Trs .of Amherst Coll. v. Ritch

• Decision Date: 19 January 1897
• Citation: 45 N.E. 876,151 N.Y. 282
• Parties: TRUSTEES OF AMHERST COLLEGE et al. v. RITCH et al.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 282

45 N.E. 876

TRUSTEES OF AMHERST COLLEGE et al.

v.RITCH et al.

Court of Appeals of New York.

Jan. 19, 1897.

Appeal from supreme court, general term, First department.

Action by the trustees of Amherst College and others against Thomas G. Ritch and others, to establish and enforce a secret trust for the benefit of plaintiffs under the will of Daniel B. Fayerweather, deceased, of which defendants Thomas G. Ritch, Justus L. Bulkley, and Henry B. Vaughan were executors, etc. The other defendants were testator's next of kin, and the executors of the estate of Lucy Fayerweather, deceased, widow of the testator, and certain literary and charitable corporations which claimed under such secret trust and a deed of gift by Thomas G. Ritch and others, as executors, trustees, and residuary legatees. From a judgment of the general term (36 N. Y. Supp. 576) affirming a judgment of the special term (31 N. Y. Supp. 885) in favor of plaintiffs, defendants appeal. Affirmed.

Deniel B. Fayerweather, an old resident of the city of New York, died on the 15th of November, 1890, leaving a will, four codicils, an estate of several millions, consisting chiefly of personal property, and debts amounting to less than $10,000. He left neither child nor descendant, but a widow and three nieces, his only heirs at law and next of kin, survived him. By the first and second articles of his will, which is dated October 6, 1884, he revoked all prior wills by him made and provided for the payment of his debts, funeral expenses, and the costs and charges attending the administration of his estate. By the third article he bequeathed to his wife the sum of $10,000, and by the fourth he devised to her his dwelling house and the furniture therein, his stable, horses, carriages, and the like. By the fifth article he gave his wife an annuity of $15,000 during her life, and directed that the provisions in his will for her benefit should be in lieu of dower or other interest in his estate. By the sixth article he gave to Anna Amelia Joyce an annuity of $1,000 during her life, or so long as she should remain unmarried; and by the seventh he gave to Lucy J. Beardsley $100,000, to Mary W. Achter and Emma S. Drury $10,000 each, and to Charles Hennessey, a porter in his store, $1,000. The eighth, ninth, and tenth articles are as follows: ‘Eighth. After the payment of the legacies and bequests hereinbefore made, I give and bequeath to the Presbyterian Hospital, located in the city of New York, the sum of $25,000; to St. Luke's Hospital, in said city, $25,000; to the Manhattan Eye and Ear Infirmary, in said city, $25,000; to the Women's Hospital, in said city, $10,000; to Mount Sinai Hospital, in said city, $10,000. Ninth. Subject to the conditions and limitations in this paragraph hereinafter contained, I give and bequeath to Bowdoin College, at Brunswick, Maine, the sum of $100,000; to Dartmouth College, at Hanover, New Hampshire, the sum of $100,000; to Williams College, at Williamstown, Massachusetts, the sum of $100,000; to Amherst College, at Amherst, Massachusetts, the sum of $100,000; to Wesleyan University, at Middletown, Connecticut, $100,000; to Yale College, at New Haven, Connecticut, $300,000, of which $100,000 shall be used for the purposes of the Sheffield Scientific School, connected with said college; to Columbia College, in the city of New York, $200,000; to Union Theological Seminary, in the city of New York, the sum of $50,000 as a special fund, to be used for the endowment of what are known as cadetships, such use, however, being subject to the discretion of the board of directors of such institution. I also give and bequeath unto Hamilton College, at Clinton, New York, $100,000; to the University of Rochester, at Rochester, New York, $100,000; to Cornell University, at Ithaca, New York, $200,000; to Lafayette College, at Easton, Pennsylvania, $50,000; to Lincoln University, at Lower Oxford, Pennsylvania, $100,000; to the University of Virginia, at Charlotteville, Virginia, $100,000; to Hampton University, at Hampton, Virginia, $100,000; to Maryville College, Maryville, Tennessee, $100,000; to Marietta College, at Marietta, Ohio $50,000; to Adelbert College, at Cleveland, Ohio, $50,000; to Wabash College, at Crawfordsville, Indiana, $50,000; to Park College, at Parkville, Missouri, $50,000. In case the condition and circumstances of any of the institutions named in this paragraph of my will shall be so changed that, in the judgment of my executors, it is not expedient to pay over all or any of said moneys to such institutions, I authorize and empower my executors, in the exercise of their discretion, to withhold or reduce the amounts herein directed to be given. If my estate shall not be sufficient to pay in full all the legacies and bequests in this, my will, contained, the legacies and bequests provided for prior to this paragraph of my will shall be first paid in full, and the bequests in this paragraph contained shall be paid pro rata. Tenth. All the rest, residue, and remainder of my estate, real and personal, of which I shall die possessed, I give, devise, and bequeath unto my executors, to have and to hold the same, in trust nevertheless, to sell and convert into cash, and divide the same equally among the several corporations mentioned in the ninth paragraph of this, my will, share and share alike.’ By the eleventh and last article he appointed Justus L. Bulkley and Thomas G. Ritch executors of his will and trustees of his estate, with authority to sell and convey, and to do any and all acts in their discretion expedient or necessary to the full execution of the provisions of his will.

Anna Amelia Joyce, who is named in the sixth article, was a sister of Mrs Fayerweather, and lived in the family of the testator, for whom she occasionally acted as an amanuensis. She subsequently married, and is now Mrs. John B. Reynolds. Lucy J. Beardsley, Mary W. Achter, and Emma S. Drury, mentioned in the seventh article, are the heirs at law and next of kin of the testator. Mrs. Drury, having obtained a divorce, resumed her maiden name, and is now known as Emma S. Fayerweather. The property given to the widow by the fourth clause of the will was worth about $100,000. In early life Mr. Fayerweather spent some time in the neighborhood of the University of Virginia, and his experience and associations at that time awakened an interest in college education. His instructions to Mr. Thomas G. Ritch, his legal advisor, who drew this will, were that he wished to dispose of his property in the same general way as in previous wills made by him. In 1875 he executed a will, the contents of which were not disclosed by the evidence, except that it showed an interest in educational institutions. This interest appeared more plainly in a will made in 1880, by which he gave $1,600,000 to 14 colleges, including 12 of those named in the ningh article of the will that is now the subject of controversy. The residuary clause of the will of 1880 was substantially like the tenth article of his last will, made in 1884, except that the beneficiaries were the same 14 colleges to which he had given specific legacies to the amount of $1,600,000, as aforesaid.

On the same day that the will in question was executed, the testator signed a paper of even date, the body of which is as follows: ‘This certifies that I have executed my will of this date, having been advised by my counsel of the provisions and restrictions of the law of this state relative to benevolent corporations. I trust my heirs will permit the provisions of this, my will, to be carried into effect.’ Both the will and this paper were prepared under the direction of Mr. Ritch, and were given to him for safe-keeping as soon as they were executed. The only statutes of this state imposing restrictions upon the disposition of property that are applicable to this will are chapter 319 of the Laws of 1848, as amended, which relates to the amount of property that benevolent corporations can receive by devise, and chapter 360 of the Laws of 1860, which forbids a testator, having a wife, child, or parent, to give more than one half of his estate to charitable, benevolent, or literary institutions. The bequests to the 5 hospitals named in the eighth clause amount to $95,000, while those to the 20 colleges named in the ninth clause amount to $2,100,000, so that, under the operation of the statute last named, the tenth clause of the will was valid only to the extent of the difference between $2,195,000 and one-half of the estate remaining after the payment of debts.

About two months after he made his will, Mr. Fayerweather executed his first codicil, dated December 13, 1884, the disposing part of which is in these words: ‘(1) I hereby ratify and confirm my said will in every respect, except so far as the same is modified by this codicil. (2) I hereby revoke the tenth paragraph of my said will, which is in the words following: [That paragraph was here quoted literally and inclosed by quotation marks.] (3) All the rest and residue of my estate, of whatsoever character, and wheresoever situated the same may be, of which I shall die possessed, and remaining after the provisions of the first nine paragraphs of my will have been duly complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley and Thomas G. Ritch, named in the eleventh paragraph of my said will, to them and their heirs forever.’ Mr. Ritch, who prepared this codicil, also prepared a paper, which was substantially copied by the testator and signed by him, bearing the date of December 11, 1884, and headed ‘Private Memorandum,’ of which the following is a copy: ‘I have made Messrs. Bulkley and Ritch my residuary legatees, in the confidence that thereby my intentions as expressed in my will shall be carried into effect, and without litigations on the part of any person or persons interested. In case of my...