By the thirtieth clause of her will Adelaide Richmond Kenny of Batavia, New York, disposed of a legacy of $10,000 as follows:
"To Richmond Hose Company, No. 2, of Batavia, I give and bequeath Ten thousand dollars, to be kept at all times intact, and the income derived from the safe and judicious investment thereof to be devoted to the reasonable *Page 476 and proper uses of said company, for whatever purposes its members, acting as an organization, may see fit to direct."
The thirty-fourth clause of the will reads as follows:
"If for any reason the legacies contained in this Will to any of the church societies, to the Young Men's Christian Association, The Women's Hospital Association, the Trustees of Union Free School District Number Two of the Town of Batavia, the Batavia Cemetery Association, Richmond Hose Co. No. 2, or the bequest of Six thousand dollars to the Holland Purchase Historical Society, or any one or more of said legacies, shall lapse or fail, or for any cause not take effect in whole or in part, I give and bequeath the amounts which shall lapse or not take effect to Reverend Addison M. Sherman and Edward W. Atwater, of Batavia, N.Y., or to the survivor in case one of them should die before me. In the use of the same I am satisfied that they would follow what they believe to be my wishes as derived from the will. I impose upon them, however, no conditions, leaving the same to them absolutely and without condition or restriction."
The will was admitted to probate by the surrogate of Genesee county on the 20th day of March, 1905, and thereafter and on the 10th day of May, 1906, this legacy of $10,000 was paid over to the Richmond Hose Company, No. 2.
Soon after its receipt this legacy was invested in bond and mortgage upon real estate and the income thereof devoted to the purposes of the company.
This company was organized at the village of Batavia in the year 1865 as an unincorporated fire company for the purpose of extinguishing fires. On March 31st, 1883, it was incorporated as part of the volunteer fire department of the village of Batavia, Genesee county, New York. It is a membership corporation of forty-four members who have an equal interest in its assets. It is solvent and has no liabilities. *Page 477
The village of Batavia was incorporated into the city of Batavia by chapter 354 of the Laws of 1914, and thereafter a paid city fire department was substituted for volunteer service and the Richmond Hose Company, No. 2, by law, resolution of the common council and by vote of the taxpayers in April of 1916, was disbanded and obliged to give up its fire headquarters.
This case involves the disposition of the $10,000 legacy above referred to which is still intact and in the possession of the hose company.
There are three sets of claimants. The plaintiff claims the fund under clause 34 of the will as a lapsed legacy. The defendant members of the hose company claim it as property of this membership corporation to which they are entitled after dissolution. The city of Batavia claims it under section 12 of the Personal Property Law as the nearest application to the testatrix's intention. The city was not an original party to the action, but was made a party by the Appellate Division which considered the bequest a charity. It reversed the decision of the trial court which gave the fund to the members of the hose company and awarded the money to the city of Batavia.
In my judgment the trial court was right in the disposition of this legacy. It was a gift outright to the Richmond Hose Company, No. 2. It was not a charitable trust, nor a gift upon condition. Neither did the legacy lapse or fail to take effect under the provisions of clause 34 of the will above referred to.
The legacy in question cannot go to the executors or the plaintiff in this case as the legacy has not lapsed. It was paid over directly to the corporation in 1906 and has been held by the corporation as part of its funds ever since. During this time the corporation has disposed of its income for such purposes as it deemed proper. The legacy to lapse must never vest, something must happen between the time of the making of the will and the death of the testator so that it is impossible for the beneficiary to *Page 478 take the legacy at the death of the testator. (Booth v.Baptist Church of Christ, 126 N.Y. 215, 242.) Out of the assets of the testatrix all of the legacies were paid in full, including this one to the hose company.
The gift to the hose company is absolute and complete. It is "I give and bequeath $10,000 to the Richmond Hose Company, No. 2 of Batavia." It is insisted that the words which follow, "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 use of said company, for whatever purposes its members, acting as an organization, may see fit to direct," make this a conditional gift, a condition which may act subsequently to divest it.
Assuming, that the hose company did not keep the fund intact and had used some of the principal, this would not, in my opinion, have shifted the legacy to anybody else. There was no gift over in case the condition, if it be one, was broken. Such a provision as this is not enforceable unless there be a gift over in case of breach. A general gift of the residue is not a gift over. (Matter of Arrowsmith, 162 App. Div. 623; affd., 213 N.Y. 704. )
Then again, such a condition as this could not operate to divest the hose company of its property as the failure to comply with the condition, if it be one, was not voluntary, but involuntary and as such could not operate for such a purpose. (Martin v. Ballou, 13 Barb. 119.) Richmond Hose Company, No. 2, ceased to act as an organization by reason of operation of law and the creation of the city of Batavia. Scovill v. McMahon (62 Conn. 378) held that a condition was not broken where its fulfillment became impossible because of some act of the sovereign power.
Moreover, to give this fund to an individual after the dissolution of the corporation upon the theory of a condition subsequent would, to my mind, violate the law against perpetuities. (Personal Property Law [Cons. *Page 479 Laws, ch. 41], § 11; Gray's Rules against Perpetuities, § 214;Crerar v. Williams, 145 Ill. 625; Matter of Wilcox,194 N.Y. 288.)
In the next place I do not consider that this provision in the will created any trust. It is not unlike the provision in Matterof Griffin (167 N.Y. 71, 84) where CULLEN, J., said, "such a gift, though the corporation may be instructed to maintain the principal intact and use the income only for a specific purpose, does not create a trust."
The cy pres doctrine which was made use of by the Appellate Division only applies to the charitable trusts or bequests mentioned in section 12 of the Personal Property Law. Even if this be considered a bequest for certain purposes it was not a charity within section 12 of the Personal Property Law. (Matterof Shattuck, 193 N.Y. 446.)
The purposes for which this fund were to be used were neither religious, educational, charitable or benevolent. Neither were the beneficiaries indefinite or uncertain. The law requires that the use shall be public and not for the benefit of private institutions or individuals; it must exclude any right to use the moneys for other than charity or the public generally. It cannot have the effect of a private bounty. These voluntary fire departments, we all know, were as much social organizations as public utilities. Entertainments, parades, dances were part of the attraction; fires were but the occasional excitement. Nothing in this will restricted the use of the money to fire purposes. All this income could have been legally spent on refreshments and music. The intent was to benefit the members, not the public. Mrs. Kenny could have given $10,000 to the hose company absolutely. Nothing in the law would have prevented such a gift. At dissolution and payment of debts the property would go to the members. (Gen. Corp. Law [Cons. Laws, ch. 23], §§ 177, 264, and the stipulated facts in this case.) *Page 480
Is this not what Mrs. Kenny actually intended? The hose company named after her father by the village boys was her special consideration. She was not thinking of fires and fire apparatus. The persons of the company, not the house owners of Batavia were to be the recipients of her bounty. "The income * * * to be devoted to the * * * uses of said company for whatever purposes its members * * * may see fit to direct." If the income was to be devoted to receptions and dances, balls or parades would it have been a public and charitable use? Such, no doubt, were the purposes for which some of the money was spent. The will authorized such use. (Old South Society v. Crocker,119 Mass. 1; Neptune Fire Engine Hose Co. v. Bd. of Education,166 Ky. 1; Hopkins v. Crossley, 138 Mich. 561; Mason v.Perry, 22 R.I. 475; City of Bangor v. Rising Virtue Lodge,73 Me. 428; Perry on Trusts [6th ed.], 726.)
My conclusion, therefore, is as follows: The plaintiff cannot take upon any theory of lapsed legacy or gift over upon a condition subsequent; the city of Batavia cannot take as there was no charitable use or trust created and the cy pres doctrine does not apply; the gift to the Richmond Hose Company, No. 2, was an absolute gift and upon dissolution the $10,000 passes like the rest of its property to the members of the corporation.
The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in all the courts.
HISCOCK, Ch. J., HOGAN, CARDOZO and McLAUGHLIN, JJ., concur with ANDREWS, J.; POUND and CRANE, JJ., read dissenting opinions.
Judgment affirmed, etc. *Page 481