St. John v. Andrews Inst. for Girls

• Decision Date: 25 February 1908
• Citation: 83 N.E. 981,191 N.Y. 254
• Parties: ST. JOHN v. ANDREWS INSTITUTE FOR GIRLS et al.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 254

83 N.E. 981

ST. JOHN

v.ANDREWS INSTITUTE FOR GIRLS et al.

Court of Appeals of New York.

Feb. 25, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Gamaliel C. St. John, executor of, and trustee under, the will of Wallace C. Andrews, deceased, against the Andrews Institute for Girls and others. From a judgment of the Appellate Division (117 App. Div. 698, 102 N. Y. S. 808), affirming a judgment construing the will entered on a decision on a trial at Special Term, the Smithsonian Institution and other defendants appeal. Modified and affirmed.

Harold Nathan, for appellants Norman C. Andrews and others.

Frank W. Hackett and Edmund Wetmore, for appellant Smithsonian institution.

Henry M. Earle, for appellant Edith A. Logan.

Ferdinand Shack, for appellant Julia A. Bruce.

James W. Hawes and William M. Cohen, for respondent Gamaliel C. St. john.

Henry Wollman and Virgil P. Kline, for respondent the Andrews Institute for Girls.

Herbert H. Gibbs, for respondent Gamaliel C. St. John, individually and as executor, etc.

William S. Jackson, Atty. Gen. (John D. Lynn, of counsel), for respondent state of New York.

CHASE, J.

Wallace C. Andrews made his will November 12, 1891. He died April 7, 1899, a resident of the county and state of New York, where his will was duly probated on the 22d day of May, 1899, and letters testamentary were thereupon issued to the plaintiff. This action is brought to procure a construction of said will, and to have the rights of the parties thereunder declared. The judgment rendered herein at the Special Term has been unanimously affirmed by the Appellate Division, and there is no contention in this court about the facts as found at the Special Term.

The testator by his will gives certain general legacies. He then gives all the rest and residue of his estate to his executor and executrix in trust ‘to collect and receive the rents, issues, income and profits thereof and pay them over from time to time to my [his] wife * * * for her own use for and during her natural life and upon her death to dispose of my [his] said residuary estate as hereinafter [thereinafter] provided.’ Upon the death of his wife he devised and bequeathed the sum of $500,000 if his estate should exceed that sum, and, if it should not exceed that sum, then his entire estate as by his will specifically directed. The following five paragraphs of the will are each important in the consideration of the questions which we will herein discuss, viz.:

‘Fourth. Upon the death of my said wife, I devise and bequeath to the corporation hereinafter directed to be formed, all the excess and residue of my estate over the sum of five hundred thousand dollars specified in the third paragraph hereof.

‘Fifth. I direct my executor and executrix as soon as practicable after my decease and during the lives of my said wife and her said brother or the life of the longest liver of them, to procure under the laws of the state of Ohio, an incorporation to be formed with proper powers for the purpose of establishing an institution on the farm known as the Williams Farm, formerly owned by me and now owned by my wife, fronting on Erie street in the town of Willoughby, Lake county, Ohio, or if said farm be for any cause not available, then on other suitable premises in the said town of Willoughby, for the free education of girls and for their support in proper cases during education with a special view toward rendering them self-supporting.

‘Said institution shall contain, among others, a sewing department, cooking department, designing department and departments of phonography and typewriting and other useful work that would afford the pupils employment in life including such new discoveries and inventions as may be made from time to time tending to enlarge the opportunities for useful and honorable employment for women and such as will aid them in obtaining honorable and independent positions in life. Such school to be open only to girls between the ages of ten and sixteen, both inclusive.

‘Not exceeding one-tenth of the sum devoted to the said institution by the fourth paragraph hereof may be used for the erection of suitable buildings therefor on the said farm or in the contingency above specified for the purchase of suitable premises in said town and the erection of such buildings thereon and the income of the remaining ninetenths shall be devoted to the support and maintenance of said institution.

‘If, when the said sum shall be received by the said corporation the one-tenth shall not, in the judgment of the directors, be sufficient for such erection or such purchase and erection as the case may be, the whole sum may, in their discretion, be allowed to accumulate until the one-tenth thereof with its accumulation shall be so sufficient when such one-tenth may be used therefor, while the income of the remaining nine-tenths of said sum and accumulations shall be devoted to the support and maintenance of said institution.

‘The charter of the said corporation shall also provide if and so far as may be consistent with law and practicable for the management of the said corporation by a board of five directors, to consist of the Governor for the time being of the state of Ohio, the member of Congress for the time being for the congressional district embracing the said town of Willoughby, the treasurer for the time being of said county of Lake, the mayor for the time being of Willoughby and the said Gamaliel C. St. John and for the choice of a resident of Willoughby by the said Governor as successor to the said St. John as often as the fifth place shall become or be vacant.

‘Sixth. If my said wife shall die before me, then the dispositions provided for in the third and fourth paragraphs hereof shall take effect upon my death.

‘Seventh. I direct my said executor and executrix as soon as they may deem advisable, but within two years after my decease, to sell all my real estate and invest the proceeds in interest paying securities and as to all my estate I give them and my trustees power to invest and reinvest the same or any part thereof having regard both to income and safety.

‘Eighth. In case my intention with respect to the said institution for girls shall because of illegality fail, or become impossible of realization, I then devise and bequeath the sum intended for it to the Smithsonian Institution at Washington, District of Columbia, to be devoted to the purpose for which it was established.’

He appointed his wife executrix and the plaintiff, his brother-in-law, executor of his will.

At the time of making said will the testator had a wife, but did not have a child or parent living. The testator and Mrs. Andrews perished in a fire which destroyed their home in the city of New York in the early morning of April 7, 1899, and it is found as a fact that as between the said Wallace C. Andrews and his wife, Margaret M. St. John Andrews, survivorship is unascertainable. It is also found that the said Wallace C. Andrews at the time of his death did not have a wife, child, or parent. On or about the 13th day of May, 1902, the plaintiff, as the surviving executor named in the will of the testator, procured an incorporation to be formed under the laws of the state of Ohio entitled ‘The Andrews Institute for Girls,’ which corporation it is found has capacity under the laws of the state of Ohio to take the gift under the fourth, fifth, and sixth clauses of said will; and it is also found that said clauses of said will were at the time of testator's death valid under the laws of the state of Ohio. The Smithsonian Institution was established in the District of Columbia by act of Congress, and by such act it was given power to receive money or other property by gift, bequest, or devise.

The Special Term held that the Andrews Institute for Girls took under the will the entire rest and residue of the testator's estate over and above said $500,000, together with the income which accrued and accumulated thereon between the testator's death and the date of the incorporation of said institute. The Smithsonian Institution contends: (1) That as Mrs. Andrews did not survive her husband, and the proposed Ohio corporation was not in existence at the time of the death of Mr. Andrews, the gift to the proposed corporation failed. (2) That the so-called Andrews Institute for Girls has no legal existence. (3) That the so-called Andrews Institute for Girls is not the corporation that the testator directed his executors to procure to be formed, and that it is therefore, incapable of taking the bequest. The Smithsonian Institution and the next of kin of the testator severally contend that the attempted bequest to the Ohio corporation violates the provisions of chapter 360, p. 607, of the Laws of 1860. Although the appellants unite in such contention they do not agree as to the effect of sustaining their contention. The Smithsonian Institution contends that the gift to the Ohio corporation is an entirety, and that as it violates the provisions of chapter 360, p. 607, of the Laws of 1860, it wholly fails for illegality, and that the gift passes under the will to it. The next of kin contend that the gift to the extent of one-half of the testator's estate is valid, but that the testator did not have testamentary capacity to give more than one-half of his estate to the proposed Ohio corporation, and that the excess is undisposed of by the will and passes to them under the statutes of this state. The next of kin contend that the income on the rest and residue of the estate accruing between the death of the testator and the incorporation of the Andrews Institute for Girls could not be accumulated for a corporation not in existence, and that, as such income is not bequeathed by the testator's will, it passes to them under the statute of distributions.

At the time the testator made his will, his wife made her will by which she gave to him the...