect that the persons to whom the trust estate had been given, or the survivors of them, should not determine the use to which such estate should be devoted until after the property had been turned over to them upon the death of the life tenant. No appeal has been taken from the judgment in so far as it determined the provision of the will alluded to, to be valid. It consequently follows that the only question presented upon this review pertains to that part of the judgment which undertook to dispose of the property of the trust estate after the death of the testator's widow.

Again, referring to the provision...