First Presbyterian Church v. McKallor , 54 N.Y.S. 740 ( 1898 )

MERWIN, J.

The plaintiff was incorporated under the provisions of chapter 60 of the Laws of 1813 (3 Rev. St. [8th Ed.] pp. 1881, 1903, 1909). .Under that act, or the acts supplementary thereto (chapter 79, Laws 1878; chapter 176, Laws 1876), the plaintiff had the right to hold real and personal estate “for the use of such church, congregation or society, or other pious uses.” By the act of 1875, it was authorized generally, within certain limits ■as to amount, to take and receive by bequest or devise any real or personal estate. By section 4 of that act, the trustees of the society are authorized to hold and apply its property and revenues “for the benefit of such corporation, according to the discipline, rules, and usages of the denomination to which the church members of the corporation belong; and it shall not be lawful for the trustees to divert such estate, property, or revenues to any other purpose except towards the support and maintenance of any religious, benevolent, or other institution connected with such church, congregation, or religious society.” By section 1 of the act of 1876, it is provided that the trustees shall hold and apply the property of the society and its revenues “for the benefit of such corporation according to the rules and usages of the church or denomination to which said corporation shall belong; and -it shall not be lawful to divert such estate, property, or revenue to any purpose, except the support and maintenance of any church or religious or benevolent institution or object connected with the ■church or denomination to which such corporation shall belong.”

The bequests in this case were, in legal effect, to the corporation, although in terms to the trustees of the church. Chamberlain v. Chamberlain, 43 N. Y. 424, 437; In re Wesley (Sup.) 17 N. Y. Supp. 304, affirmed 136 N. Y. 638, 32 N. E. 1014. The fact that the bequests are in form given in trust for some particular purpose does not make them invalid as long as the purpose expressed is one within the corporate powers of the church. Williams v. Williams, 8 N. Y. 525, 530; Wetmore v. Parker, 52 N. Y. 450; In re Wesley, supra. The repairs and improvements “of the parsonage property of said church” are clearly within the powers of the corporation. Nor is there much doubt, upon the evidence in this case, that the maintenance of a church sociable, and aiding the Ladies’ Foreign and Home Missionary Societies connected with said church, are within the scope of the powers of the corporation. Be that as it may, the wish of the testatrix upon these subjects, as well as the wish in the last part of the tenth clause, should be treated as merely precatory. Bird v. Merklee, 144 N. Y. 544, 550, 39 N. E. 645. She had previously indicated her intention that the church should have the property absolutely, for its uses and purposes. In such cases, precatory words will not ordinarily be deemed to operate as a command. 2 Story, Eq. Jur. § 1070. “When the words of a gift expressly point to an absolute enjoyment by the donee himself, the natural construction of subsequent precatory words is that they express the testator’s belief or wish, without imposing a trust.”' 1 Jarm. Wills (5th Am. Ed.) 388.

It is claimed by the appellants that the provision in the tenth clause for keeping in good order and repair the cemetery lot of the grandfather of the testatrix is invalid, as being in violation of the statute against perpetuities. The argument is. that the plaintiff had no power to take the fund for that purpose. If it had the power, the statute against perpetuities would not apply. Adams v. Perry, 43 N. Y. 487, 500; Cottman v. Grace, 112 N. Y. 299, 307, 19 N. E. 839. It is not necessary, I think, for us to determine whether the plaintiff, under its power to hold property for “other pious uses,” can take a bequest for the care of a particular private burial lot (see 5 Am. & Eng. Enc. Law [2d Ed.] 933); for chapter 198 of the Laws of 1884 conferred power of that character sufficient, I think, for the purpose named. By that act, any incorporated church or congregation in the state has power to taue any grant or bequest of property upon trust, to apply the same or the income thereof, under the direction of the trustees, for the improvement or embellishment of any burial ground or cemetery connected with any such church or congregation, or lot therein, or for the repair of any monument, railing, or other erection, or for improving the premises in any other manner or form consistent with the design and purpose of the act, according to the terms of the grant or bequest.

It is argued that the cemetery named in the bequest is not .connected with the church or congregation represented by the plaintiff. The cemetery is not owned by the church, and is distant therefrom about a quarter of a mile. It is the only Protestant place of burying in that vicinity. The church owns eight lots in the cemetery, and these it takes care of. Some of the poorer members of the church are buried on them, and a former pastor is-buried there. The lot of the testatrix’s grandfather is not one of the eight lots referred to. He was a member of the church, as was also the testatrix. The cemetery named in the bequest was, I think, connected with the church or congregation, within the meaning and purpose of the act.

• In this view of the statute of 1884, it is not necessary to consider the question whether the plaintiff would take the fund although the first purpose was invalid. See In re Birkett, 9 Ch. Div. 576; In re Bonnet’s Estate, 113 N. Y. 522, 21 N. E. 139. These considerations lead to an affirmance of the judgment.

Judgment affirmed, with costs. All concur.