Kerr v. . Dougherty

Differing as to the construction of this will, in some particulars, from the court below, I will confine my examination now to those particulars, leaving the construction of other portions of the will, so far as they are brought to our attention by any appeal, to rest upon the decision of that court.

1. By the fifth clause of the will the testator bequeaths "to the directors of the Union Theological Seminary of the city of New York the sum of $10,000, to be invested as a permanent fund in stocks or bonds of the United States or of the State of New York, the interest of which shall be given as support to such student or students of the said *Page 350 seminary, studying with a view to the christian ministry, as shall be selected for the gift by the directors." This clause has been held invalid, because the will was not executed at least two months before the death of the testator; and this conclusion was reached by holding that the two months' limitation contained in section 6 of chapter 319 of the Laws of 1848, the testator having left a widow, was applicable to this corporation.

The corporation was organized by special charter by chapter 99 of the Laws of 1839, "an act to incorporate the Union Theological Seminary." By that act the corporation was made "capable in law of taking and holding by gift, grant and devise, or otherwise, and of purchasing and holding and conveying, both in law and equity, any estate, real or personal; provided that the clear annual value or income of their real estate shall not exceed the sum of $15,000, and their personal estate shall not exceed the sum of $50,000, exclusive of such professorships as may be from time to time endowed."

In 1848 the act above referred to, entitled "an act for the incorporation of benevolent and charitable, scientific and missionary societies," was passed. It is a general act, providing for the mode of incorporating societies for "benevolent, charitable, literary, scientific, missionary or mission or other Sabbath school purposes." Section six of the act provides as follows: "Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of $10,000; provided no person leaving a wife or child or parent shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been made and executed at *Page 351 least two months before the death of the testator." It will be observed that the limitations contained in that section are applicable only to corporations formed under that act.

In 1860 (chap. 360 of the laws of that year) an act entitled "an act relating to wills" was passed. It contains two sections, and is as follows: "Section one. No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, (and such devise or bequest shall be valid to the extent of one-half, and no more). Section two. All laws and parts of law inconsistent with this act are hereby repealed."

The purpose for which the Union Theological Seminary was organized is not particularly or clearly disclosed in the act of incorporation. But it may be inferred, from the title of the act and a few hints contained in the act, that the purpose was the maintenance of a seminary for the instruction of students in christian theology. It was therefore both a literary and religious society, within the meaning of the act of 1860. The limitations contained in that act reached all corporations of the character described, whether formed under the general law of 1848 or under special charters, and whether formed before or after the date of that act. It did not undertake to deal directly with corporations and place any limitations upon their powers. It simply placed restraints upon the power of every person having a husband, wife, child or parent, to devise or bequeath property to any of the corporations mentioned.

Prior to the passage of that act, the only limitations upon the power of this corporation to take by bequest were those contained in its charter, and they related solely to the amount of property it could take and hold. Provided the limited amount was not exceeded, any competent testator could bequeath all his property to it at any time before his death; *Page 352 and the same was true after the act, except that no person resident in this State and subject to its laws, who was related as mentioned in the act, could bequeath to it more than one-half of his estate.

Thus the law remained as to this corporation until 1865, when its charter was again before the Legislature, and was amended by chapter 636 of the laws of that year as follows: "It shall be lawful for the Union Theological Seminary in the city of New York, subject to existing laws, to take and hold by gift, grant or devise, or otherwise, and to purchase, hold and convey any estate, real or personal; provided that the clear annual value or income of their real estate shall not exceed the sum of $15,000, and their personal estate shall not exceed the sum of $100,000, exclusive," etc. Although the two months limitation contained in section 6 of the act of 1848 had been in force for many years, the Legislature did not subject this corporation to such limitation by this amendment of its charter.

In 1870, by chapter 129 of the laws of that year, the charter of this corporation was again amended, as follows: "It shall be lawful for the Union Theological Seminary, in the city of New York, to take and hold by gift, grant or devise, or otherwise, subject to all the provisions of law relating to devises and bequests by last will and testament, and to purchase, hold and convey any estate, real or personal, for the purposes of their said incorporation; provided that their personal estate shall not exceed the sum of $200,000, exclusive," etc.

The claim is that by the language used in this last act, to wit, "subject to all the provisions of law relating to devises and bequests," this corporation became subject to the two months limitation contained in section 6 referred to. Did the Legislature, after that section had been in force for twenty-two years, and after the charter of this corporation had once in the meantime been amended, intend, by such uncertain, general language, to subject this corporation, for the first time, to the limitation then provided exclusively for *Page 353 corporations formed under that act? I think not. If such had been the intention, it is highly probable that different language would have been used to express it. The language used by a fair and natural interpretation, does not refer to the act of 1848. That was an act for the formation of certain kinds of corporations. It was not an act relating, in any proper sense, "to devises and bequests by last will and testament." It contains no general provisions. It relates only to the corporations formed under it. By the language, "the provisions of law relating to devises and bequests," was not meant such provisions found in an act confined exclusively to corporations formed under it, or such provisions on the subject of devises and bequests as could be found in many of the special charters created by the Legislature; but the language has reference to the general provisions to be found in the statutes regulating devises and bequests. Such provisions are found in the act of 1860, which was enacted solely for the regulation of devises and bequests to corporations like this. And the construction given by the court below to this language gets no support by reference to the general policy of the law and the general course of legislation. It is true that in 1848 it was the policy of the Legislature to require certain wills, which were to confer benefits upon benevolent and other corporations formed under the general act, to be executed at least two months before the death of the testator. But that limitation was not made applicable to the numerous similar corporations then existing under special charters; and although between 1848 and 1870 nearly one hundred and fifty acts were passed incorporating or extending and enlarging the corporate powers of as many corporations similar to those named in the act of 1848, the two months limitation was imposed upon but few of such corporations. Some of such corporations were made in terms subject to the act of 1848; some in terms subject to the act of 1860; some were restricted by the insertion in their charters of the two months clause; some were made subject to the general laws of the State; *Page 354 and some were made subject "to all provisions of law relating to devises and bequests by last will and testament." But the majority were incorporated with no restriction whatever as to their power to take and hold property, except as to the amount. In 1870 there were, besides the act amending the charter of this corporation, seventeen of such acts. In nine the corporations were made subject "to all provisions of law relating to devises and bequests by last will and testament;" in one the corporation was made subject to the general laws of the State; and in seven there were no restrictions whatever, except as to the amount of property they could take and hold.

It may be said that the language of the act of 1870, which we are endeavoring to construe, can have no force or effect unless it be referred to the act of 1848, as the act of 1860, and other general provisions of law as to devises and bequests, would apply to this corporation, without the use of this or other language in its charter, or any amendment thereof. This is true, but I think it has no significance. Acts are not always drafted by men learned in the law, and language is frequently used, ignorantly or from abundant caution, which is wholly unnecessary. In the law of 1865, above set out, it will be seen that the words "subject to existing laws" are used in the same way, without any meaning, as the corporation would have been subject to such laws without the use of that language. So in many of the special acts the corporations are in the same useless manner made subject to the general laws of the State, or to certain provisions of the Revised Statutes, which would apply if not referred to or mentioned. In the language now under consideration, the words "last will and testament" add nothing to the meaning, as there could be no devise or bequest without a will. It is probable, therefore, that the draughtsman of the act of 1870 did not at the time know or realize that the act of 1860 would apply to this corporation, without the reference he made in this language, and that he used the language for the purpose of applying that, and any *Page 355 other general provisions as to devises and bequests, to this corporation. Hence the language was not used without a purpose, although used unnecessarily.

I think, therefore, that it is reasonably clear that the two months' limitation contained in section six of the act of 1848 does not apply in the case of a bequest to this corporation. If the construction were doubtful, the doubt should be so solved as to uphold this bequest. The general right which this testator had, at any time before his death, to dispose of his property by will in any manner he wished, should not be taken away by language of doubtful and uncertain import and bearing. This bequest should be upheld, if it can be, without the violation of law, and effect thus given to the will of the testator, and that it can be, I think I have sufficiently shown.

2. The ninth clause of the will was also held to be invalid by the court below, for the same reason, and it is as follows: "I give and bequeath unto the New York City Mission and Tract Society the sum of $1,000." This society was created by the act chapter 63 of the Laws of 1866. By the first section of the act, certain persons named were constituted a body corporate, and it was provided that the corporation "shall have the powers which, by the third title of the eighteenth chapter of the first part of the Revised Statutes, are declared to belong to corporations, and shall be capable of taking, by purchase or devise, holding and conveying any estate, real or personal, for the uses and purposes of said corporation, subject to any provisions of law in relation to devises and bequests by wills," the real estate not to exceed the yearly value of $50,000.

The language, "subject to any provisions of law," etc., is claimed to subject this corporation to the two months' limitation contained in section six of the act of 1848. This language is the same as that contained in the act of 1870, which has just been considered, except that there the word "all" was used instead of "any." This slight difference in the language can make no difference in the construction. *Page 356 The word "any," as used, has no broader signification than the word "all" If the words "any provisions," etc., are to be construed so literally, and held to be so far reaching as to refer to the limitations contained in the section six, which were made applicable solely to corporations formed under the act of 1848, then they must also be held to refer to any provisions of law as to devises and bequests found in any of the numerous special charters granted to corporations since the foundation of our State government, because such provisions would literally be included in the words "any provisions." It will be seen, by an examination of the statutes, that whenever the Legislature, since 1848, has undertaken to subject corporations created by it to the two months' limitation, it has done so by express terms, or by express reference in plain language to the act of 1848.

If it be said that this language has no effect unless it refers to the act of 1848, it may be said, with equal truth, that the language used in this act as to the Revised Statutes has no effect: (Bowen v. Lease, 5 Hill, 221.) All this language is superfluous, and yet was doubtless used for a purpose. Therefore, without more, for all the reasons above stated, this bequest, should also be held valid.

3. The tenth clause of the will is as follows: "I give and bequeath unto the Trustees of the General Assembly of the Presbyterian Church of the United States of America, for the use of the fund of disabled ministers, the sum of $5,000." There is a corporation organized under an act of the Legislature of Pennsylvania, passed in 1799, called "The Trustees of the General Assembly of the Presbyterian Church in the United States of America," as named in the act. The corporation is authorized to take property by devise and bequest, and I have no doubt that the purpose for which this bequest was made is one for which it is authorized to take and hold property under its charter. There is also in the same state another corporation, named "The Presbyterian Board of Relief for Disabled Ministers and the Widows and Orphans of Deceased Ministers," organized in 1876, less than two *Page 357 months before the date of this will, under a general law of that State. And the purpose of that corporation is "to receive, hold and disburse such real and personal estate as may be given to it for the relief and support of disabled ministers and the needy widows and orphans of deceased ministers of the said church." There is nothing in the charters of these corporations which prevents either of them from taking, holding and administering this legacy. The court at Special Term held that this legacy was intended to be given to one or the other of these corporations, but held that it was immaterial to determine which, because, in any event the bequest was invalid. I think that the court should have determined that the legacy was intended for the corporation first named, as the name of that corresponds accurately with the name contained in the will, and there is no evidence that any other corporation was intended. It is necessary only, therefore, to determine whether that corporation can take this legacy. I think it can.

There is no claim that the two months' limitation contained in the act of 1848 applies to this Pennsylvania corporation; but the claim is that the limitation of one month contained in section eleven of an act of the Pennsylvania Legislature, entitled "An act relating to Corporations and to Estates held for Corporate, Religious and Charitable Uses," passed in 1855, applies; and so it was held by the court below. That section is as follows: "No estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and at the time disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee, next of kin or heirs, according to law." That is a general law controlling all wills and deeds of property to corporations in that State. It does not interfere with or regulate the capacity or corporations to take, and such was not its design. It has *Page 358 no extra territorial force. It was intended solely to regulate the conduct of persons within that State. It prescribes the mode by which property may be given to corporations or in trust for religious or charitable uses in that State. Property may thus be given by will or deed; the instrument must be attested by two witnesses; the witnesses must be disinterested; and the instrument must be executed at least one month before the decease of the maker thereof. None of these provisions have any relation whatever to an instrument executed here by a person domiciled within this State. This will was executed here by a competent testator, in the mode prescribed by the laws of this State, and hence it is a valid will. It gives a bequest to this corporation which is authorized to take it, and hence the bequest is valid. The case of Chamberlain v. Chamberlain (43 N.Y., 424), is abundant authority for this conclusion. In that case, it was decided that the law of the testator's domicile controls as to the formal requisites essential to the validity of a will, the capacity of the testator, and the construction of the instrument; that when by the lex domicilii a will has all the formal requisites to pass title to personalty, the validity of particular bequests will depend upon the law of the domicile of the legatee, except in cases where the law of the domicile of the testator in terms forbids bequests for any particular purpose, or in any particular manner, in which latter case the bequest would be void everywhere; that the existence of corporations under the laws of sister States is recognized by the courts of this State, and they may take personal property under wills executed by citizens of this State, if by the laws of their creation they have authority to acquire property by bequest. According to these principles, the inquiry in all such cases must be first, is the bequest valid under the laws of this State, upon the assumption that the legatee can legally take the legacy; and second, is the legatee authorized to take it under the laws of the State where it is located? If these two questions can be answered in the affirmative, the bequest must be upheld. *Page 359

This bequest must therefore be held valid.

The court below held that all the sums mentioned in bequests in this will, which were held to be invalid passed as property undisposed of to the widow and next of kin of the testator; and in this, I think, there was error.

After providing for all the legacies which he desired to give to other parties, the testator made the following provision for his wife in the fifteenth clause: "I give and bequeath unto my beloved wife, Amelia Kerr, all the net income that may be derived from my estate after my decease, and after the legacies are paid off she is to receive the same during her life-time." He had before provided that his debts should be paid. He then gave the legacies, and here provides in effect that what is left of his estate after the payment of his debts, legacies and the expenses of administration, shall constitute a fund the net income of which his wife shall receive during her life. And then in the last clause of the will he provides as follows: "I give and bequeath all the principal left of my estate, after the death of my wife, Amelia Kerr, to the societies, seminary, or institutions named in the fifth, sixth, seventh, ninth and tenth articles, or bequests to be divided according to the several amounts so bequeathed pro rata." This is a disposition of the precise sum of which his wife during her life is to have the income. These two clauses make a full and plain disposition of the residue of the estate, after payment of debts, expenses and legacies, the income thereof to go to the wife during life, and after her death the corpus or principal to go to the residuary legatees named in the last clause. A residuary bequest is one which, if valid, carries all the personal property not otherwise disposed of; and these bequests are of that character.

Hence this is a case where the whole of the residuary estate is fully and perfectly disposed of. In such a case it is well settled that a residuary disposition as to personal estate carries not only everything not attempted to be disposed of, but everything which turns out not to have been effectually disposed of, as void and lapsed legacies. As said by a learned *Page 360 judge, "everything which is ill-given falls into the residue:" (Reynolds v. Kortright, 18 Beav., 417.) A presumption arises in favor of the residuary legatee against every other person except the particular legatee; and the testator is supposed to give a legacy away from the residuary legatee only for the sake of the particular legatee. Courts are always inclined against adopting any construction of wills which would result in partial intestacy, unless absolutely forced upon them. And in order to prevent a void legacy from falling into the residue, there must be some plain indication in the language of the will that the testator so intended. As said by the vice chancellor in King v.Woodhull (3 Edw. Ch., 79): "To exclude what may fall, by lapse or invalid disposition, from the gift of the residue, as it may be supposed that the testator did not intend to die intestate as to any portion of his property, when he set about making a will, and is supposed to exclude the residuary legatee only for the sake of the particular legatee, the law requires that he should use very special words, clearly limiting the gift of the residue, and showing in express terms an intention to exclude such portions of his estate as may fail to pass under previous clauses of the will, in order to take it out of the general rule above state." (See also 2 Redf. on Wills, 442; Wigram on Wills [O'Hara's ed.], 73; Attorney General v. Johnstone, Amb., 577;Ring v. Strong, 9 Paige, 94; Banks v. Phelan, 4 Barb., 80.) Here there is no language which within any authority will exclude the void legacies from the residue and cause an intestacy as to them, and they should therefore be held to fall into the residue.

It therefore follows that the whole of the residue, after the payment of the debts and valid legacies and the expenses of administration, should constitute a fund, the net income of which must be paid to the widow during her life. After her death, the shares of the residuary legatees not competent to take should pass as not disposed of by the will, and the balance of the residuary estate be divided among the other residuary legatees, as directed by the final clause of the will, *Page 361 subject to the law of 1860 as to the amount which can go to these corporations.

The judgment should therefore be modified in conformity with these views.

All concur with MILLER, J., except RAPALLO and EARL, JJ., dissenting; ANDREWS, J., absent.

Judgment affirmed.