Sherman v. Richmond Hose Co. No. 2

• Decision Date: 08 March 1921
• Citation: 130 N.E. 613,230 N.Y. 462
• Parties: SHERMAN v. RICHMOND HOSE CO. NO. 2 et al.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 462

130 N.E. 613

SHERMAN

v.RICHMOND HOSE CO. NO. 2 et al.

Court of Appeals of New York.

March 8, 1921.

Action by Addison M. Sherman against the Richmond Hose Company No. 2 and others. From a judgment of the Appellate Division (186 App. Div. 417,175 N. Y. Supp. 8) affirming in part and reversing in part a judgment of the Special Term dismissing the complaint on the merits, the plaintiff and the named defendant and certain other defendants appeal.

Judgment of Appellate Division reversed, and that of the Appellate Term affirmed. and that of the Appellate Term affirmed.

Pound and Crane, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Irving W. Cole and Hamilton Ward, both of Buffalo, and William H. Coon and Edward A. Washburn, both of Batavia, for appellants.

Charles D. Newton, Atty. Gen. (Alexander T. Selkirk, of Albany, and James Le Seur, of Batavia, of counsel), for respondents.

ANDREWS, J.

Mrs. Kenny died in 1905. By her will she bequeathed $10,000 to the Richmond Hose Company, ‘to be kept at all times intact and the income derived from the safe and judicious investment thereof to be devoted to the reasonable and proper uses of said company for whatever purposes its members acting as an organization may see fit to direct.’ If, however, this legacy for any reason ‘shall lapse or fail or for any cause not take effect in whole or in part,’ she bequeathed it to Mr. Sherman and Mr. Atwater or to the one who survived her. Mr. Atwater died in 1910.

The Richmond Hose Company was a corporation organized in 1883 under chapter 397 of the Laws of 1873, for the purpose of aiding in the suppression of fires in the village of Batavia. It could only engage under the statute in such business as properly belongs to hose companies. In taking part in the prevention of fires it was placed under the control and subject to the orders of the village fire authorities. Annually its trustees must file an inventory of its property and an affidavit that it has not directly or indirectly engaged in any other business. Before its certificate of incorporation could be filed it had to be approved by the trustees of the village. It might take and hold personal property bequeathed to it, and it was further said to be capable of taking and holding property for the purpose of its incorporation and for no other purpose. It was named after Dean Richmond, the father of Mrs. Kenny. To it the legacy was paid in 1906.

[1] This gift created no trust. And, the title of the property vesting at once, there was no suspension of its ownership or of its alienability. Matter of Griffin, 167 N. Y. 71, 60 N. E. 284;Wetmore v. Parker, 52 N. Y. 450. The purpose for which the gift was made is reasonably clear. The income is to be applied ‘to the proper uses of the company.’ These purposes are defined by its certificate of incorporation and by the statute. They are uses incidental to the end of fire protection for the village.

[2] Whether the hose company is a charitable corporation within the meaning of that term wherever it may be used in our statutes we need not decide. Section 61 of the Real Property Law (Consol. Laws, c. 50), as to accumulations, and section 221 of the Tax Law (Consol. Laws, c. 60), as to taxable transfers, refer generally to such corporations. So does section 4 of the Tax Law, but this latter reference was not thought sufficient to cover the real property of an incorporated association of volunteer firemen. Section 4, subd. 8. Yet the provision that formerly existed. as to the amount that might be given by will to a body incorporated under chapter 397 by one having a wife, child, or parent has been repealed very possibly with the idea that the matter is sufficiently covered by section 17 of the Decedent Estate Law (Consol. Laws, c. 13). Be that as it may, it is certainly a charitable corporation, and this is a charitable bequest in the broader sense of the term.

[3] The doctrine of charitable uses involving the idea of a trust and indefinite beneficiaries did not become part of the law of New York. Holmes v. Mead, 52 N. Y. 332. We thought it better to limit a charitable gift in perpetuity to those instances where it was made absolutely to a corporation whose objects were approved by the Legislature and which was authorized to accept it under such conditions as the Legislature might impose. Levy v. Levy, 33 N. Y. 97;Holland v. Alcock, 108 N. Y. 312, 16 N. E. 305,2 Am. St. Rep. 420. Yet the kind of uses called charitable are of assistance in deciding what is a charitable purpose. The Statute of 43 Elizabeth enumerates what were considered charitable uses, and subsequently a charitable use was said either to be one included in this enumeration or one created for some analogous public purpose. The statute spoke of such a use as for the repairs of bridges and highways as well as of uses for religious, educational, and benevolent purposes, and it was held that a charitable use is not confined to the relief of the poor or to the assistance of learning and religion, but includes the advancement of objects of general public utility. Thus a trust that tends to reduce taxation and lessen the burdens of government was a charitable use. Trustees of Newcastle Common v. Megginson, 1 Boyce (24 Del.) 361,77 Atl. 565, Ann. Cas. 1914A, 1207;Matter of Graves, etc., 242 Ill. 23, 89 N. E. 672,24 L. R. A. (N. S.) 283, 134 Am. St. Rep. 302,17 Ann. Cas. 137;Coggeshall v. Pelton, 7 Johns. Ch. 292,11 Am. Dec. 471;Burbank v. Burbank, 152 Mass. 254, 25 N. E. 427,9 L. R. A. 748. Such is a gift to maintain public parks (Burr v. Boston, 208 Mass. 537, 95 N. E. 208,34 L. R. A. [N. S.] 143); or to plant shade trees (Cresson's Appeal, 30 Pa. 437); to buy lifeboats (Matter of Richardson, 56 L. J. Ch. 784); to pave and light streets and furnish water (Attorney General v. Heelis, 2 Sim. & Stu. 67); to benefit and ornament a town (Mayor, etc., of Faversham v. Ryder, 5 De G., M. & G. 350); to support bridges (Porter's Case, 1 Coke, 26); or finally to benefit a volunteer military corps (Alt v. Stratheden, 3 Chan. [1894] 265). In view of these decisions there can be little question that as has been held in Pennsylvania a bequest to a fire company is given for charitable purposes.Bethlehem Borough v. Perseverance Fire Co., 81 Pa. 445. The case of Neptune F. E. & Hose Co. v. Board of Education, 166 Ky. 1, 178 S. W. 1138, Ann. Cas. 1917C, 789, is not in conflict with these views. The definition of the Kentucky Statutes as to a public charity, the purposes of this particular corporation as defined in its act of incorporation, its freedom from public control, and the failure to impose upon it any public duties differentiated it from such a corporation as that which we are now considering.

The bequest we are considering was given for the advancement of an object of general public utility. It was for a public purpose, even if this purpose was not charitable within the common and narrow sense of the words. British Museum v. White, 2 Sim. & Stu. 596. It does carry the implication of public benefit, and ‘when the purpose accomplished is that of public usefulness unstained by personal, private, or selfish considerations, its charitable character insures its validity.’ Matter of MacDowell, 217 N. Y. 454, 460,112 N. E. 177, 178 (L. R. A. 1916-E, 1246, Ann. Cas. 1917E, 853. The mere fact that the gift is intended as a memorial does not affect its public character. Wilcox v. Attorney General, 207 Mass. 198, 93 N. E. 599, Ann. Cas. 1912A, 833.

[4] It being, therefore, for a charitable purpose, to a corporation authorized to receive it, the hose company held this legacy for ten years. It took it for the purpose of its organization. To this end it was bound to devote it. To divert it to other purposes would have exceeded its powers. To do so would subject it to action by the state. Matter of Griffin, 167 N. Y. 71, 60 N. E. 284; Mormon Church v. U. S., 136 U. S. 1, 57, 10 Sup. Ct. 792, 34 L. Ed. 478.

In 1915 the village of Batavia was dissolved, and the city of Batavia took its place. It was determined that the city should have a paid fire department. The Richmond Hose Company as a consequence decided to dissolve and voluntary proceedings for that purpose were begun. A contest immediately arose as to the disposition which should be made of Mrs. Kenny's legacy, and it is to settle that contest that this action was begun.

[5] As this bequest was of personal property, assuming it was upon a condition subsequent, the condition would not become operative unless upon its breach there was a gift over, and a general gift of the residue is not such a gift over. Matter of Arrowsmith, 162 App. Div. 623,147 N. Y. Supp. 1016, affirmed 213 N. Y. 704, 108 N. E. 1089. We do not understand, however, that any claim to this fund is made by the administrator and trustee of Mrs. Kenny's estate.

It is said, however, that the gift to the hose company was subject to a conditional limitation. The contingency which limited the title of the company has arisen. Therefore the title vests either in Mr. Sherman or in him and in the next of kin of Mr. Atwater. It is difficult to see any basis for the first claim. Concededly the limitation over, if one there be, was to them as individuals, and not as trustees. Whatever title vested in them on Mrs. Kenny's death vested in them as tenants in common. Such an expectant estate is descendible and alienable. But, unless some estate did in fact vest in one or both, we need not discuss their respective rights. It is, however, just to note that Mr. Sherman disclaims any desire to take the fund for his individual benefit. He wishes to use it for such charities as he believes Mrs. Kenny would approve.

[6][7][8][10] Is the gift which vested in the hose company, therefore, subject to a conditional limitation? Was that the intention of the testatrix? Does the language of the will require such a construction? If ‘the legacy shall lapse...