Fellows v. Miner , 119 Mass. 541 ( 1876 )

Gray, C. J.

This charitable bequest would apparently be held ineffectual and void by the courts of New York, if the testator had been domiciled and his estate had been settled there; not, however, because the purpose was unlawful, but because, by the later decisions of the Court of Appeals, the statutes of that state are held to have repealed the old law of charitable uses, and to have prohibited any corporation to take a charitable bequest of this description without express authority of the Legislature. Sherwood v. American Bible Society, 4 Abbott, (N. Y.) 227; S. C. 1 Keyes, 561. Bascom v. Albertson, 34 N. Y. 584. Adams v. Perry, 43 N. Y. 487. Holmes v. Mead, 52 N. Y. 332.

But the testator’s domicil being in this Commonwealth, the question of the validity of his dispositions of his personal property, though to be executed elsewhere, is to be determined by the law of Massachusetts. Fay v. Haven, 3 Met. 109. Phelps v. Pond, 23 N. Y. 69. Bascom v. Albertson, 34 N. Y. 584. Chamberlain v. Chamberlain, 43 N. Y. 424. By our law, this bequest is valid, whether the beneficiaries are in this or in any other state or country. Bartlet v. King, 12 Mass. 536. Washburn v. Sewall, 9 Met. 280. Webb v. Neal, 5 Allen, 575. Odell v. Odell, 10 Allen, 1. Saltonstall v. Sanders, 11 Allen, 446. And the fact that a charitable bequest, otherwise valid, cannot take effect immediately, for want of proper objects or trustees, or of enabling acts of the Legislature or of the Executive, will not defeat it. Sanderson v. White, 18 Pick. 828, 336. Odell v. Odell, 10 Allen, 1, 8. Baker v. Clarke Institution, 110 Mass. 88, 91.

The court will not allow a valid charitable trust to fail for want of a trustee; and if the trust is to be executed out of the Commonwealth, the court may appoint a trustee here to receive the bequest, or may order the fund, or the income thereof from time to time, to be paid to a trustee in the place where the trust is to be executed — as may be consistent with its own jurisdiction and practice, and best carry out the intention of the testator. Washburn v. Sewall, 9 Met. 280. Attorney General v. London, 3 Bro. Ch. 171; S. C. 1 Ves. Jr. 243. Mayor of Lyons v. East India Co. 1 Moore P. C. 175, 295-297, and cases cited. Attorney General v. Sturge, 19 Beav. 597. Chamberlain v. Chamberlain, 43 N. Y. 424.

This bequest is “ to the town of Kinderhook, New York, in its corporate capacity,” in trust for the charitable uses and purposes declared in the will. The St. of New York of 1875, e. 200, § 1, expressly authorizes that town in its corporate capacity to receive and hold in trust all the property bequeathed to it by this will, for the uses and purposes therein mentioned. The bequest being valid by the law of this state, the town named in the will as trustee being now enabled, by a special act of the Legislature of the state in which it is situated, to take the bequest, and the trust being directed by the will to be executed in that state and for the benefit of the inhabitants of that town, the court might properly direct the fund to be paid over to the town, if it were clear that the trust could thereupon be lawfully administered according to the will of the testator.

But here a new difficulty arises. The testator directs that the interest and income of the fund shall be collected and distributed by persons appointed by the town annually for that purpose. The statute of New York, already referred to, § 2, authorizes such persons to be appointed by the supervisor and justices of the peace of the town. The collection and distribution of the income by persons appointed by certain municipal officers would not be according to the will of the testator, which directs those persons to be appointed by the town itself. . It does not therefore as yet appear that, if the fund should be ordered to be paid to the town of Kinderhook, it could be administered according to the will of the testator. The court is not at liberty to alter the scheme of the testator, either as to the objects of the charity or the agents by whom it is to be administered, unless it appears to be impossible to carry out his scheme according to its terms. Baker v. Smith, 13 Met. 34, 41. Trustees of Smith Charities v. Northampton, 10 Allen, 498, 501, 502. Harvard College v. Society for Theological Education, 3 Gray, 280. Jackson v. Phillips, 14 Allen, 539, 591, 592.

The result is, that the bequest must be adjudged valid, and the cause must stand for further directions. If the Legislature of New York shall see fit to provide by supplemental statute for the administration of the trust according to the will, the fund may then be ordered to be paid to the town of Kinderhook. If there shall be no such legislation within a reasonable time, it will become necessary to consider whether the court should appoint an other trustee, or whether the bequest must fail.

Decree accordingly.

The Legislature of New York, by the St. of 1876, c, 241, passed May 13,1876, provided for the election by the town of Kinderhook of persons .to administer the trust according to the will; and by the final decree in the cause, at September term 1876, the fund, after payment of the defendants’ costs, taxed as between solicitor and client, was ordered to be paid to the town.