Tilden v. Green

• Decision Date: 27 October 1891
• Citation: 28 N.E. 880,130 N.Y. 29
• Parties: TILDEN v. GREEN et al.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 29

28 N.E. 880

TILDEN

v.GREEN et al.

Court of Appeals of New York, Second Division.

Oct. 27, 1891.

Appeal from supreme court, general term, first department.

Action by George H. Tilden against Andrew H. Green, John Bigelow, and George W. Smith, as executors and trustees under the last will and testament of Samuel J. Tilden, deceased, and others, for the construction of such will. The judgment of the special term sustaining the will was reversed by the general term, and defendants appealed to this court. Affirmed.

BRADLEY, POTTER, and VANN, JJ., dissenting 7 N. Y. Supp. 382, affirmed.

James C. Carter, Daniel G. Rollins, and Geo. F. Comstock, for appellants.

Joseph H. Choate, Delos C. McCurdy, and Lyman D. brewster, for respondent.

BROWN, J.

Samuel J. Tilden died in August, 1886, leaving a last will and testament dated in April, 1884. He left surviving him, as his only next of kin and heirs at law, one sister, two nephews, one of whom is the plaintiff in this action, and four nieces. The defendants Bigelow, Green, and Smith were by the will appointed the executors thereof and trustees of the trusts therein created, and, the will having been duly admitted to probate in October, 1886, they immediately qualified, and entered upon the discharge of their duties as such. This action was brought to obtain a construction of the will. By the complaint the 33d, 34th, and 35th articles were assailed as being invalid, but upon the trial no question was raised as to the two first named, and no determination in respect thereto was made. The supreme court held that the effect of the 35th and 39th articles of the will was to create one general trust for charitable purposes, embracing the entire residuary estate, and vest in the trustees a discretion with respect to the disposition of such estate by them; that the testator did not intend to and did not confer upon any person or persons any enforceable right to any portion of said residuary estate, and did not designate any beneficiary who was or would be entitled to demand the execution of the trust in his or its behalf, and declared the provision of the will relating to the disposal of the residuary estate for such reasons illegal and void. It is essential to a proper understanding of the will to read the two articles above named together, and they are here quoted, the last being placed first: ‘ Thirty-ninth. I hereby devise and bequeath to my said executors and trustees, and to their successors in the trust hereby created, and to the survivors or survivor of them, all the rest, residue, and remainder of all the property, real and personal, of whatever name or nature, and wheresoever situated, or which I may be seised or possessed, or to which I may be entitled at the time of my decease, which may remain after instituting the several trusts for the benefit of specific persons; and, after making provision for the specific bequests and objects as herein directed, to have and to hold the same unto my said executors and trustees, and to their successors in the trust hereby created, and the survivors or survivor of them in trust, to possess, hold, manage, and take care of the same during a period not exceeding two lives in being; that is to say, the lives of my niece Ruby S. Tilden, and my grandniece Susie Whittlesey, and until the decease of the survivor of the said two persons, and, after deducting all necessary and proper expenses, to apply the same, and the proceeds thereof, to the objects and purposes mentioned in this, my will.’ ‘ Thirty-fifth. I request my said executors and trustees to obtain, as speedily as possible, from the legislature an act of incorporation of an institution to be known as the ‘Tilden Trust,’ with capacity to establish and maintain a free library and reading-room in the city of New York, and to promote such scientific and educational objects as my said executors and trustees may more particularly designate. Such corporation shall have not less than five trustees, with power to fill vacancies in their number; and in case said institution shall be incorporated in a form and manner satisfactory to my said executors and trustees during the life-time of the survivor of the two lives in being upon which the trust of my general estate herein created is limited, towit, the lives of Ruby S. Tilden and Susie Whittlesey, I hereby authorize my said executors and trustees to organize the said corporation, designate the first trustees thereof, and to convey or apply to the use of the same the rest, residue, and remainder of all of my real and personal estate not specifically disposed of by this instrument, or so much thereof as they may deem expedient; but subject, nevertheless, to the special trusts herein directed to be constituted for particular persons, and to the obligations to make and keep good the said special trusts, provided that the said corporation shall be authorized by law to assume the obligations. But in case such institution shall not be so incorporated during the life-time of the survivor of the said Ruby S. Tilden and Susie Whittlesey, or if for any cause or reason my said executors and trustees shall deem it inexpedient to convey said rest, residue, and remainder, or any part thereof, to apply the same, or any part thereof, to said institution, I authorize my said executors and trustees to apply the rest, residue, and remainder of my property, real and personal, after making good the said special trusts herein directed to be constituted, or such portion thereof as they may not deem it expedient to apply to its use, to such charitable, educational, and scientific purposes as, in the judgment of my said executors and trustees, will render the said rest, residue, and remainder of my property most widely and substantially beneficial to the interests of mankind.'

On March 26, 1887, subsequent to the commencement of this action, the legislature passed an act incorporating the Tilden Trust, and authorizing it to establish and maintain a free library and reading-room in the city of New York. The institution was organized, and the executors and trustees made to it a conveyance of the residuary estate, and the conveyance was formally accepted by the trustees thereof.

The law is settled in this state that a certain designated beneficiary is essential to the creation of a valid trust. The remark of Judge WRIGHT in Levy v. Levy, 33 N. Y. 107, that ‘if there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust, without a certain beneficiary who can claim its enforcement, is void,’ has been repeated and reiterated by recent decisions of this court, (Prichard v. Thompson, 95 N. Y. 76;Holland v. Alcock, 108 N. Y. 312, 16 N. E. Rep. 305; Read v. Williams, 125 N. Y. 560, 26 N. E. Rep. 730;) and the objection is not obviated by the existence of a power in the trustees to select a beneficiary, unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain who were the objects of the power. The equitable rule that prevailed in the English court of chancery known as the ‘ cy pres doctrine,’ and which was applied to uphold gifts for charitable purposes when no beneficiary was named, has no place in the jurisprudence of this state. Holmes v. Mead, 52 N. Y. 332; Holland v. Alcock, supra. If the Tilden Trust is but one of the beneficiaries which the trustees may select as an object of the testator's bounty, then it is clear and conceded by the appellants that the power conferred by the will upon the executors is void for indefiniteness and uncertainty in objects and purposes. The range of selection is unlimited. It is not confined to charitable institutions of this state, or of the United States, but embraces the whole world. Nothing could be more indefinite or uncertain, and broader and more unlimited power could not be conferred than to apply the estate to ‘such charitable, educational, and scientific purposes as in the judgment of my executors most widely said residue of my property most widely and substantially beneficial to mankind.’ ‘A charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well-doing and well-being of social man.’ Perry, Trusts, § 637. ‘Such a power is distinctly in contravention of the policy of the statute of wills. It substitutes for the will of the testator the will of the doness of the power, and makes the latter controlling in the disposition of the testator's property. That cannot well be said to be a disposition by the will of the testator with which the testator had nothing to do, except to create an authority in another to dispose of the property according to the will of the donees of the power.’ Read v. Williams, supra, page 569, 125 N. Y., and page 731, 26 N. E. Rep.

Unless, therefore, within the rules which control courts in the construction of wills, we can separate the provision in reference to the Tilden Trust from the general direction as to the disposition of the testator's residuary estate contained in the last clause of the thirty-fifth article, and find therein that a preferential right to some or all of such estate is given to that institution when incorporated, and one which the court, at the suit of said institution, could enforce within the two lives which limit the trust, we must, within the principle of the cases cited, declare such provision of the will invalid, and affirm the judgment of the supreme court. The appellants claim that the power conferred upon the executors to endow the Tilden Trust may be upheld independently of the invalidity of the power given to apply the estate to such charities as would most widely benefit mankind. The proposition is that by the thirty-fifth article the testator made two distinct alternative provisions for the disposition of his residuary...