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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 157 The testator, William Bostwick, at the time of his death, in April, 1863, was a resident of the State of Connecticut, and had been, for a number of years prior thereto. The validity of the bequests of his personal property, and all questions of succession thereto, or rights therein, must be determined under the laws of that State, and by the courts of that State, when the property, or those having the possession and control thereof, are within its jurisdiction. (Parsons v. Lyman, 20 N.Y., 103;Moultrie v. Hunt, 23 id., 394; Story on Conflict of Laws, § 468.) In addition to his personal property and real estate situated in Connecticut, the testator, at the time of his decease, was seized of real estate situated in the city of New York, of great value. The validity of the devise of the latter property, and all questions relating to the title, must be determined by the laws and courts of New York, irrespective of the domicil of the testator. (Hosford v. Nichols, 1 Paige, 220; Story's Conflict of Laws, §§ 424, 428, 445; 4 Kent's Com., 513.) The testator, after giving several legacies by the previous clauses of his will, by the seventh clause gave all the rest, residue and remainder of his property, both real and personal, wherever situate, to Henry White, John P. Crosby, and Pelatiah Perit, and the survivor of them, as joint tenants, in fee simple, upon certain specified trusts in favor of his daughter Frances, an infant, and her children, should she *Page 160 leave any her surviving, and the descendants of any child, if any, whose parent died during the life of his daughter and her husband, if any, surviving her; and upon the further trust, in case of the death of his daughter, leaving no child or descendant of any child, or husband, her surviving (an event which has actually happened), to pay certain specified legacies to various charitable societies, and then divide whatever remained of the trust estate equally between the following six societies, namely: The Southern Aid Society; the American Tract Society; the American and Foreign Christian Union; the American Colonization Society; the Trustees of the Board of Domestic Missions, of the General Assembly of the Presbyterian Church of the United States; and the Board of Foreign Missions of the same church. The personal estate was more than sufficient to pay all the specific legacies given by the will. The first question to be determined is, whether any or all of these societies, had capacity to take real estate in New York by devise. As several of the societies claim a capacity so to take, upon grounds and principles different from others, it will be necessary to examine the question as to several separately. As the Southern Aid Society differs in this respect materially from all the others, it will be proper to consider the question as to that society first. This was a voluntary, unincorporated charitable association, engaged in aiding indigent evangelical churches and ministers in the southern section of the Union, prior to 1861. Whether it continued in existence as a society after that period, and to the time of the death of the testator, and until its incorporation under the general statute of the State, was a controverted question upon the trial; but the justice who tried the cause found, in substance, that it did so continue. That finding is conclusive upon this court. A voluntary association for charitable purpurposes cannot, under the law of this State, take a legacy given to it. (Sherwood v. Amer. Bible Society andothers, 1 Keyes, 561.) If incapable of taking a legacy, it is clear that it has no capacity to take by devise. The counsel for the society insists, that by the terms of the will, all the real estate *Page 161 of the testator, must be regarded as constructively converted into personal, and if so converted, then it should be disposed of by the law of Connecticut, where the testator had his domicil, under the law of which (as the counsel insists), such associations can take bequests of personal property. The question, whether the real estate, by the provisions of the will, was constructively converted into personal, is important, as its determination affects the rights of some of the other parties, among whom the residue is to be divided by its terms. The will empowers the trustees in their discretion, to sell and convey the real estate in Connecticut, and invest the proceeds in certain specified personal securities, or in real estate situate in certain States named, among which is New York. It contains no express authority to sell the New York real estate. The counsel for the aid society insists, that they had implied authority to sell such real estate, from the tenth clause of the will. The material part of that clause affecting this question is as follows: I hereby authorize and empower the trustees, who may hold any real estate in the State of Connecticut, or any personal estate in the State of Connecticut or elewhere under this will, to sell and dispose of the same, or any part or parts thereof, and to invest the avails at their discretion in certain specified personal securities, or in real estate in New York, or any of the New England States. This is substantially repeated in the same article of the will. It is insisted that the testator, from the length of time the trust would probably continue, must have intended that the trustees should have full power, to effect such changes, as future events might show would be advantageous and desirable, including the power to sell and convey any or all of the real estate. If such was his intention, it is difficult to see why it was not expressed in the will. The instrument itself shows, that it was carefully prepared with adequate professional aid. The testator knew that by far the larger portion of his real estate was located in New York, and by expressly conferring power upon the trustees to sell the comparatively small portion in Connecticut, and remaining silent as to that in New York, *Page 162 he showed that he did not intend that the latter should be sold. Whether he intended, that the trustees should have power, to sell any real estate they might purchase in pursuance of the will, is not a very material question; but so far as it can affect the rights of the aid society, in respect to the real estate purchased by the trustees in New York, will be considered hereafter. But if this construction of the will is erroneous, and it should be held, that the will gave the trustees a discretionary power, of selling the real estate in New York, it would not aid the society in any respect. To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of and obligatory upon the trustees to sell it in any event. Such conversion rests upon the principle, that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result. (Jarman on Wills, vol. 1, 523, 4 and 5; Wright v.Trustees, 1 Hoff., ch. 202, and authorities cited at 219; 2 Kent's Com., 11th ed., 230, note c.; 2 Story's Equity, sec. 1219;Stagg v. Jackson, 1 Coms., 206.) There can be no pretence of any conversion of the New York real estate, under the rule in the present case. The real estate, situated in New York, purchased by the trustees, and in part paid for from the personal property, must be regarded as real estate. The trustees were expressly empowered by the will, to convert the personal into real estate in New York, so far as they deemed expedient; and so far as they have done so, the property must be treated as real estate. (1 Jarman on Wills, 538, 539.) It follows that the Southern Aid Society can take no interest in any of the New York real estate. The testator, by the thirteenth clause of his will, gave to the person, who should at the time the property was to be conveyed, act as treasurer of any society, which he had made an object of his bounty, in case such society was unincorporated, the portion that he by previous clauses had given to such society, to be appropriated to the charitable uses and purposes of such society, and under its direction. This devise is invalid, so far as the person acting as treasurer of the aid *Page 163 society is concerned. The person who is to take the property as trustee is sufficiently ascertained, but the beneficiaries are not ascertained or ascertainable with sufficient certainty to sustain, or in any way enforce the trust. They are indigent evangelical churches and ministers in the southern section of the Union. (Bascom v. Albertson, 34 N.Y., 584.) The incorporation of the society in 1866 does not affect the question. The property had become vested in others prior to that time, and their rights could not be affected thereby. The American Colonization Society claims the one-sixth of the property under the will. This society was incorporated in 1836, by an act of the legislature of Maryland, by which it was authorized, to take lands by devise, and to sell and dispose of such lands as the society should determine, to be most conducive to the objects of the society, namely, the colonizing of the free people of color of this country in Africa. The principal question to be determined, in regard to this society is, whether it can take land in this State by devise. We have already seen that this question must be determined solely by the law of this State. That it can take personal property by bequest, has been determined by this court. (Sherwood v. The American Bible Society and others, 1 Keyes, 561.) By the statute of this State concerning wills, passed in 1813 (1 R.L., 364), all persons (other than bodies politic and corporate) were permitted to take lands by devise, and might take to or for any lawful purpose whatsoever, without restraint. The exclusion of bodies politic and corporate from taking lands by devise, was the law of the State until the Revised Statutes took effect, and applied to all corporations of our own and other States and countries, unless the legislature, for special reasons, authorized a particular corporation so to take. This was the settled policy of the State. Such being the law and policy of the State at the time of the passage of the Revised Statutes, we find, that by the first section of the statute of wills therein contained (2 R.S., 57), all persons, with the exceptions therein specified, were empowered to dispose of their real estate by will. Section 2 of the act *Page 164 defines real estate for this purpose. Section 3 provides, that such devise may be made to every person capable by law of holding real estate; but no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise. What modification of the law is here indicated? By the act of 1813, bodies politic and corporate are excepted from the persons who may take by devise. By section 3 of the present statute of wills, all persons capable by law, to hold real estate, are authorized so to take, but providing that no devise to a corporation shall be valid, unless such corporation, by its charter or by statute, be expressly authorized so to take. Had the legislature, while the act of 1813 was in force, granted a charter to a corporation, and had therein enacted, that such corporation might take real estate by devise, can there be a doubt, that such a provision would have effected a repeal of the act as to such corporation? Or had the legislature, by a subsequent statute, enacted that one or any number of designated existing corporations, might take land by devise, such act would, as to such corporations, have repealed the exception in the act of 1813 by implication. Section 3 of the present statute, has the same effect precisely, upon all corporations not expressly authorized by charter or statute to take by devise, as the exception in the act of 1813 had upon all existing corporations, and all thereafter created, unless the latter were expressly authorized by their charter to take; and we have seen that, as to both classes, a subsequent statute, expressly authorizing any designated corporations to take land under a will, would by implication, have repealed the section as to them. The only modification of the law intended by the change in section 3, was to save the right of existing corporations, authorized by their charter or statute, to take by devise, if any such there were; for those incorporated subsequent to its passage, were as effectually deprived thereby, of the capacity to take by devise, as those incorporated subsequent to the act of 1813 were by the exception. Neither could take, unless expressly authorized by statute or charter, in which event both could take, unless some *Page 165 distinction exists, between a statute and charter of a corporation in this respect, as used in the section. That the authority conferred by statute referred to in section 3, means a statute of this State only, is clear. That a statute of another State, conferring power upon a New York corporation to take land by devise, would be effectual to enable it so to take in the State passing it, is clear; but it is equally plain, that it could not affect its capacity to take land located in New York by devise. This shows that the word statute, as used in section 3, means a statute of New York. It will hardly be insisted that a statute of another State, conferring power upon a corporation created by itself, to take land by devise in New York, will enable it so to take, while a similar statute conferring the same power upon a New York corporation will have no such effect. But it is claimed, that by the true construction of section 3, power is given to all corporations, whose charters authorize them to take, by devise, to take in that manner in this State, irrespective of the government from which the charter is obtained. In other words, that section 3 authorizes all corporations to take lands in this State under a will, whose charters confer a capacity so to take. Creating or chartering corporations involves an exercise of the legislative power. They may be created by a particular statute, granting the charter or organized by virtue of general statutes prescribing the mode, specifying the powers and privileges to be enjoyed. In either mode the corporation is, in a legal sense, created by statute; and where section 3 provides, that no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise, it is equally clear that such charters only were intended, as were granted by a statute of this State, or organized under a general statute of the State, as it is that by the words by statute, a statute of the State was intended. Any other construction would work a complete revolution of the policy of the State. That policy, as indicated by its whole legislation, is to exclude corporations generally from taking by devise. The legislature at all times have possessed the power, to except *Page 166 such corporations as it deemed proper from its operations; and of late years have exercised it with great liberality, in favor of corporations organized for charitable purposes. But there is no indication of a design, to abandon the general policy of the State, by permitting other governments to determine, what corporations might take and hold lands in this State by devise, under the construction contended for by the counsel for the colonization society. Any corporation, to which the privilege of taking land by devise was refused by our legislature, might acquire that privilege by procuring and accepting a charter from another State conferring it. This would defeat the plain intention of section 3, which was to exclude all corporations from that right, except such as our legislature permitted for special reasons to enjoy it. It follows that the colonization society, can take no interest in the New York real estate under the will of the testator. The question, whether the real estate was by the provisions of the will converted into personal, has been already disposed of. The counsel insists, that as to the colonization society, such portion of the real estate in New York, purchased by the trustees, as was paid for by them from the personal estate, should be regarded and disposed of as personal, and this society declared, entitled to a share therein under the will. His position is, that the right to that portion of the personal property given to the society by the will, vested upon the death of the testator, and although contingent at that time, by the events that have since happened, the right has become absolute, and that it could not be impaired, while contingent, by a change in the character of the property made by the trustees. But this entirely overlooks one of the contingencies upon which the property, as personal property, was given to the society, namely, that the trust property should not, before the occurrence of the event, upon the happening of which the society was to take, be invested by the trustees in real estate, pursuant to the power given them by the will. The authorities (Williams on Exrs., 1176, and others cited) relate to cases, where executor's guardians of minors committees *Page 167 of lunatics, etc., have invested the personal property in real estate. In these cases it has been rightly held, that by such unauthorized investments, no change in the nature of the property was effected, so far as the right of succession was concerned. They have no application to the present case, where the investment was made under the power conferred by the will. In such cases we have seen, that after the investment is in fact made, the nature of the property is changed, and that the heir, instead of the personal representatives, are entitled to it. International comity has nothing to do with titles to real estate. They are regulated exclusively by the government where the real estate is situated. These views dispose also of the claims of the defendant, the trustees of the board of Domestic Missions of the General Assembly of the Presbyterian Church of the United States. That is a corporation formed under the laws of Pennsylvania, having power by its charter to take real estate by devise; but there is no law of this State authorizing it so to take. The defendant, the American Tract Society, is a corporation under chapter 266, p. 249, of the Laws of 1841. That act gives the corporation no power to take by devise, and consequently, the devise of real estate to it is invalid, by the express provisions of section 3 of the statute of wills. The amendment of its charter by the act of March 31st, 1866, authorizing the corporation to take by devise, cannot affect its rights in the present case, as the testator and his daughter died prior to that time; and all the real estate not effectually disposed of by the will, vested in some of the persons claiming as heirs prior thereto. The position that the State, by subsequent legislation, could give validity to this void devise, is entirely fallacious. The property vested in heirs can no more be taken from them, and bestowed upon others, by legislation, than that of any other class; and the act in question makes no such attempt. It will be proper next to determine, whether the heirs of the testator, or those of his daughter Frances, are entitled to that part of the real estate, not disposed of by the will; as, in case it shall be held that the latter are entitled, it *Page 168 will be unnecessary to examine the questions raised, as to the rights of the two corporations, held by the Supreme Court, entitled each to one-sixth of the real estate in the lands purchased, as the heirs of the daughter have not appealed from the judgment. I understand the position of the counsel of the heirs of the testator to be this: That, under the will, the estate vested in the trustees during the life of the daughter, in trust for her, and upon her death, upon the further trust to convey to her husband and children, etc., as provided by the will, and that during her entire life, it was contingent whether she would leave her surviving, any person or persons entitled to the estate under this part of the will, and that until that time, it was uncertain, whether the entire estate was disposed of by the will or not, and that therefore, no legal estate did or could vest in the daughter. It is an elementary principle, that seizin in the ancestor is essential to a transmission of the estate from him to his heir. If it be true that there was no seizin of the estate by the daughter, no title can be derived from her as her heir. It is equally clear, that if she was seized, the title vested in her heirs upon her death. We have already seen, that in the events that have actually happened, four-sixths of the real estate were not disposed of by the will. Whether during the period of the contingency of the events upon which this result depended, this portion of the estate vested in the trustees or was in abeyance, must be determined by the provisions of the statute (1 R.S., 729, 730), or if it cannot be so determined by the common law, section 60 of the statute provides, that every express trust, valid as such in its creation, except as therein otherwise provided, shall vest the whole estate in the trustees, in law and equity, subject only to the execution of the trust; that the persons for whose benefit the trust is created, shall take no estate or interest in the land, but may enforce the performance of the trust in equity. Section 61 provides, that the preceding section shall not prevent any person creating a trust, from declaring to whom the lands to which the trust relates shall belong, in the event of the failure or termination of the trust; nor shall it prevent *Page 169 him from granting or devising such lands, subject to the execution of the trust. Every such grantee or devisee shall have a legal estate in the lands, as against all persons, except the trustees and those lawfully claiming under them. Section 62 provides, that when an express trust is created, every estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in or revert to the person creating the trust, or his heirs, as a legal estate. A remainder in four-sixths of the real estate, contingent upon the death of the daughter, leaving no descendant her surviving, was not embraced in the trust, as the devisees were incapable of taking, and this remainder was not disposed of by the will. By the provisions of section 62, this remainder, upon the death of the testator, vested in his heirs. His daughter was his sole heir. She therefore became seized of this remainder as heir of her father, and being seized, upon her death, it goes to her heirs. Those who would have been heirs of the testator, had he survived his daughter, are entitled to no interest in the land. The heirs of the daughter have not appealed from the judgment. They are the only parties prejudiced by that provision of the judgment, declaring that the real estate purchased by the trustees in New York must, so far as the purchase-money was paid from the personal estate, be regarded and disposed of as personal property, so far as their rights as heirs are concerned. This provision of the judgment cannot be corrected by this court. Why it should have been so held, in respect to the rights of the heirs and some of the other parties, and not as to all, I am unable to determine; but as the only parties prejudiced by holding, that it should as to some of the parties, be disposed of as personal property, did not except to the ruling, and have not appealed, the judgment in this respect must be affirmed; and the Board of Foreign Missions of the Presbyterian Church in the United States, and the American and Foreign Christian Union, are entitled to all that has been awarded to them by the judgment. The two defendants last named have not appealed from the judgment, and cannot therefore, ask for any modification thereof favorable to them. *Page 170 I have deemed it unnecessary to notice the suggestions of counsel, as to the remoteness of the relationship of the persons claiming as heirs, or the anxiety of the testator, apparent from the will, that this property, in the events that have happened, should be bestowed upon the charitable objects specified in the will, as such considerations are entitled to no weight upon the questions to be determined. So far as competent persons make disposition of their property by will, pursuant to the rules of law, the disposition is valid and will be upheld. So far as they fail to make such disposition, the heirs and next of kin are, by law, entitled to the property; and any intention of the deceased, however ascertained, can have no effect upon their legal rights. The judgment appealed from must be affirmed, with costs to the respondents, to be paid by the plaintiffs out of the estate. From the allowances made by the court below, I think the appellants have been sufficiently compensated for the unsuccessful contest made, and should not be awarded costs, in effect to be paid by those entitled to the property.
All concur.
Judgment accordingly.