Levy v. Levy , 1863 N.Y. App. Div. LEXIS 113 ( 1863 )

Sutherland, P. J.

I agree with Judge Mullin in the conclusion at which he has arrived, that, the judgment of the special term should be reversed or modified to a certain extent, or in certain particulars, but I do not agree with him as to the nature of such modification, or with all his reasons or grounds for coming to the conclusion that he has reached.

Some of the questions in the case are intricate and novel, and I differ with the learned judge and state my own conclusions with diffidence.

I think the devise and bequest in trust of the Monticello farm, and of all the residue of the testator’s estate, (not otherwise disposed of,) to the people of the United States, did not and cannot take effect, and is void; but"that the subsequent devise and bequest of the same property to the people of the state of Virginia, or to the state of Virginia, is valid, and must be deemed to havé taken effect.

1st. I concur with Judge Mullin in holding that the devise to the people of the United States should he considered as a devise to the government of the .United States.

2d. I also concur with him in holding that this devise to the government of the United States, if the government can take under it, should be deemed a present devise, liable to be defeated subsequently by want of action on the part of congress, and not a devise on condition that congress take certain action. A devise is not a contract, and a party holding or taking under a devise does not hold or take under a contract. A devisee must be presumed to accept.

3d. I also concur .with Judge Mullin in holding that our statute prohibiting corporations from taking by devise unless expressly authorized, &c. was not intended to apply either to the general, or the state, governments, ánd does not prevent the government of the United States taking under the devise.

4th. I also concur with him in holding that the government of the United States has power or capacity to take by devise generally; that is, that the government of the United States is an artificial being, or body politic, capable of taking by grant or devise, for its own benefit, or the benefit of the people 'of the United States. I think, too, it might take under a devise in trust for a charity to be administered or carried on in the district of Columbia, and that congress might provide by law for the administration of such charity there; because, as to the district of Columbia, congress may be said to have all the powers of legislation that a state legislature has. But in this case the devise to the government of the United States is a devise in trust for a charity to be administered or carried on at Monticello, in the state of Virginia. The school is to be instituted and carried on there. The government cannot take under the devise, for its own benefit, or for the benefit of the people of the United States. The government ought not to be deemed capable of accepting the devise, or of taking under it, unless congress has power to provide by law for the execution of the trust; that is, for the administration of .the charity, or the institution and carrying on of the school, in the state of Virginia. Congress has no such express powerand it is impossible to say that such power is to be implied as necessary to the execution of any of its express powers.

Congress might have power to create a private corporation for the purpose of carrying on the business of banking, or any other legitimate business, in a state, which might aid congress in executing any of its express powers; but congress would have no power to create a private corporation, for the purpose of administering or carrying on a private charity, in a state.

My conclusion is, then, that the government of the United States could not accept the devise, and had no power to take under it; and therefore, that the devise to the government of the United States is void.

5th. But it is plain, to me, that the testator intended, if the government of the United States did not, or could not, take under the devise to it, to devise the Monticello farm and the residue of his estate, not otherwise disposed ofj to the government of the state of Virginia, in trust, for the same charity. I think, too, the government of Virginia had capacity to take as a body politic; and that the legislature of Virginia could provide by law for the institution of the school and the administration of the charity. If so, that the devise to the government of Virginia should be deemed to have taken effect on the death of the testator, subject however to "be defeated by want of subsequent action by the legislature of Virginia. (See Avelyn v. Ward, 1 Vesey, 420; Fearne on Rem. 406, &c.; Norris v. Beyea, 3 Kern. 273.)

6th. But perhaps the most important question remains to be considered; which is this. Did the testator, by the following provision, viz: “ I direct my executors hereinafter named, or such of them as shall qualify, to invest the funds arising from said estate, in some safe paying stocks, as fast as they accumulate, and to hold the whole of the property and estate hereby devised and bequeathed, for said school and in their hands, until the proper steps have been taken by congress, or by the legislature of Virginia, or the said Hebrew Benevolent Congregations, to receive the same, and discharge said executors,” &c. intend to devise and bequeath to, and vest in, the executors, the property and estate which had been previously devised and bequeathed for the school, until &c. ? If he did, then it is probable that all the previous devises and bequests for the school as well as for the other charities, must fall or fail, for then the devises to the governments of the United States and of Virginia, must be deemed to be conditional devises; that is, on the conditions that congress and the legislature of Virginia should or did pass laws accepting the devises, &c.; and the contingency of these devises and such devise to the executors until such contingent events happened, would render the estate and property in the hands of the executors under this devise inalienable during an uncertain period. I believe this point has recently been decided by the court of appeals in the Bose will case, (so called,) but I have not seen the opinions. Considering that the testator had previously declared in his will that some of his estate, real and personal, devised for the school, should be disposed of under any circumstances, but that the rent and income thereof was to be held inviolate for the purpose of the charity, and considering the words of present devise to the government of the United" States, and other clauses of the will, not necessary to be particularly adverted to, I think the executors can do under a power all and every thing he intended them to do under the' provision of the will above quoted; that it is not nor does it contain an express devise to the executors; and that a devise to them ought not to be implied; especially as such devise, if implied, would probably defeat all of his devises and bequests for charity, and thus defeat his disposition by the will of the great bulk of his. estate. (See Tucker v. Tucker, 1 Selden, 408.)

7th. The accumulation of the funds or income directed or authorized by this provision of the will is undoubtedly void.

8th. I think that the state of Virginia or its government, notwithstanding her or its political condition or relation to the government of the United States, in March, 1862, when the testator died and his will took effect, and notwithstanding the creation of a new state or political jurisdiction, in or over the westerly part of her territory, could take under the devise to her or to her government. Monticello, where the school is to be instituted and carried on, is not, I believe, within the new state, or political jurisdiction.

9th. The said devises to the governments of the United States and of Virginia are not within the act of April 13, 1860, (ch. 350, Laws of 1860,) which declares that “no person having a husband, wife, child or parent shall, by his or her last will or 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” &c.; because 1st. I do not think that these governments are corporations within the meaning of the act, even if the words benevolent, charitable, literary, &c., &c. do not qualify the word corporation ; but 2d. It is very plain that the words or adjectives benevolent, charitable, literary &c., &c. were intended to qualify, and do qualify, the word corporation; and surely these governments, if corporations, are not either benevolent, charitable, literary &c., &c. corporations, within the meaning and intent of the act.

10th. The judgment of the special term should, I think, be modified' in accordance with the foregoing conclusions.

Clerks, J. concurred.

Mullís, J.

It would be to me a source of profound regret if the benevolent intentions of Commodore Levy, as manifested by his last will, should be defeated by reason of some rule of law which we are bound to recognize and enforce. The case is one in which it is the duty of the court to sustain the trusts in the will if it can be done without violating some well settled legal principle.

When a testator sets apart a large share of his e.state to provide for the education of the' orphan, it excites regret that our legislature should have found it necessary to embarrass, if not altogether forbid, the creation of trusts necessary to carry into effect such intentions.

The objects contemplated by the testator must be carried into effect in the state of Virginia where the premises are situate on which the school is to be located.

Part of the personal and real estate to be applied to the support of the school are situated in this state, and hence the only power which our courts have is to direct that the proceeds or income of the property within their jurisdiction be paid over to the trustee, if there is one authorized to establish and carry on such school. (Store’s Eq. Jur. § 1186.)

We cannot enforce the execution of the trust, because neither the trustee nór the subject of the trust is within this state. And we can only inquire into the validity of the devise in question so far as to ascertain that the object of the trust is not in violation of the laws of this state relating to the creation and transmission of estates in land or the conveyance of personal property. (Story's Eq. Jur. §§ 1184, 1185, 1186.)

The courts in the state where the trust is to be executed will determine for themselves, in view of their own laws, whether the trust is one which may be legally carried into effect. (Story’s Eq. Jur. § 1186.)

The purposes of the trust created by the will are charitable, within the meaning of that term in the statute, 41 Elizabeth, oh. 4, relating to charitable uses, and as used by judges and writers on the law of charities ever since the passage of that statute. In the preamble of the statute referred to, gifts, devises &c. for schools of learning, free schools and scholars of universities are recognized as valid., (Story’s Eq. Jur. § 1160.)

The use being charitable, and therefore legal, and a trustee designated, and a class or classes of persons named who are to be the cestuis que use, it would seem to follow that the trust was operative, and is so unless the trustee named has not the legal capacity to accept the trust, or to take the estate devised, or unless it is in violation of our statute designed to prevent the suspension of the absolute power of alienation beyond two lives in being at the death of the testator.

The devise is to the people of the United States, and it is urged that as there is no corporate body by that name, and no one or more of the people named, the devise is bad for uncertainty as to the trustee. It is true there is no corporation known as the people of the United States; but it is too clear to require argument to show that the testator intended the government of the United States as the trustee to execute the trust.

When the person or corporation intended to be appointed trustee is misnamed, but is nevertheless so described in the will as to enable the court to ascertain, clearly, the person intended, the misnomer will be disregarded and the person answering the description will be recognized as the trustee. (1 Jarm. on Wills, 330, 331, 339, note 2, 340, note 1.) In Minot et al. executors &c. v. The Boston Asylum and Farm School, the testator gave the residue of his estate to the Boys’ Asylum and Farm School. The executors filed their bill in equity alleging that there was no such association or corporation, but the property was claimed by a corporation known as the Boston Asylum and Farm School for indigent Boys, and praying that the court would ascertain to whom the property belonged. It was held that the Boston Asylum and Farm School was the devisee intended, and the property was ordered to be paid over to it. (Tinker v. Seaman’s Aid Society, 7 Metc. 188. N. Y. Institution for the Blind v. How’s Hairs, 10 N. Y. Rep. 84. 4 Barb. 80. 4 John. Ch. 607. 4 Paige, 271. Angelí & Ames on Corp. §§ 99, 185. 11 Eng. Law and Eq. Rep. 190.)

I entertain no doubt but that the government of the United States is the trustee intended by the testator; nor but that the United States are to be deemed and taken to be the trustee, notwithstanding the people of the United States are named.

The next objection urged to the validity of the devise is that the United States cannot take by devise, and hence the trust must fail for want of some person or body corporate to take. In this objection is involved another, which is that the government cannot be appointed, or if appointed, cannot act as trustee.

The first objection is predicated on our statute relating to devises, (3 R. S. 5th ed. 138, § 3,) which 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.”

The government, whether state or national, is not a corporation within the meaning of this statute, and hence the prohibition cannot apply to them. The corporations intended to be prohibited from taking by devise are those private or municipal corporations which are created by and derive all their powers from the legislature.

But if this is not so, if governments are to be deemed and treated as corporations, I still think they are, in the absence of express prohibition in their constitutions, capable of taking by devise. In order to ascertain" what powers a corporation may lawfully exercise, we must go to its charter, if it have have one, or, if it has none, then to the objects for which it was created, and then such powers will be implied ás are necessary to attain- such objects. The charter of the government of the United States is its constitution. That instrument enumerates express powers delegated to its various departments, but it also gives such implied powers as may be necessary to carry express powers into effect. Amongst its implied powers is the power to acquire title to real and personal property. This may be done under its power to declare war—to make treaties—to regulate commerce, and as a necessary incident to its power to support an army and navy. Indeed so vitally necessary is such power that government could not be carried on without it. The mode of acquisition is not prescribed. It may acquire it, therefore, in any way in which it is competent for an individual to acquire property by gift, or grant, or devise.

The United States not deriving any of its powers from or under any of the laws of this state, is not bound by any prohibition imposed by those laws on corporations. Our courts are doubtless bound to see that foreign corporations claiming title to property in this state have by their charters authority to take such title. But beyond this, I apprehend, we cannot go.

In Comyns’ Digest, title Devise, 1, it is said all persons may take by devise who may take by grant. The United States are in the daily practice of taking lands by grant, for the purpose of light houses, forts, arsenals, barracks, custom houses, post offices and court houses. If then the rule is a general one that those who can take by grant are capable of taking by devise, it would seem to follow necessarily that the United States may take by devise.

It was the rule at common law that a corporation could not take by devise, (Angelí & Ames on Corp. § 177,) and it is argued that this rule of the common law being in force at the time of the separation of the colonies from Great Britain, it became a part of the common law of the United States, and hence corporations ■ created by or under the authority of the United States cannot take by devise. Believing as I do that the United States is not a corporation within the'meaning of the rule of law referred to, I will not occupy more time in discussing these questions.

The other objection, viz. that the United States cannot accept a trust, remains to be considered.

It is said in Williams on Executors, p. 198, that the king may be appointed executor. As the executor holds the estate in trust for those interested in the estate, it follows that to this extent the king may take the property in trust.

It does not seem to have been directly adjudicated in England that the king may be trustee. Yet it would seem to have been repeatedly asserted that he may be not only appointed trustee, but that equity may, if the king accepts, enforce performance of the trust. (Hill on Trustees, 61, and cases cited.)

Mr. Lewin, in his treatise on Trustees, p. 30, says: “The sovereign may sustain the character of a trustee, so far as regards capacity to take the estate, and to execute the trust, but great doubts have been entertained whether the subject can by any legal process enforce performance of the trust.”

While there may be said to be some doubt whether the king or queen of England may be appointed trustee, it seems to me that in this country there is no reasonable doubt but that the government may become a trustee.

In this state, and indeed in all civilized countries where there are laws regulating the transmission of property by will and in cases of intestacy, provision is necessarily made for the control and disposition of property when a person dies without heirs or next of kin. In such cases the government appropriates it to its own use; but it takes the property subject to the equities with which it was charged in the hands of the intestate.

So also, provision is made, in this state, for the escheat of lands conveyed to aliens not authorized by law to purchase and hold lands. (1 R. S. 5th ed. 685, § 1 &c.) It is provided (3 id. 2, § 2,) that escheated lands held by the state shall be subject to the same trusts &c. to which they would have been subject had they descended. (See Bullard & Tiffany’s Law of Trustees, 328 (fee.)

The United States stands in the same relation to the people of the District of Columbia that this state does to its cit - izens. It is clothed by the constitution with unlimited power over said district. It would seem to follow that the government of the United States is entitled to exercise the same power over the estates of persons dying without heirs, and over lands escheated, that is exercised by this and other states in such cases. This point would seem to be set at rest by the case of the Smithson bequest to the United States. I have not before me a report of that case, but my recollection is that Mr. Smithson, an Englishman by birth and a citizen of that country, at his death bequeathed to the United States all, or nearly all, of his property, to be applied to the establishment of an institution for the increase and diffusion of useful knowledge. The government, through its agent, Mr. Bush, claimed the fund, and the English courts held the government entitled to it. Congress accepted the trust, and made provision for carrying it into effect. This case furnishes the highest evidence of the power of the government to take property in trust for a charitable use. Every department of the government gave its sanction to the acceptance of the bequest, in the most solemn manner, and it seems to me the question should be considered settled.

It is further objected that the devise being to the people of the United States, or to such persons as congress shall appoint to receive the property, the title is in abeyance, until congress shall accept the trust and appoint persons to carry it into effect, and that such a suspension renders void the devise.

It seems to me quite clear that it was not the intention of the donor to leave it doubtful to whom the estate should pass on his death, but that his intention was to devise the property to the United States; congress to designate the persons who should manage the fund. If I am right in this, the estate vested at once in the government, subject to be divested by its refusal to accept the trust or neglect to discharge its duties.

If the United States has capacity to take the estate and should afterwards refuse to execute it, then the question will arise whether the state of Virginia, or the Hebrew Corporations, will be capable of taking under the will. I do not deem it necessary to examine these questions now, because I cannot doubt that congress will at once accept, and take the necessary steps to give effect to the benevolent and generous intentions of the testator. But if congress refuse or neglect to accept, and the state of Virginia, by reason of her complicity in the rebellion against the United States, he incapable of taking the estate, and if it should happen that the corporations should be incapable of taking, a court of equity would appoint some person to discharge the duties of the trust. The rule of equity is that when a valid trust is created, it shall not fail for want of a trustee.

It is urged by counsel that the trust is void as creating a perpetuity, and that the trust is not one authorized by our statutes. The court of appeals has held, on several occasions, that a devise to a charitable use is valid notwithstanding both of the difficulties suggested. (Williams v. Williams, 4 Seld. 524. Owens v. Missionary Society of the M. E. Church, 4 Kern. 380. Auburn Theological Seminary v. Kellogg, 16 N. Y. Rep. 83. Leonard v. Burr, 18 id. 96. Beekman v. Bonsor, 23 id. 298.)

The clause of the will that directs the executors to accumulate the fund until the proper steps have been taken by congress or the legislature of Virginia, or the Hebrew Benevolent Associations, to receive the same and discharge said executors, may be void under the statute of this state. (3 R. S. 5th ed. 13, § 37. Id. 75, 76, §§ 1 to 5 inclusive.) But if void it does not impair the validity of the devise. It was held in Williams v. Williams, cited supra, that where a legacy is given to a religious corporation for a purpose authorized by law, tbut with a direction that it accumulate until it reaches a certain sum, before its income shall be expended, the direction only is void, and the legacy is not defeated. It is immaterial, therefore, whether the clause in question is or is not valid.

[New York General Term, November 30, 1863.

Without examining any other of the numerous questions presented by the respective counsel, I am constrained to hold that the part of the judgment of the special term which held the devise to the United States void should be reversed, and a decree entered declaring the validity of the trust, and that the residue of the judgment of the special term be affirmed.

Judgment of special term modified.

Sutherland, Clerke and Mullin, Justices.]