In Re the Estate of Beekman

A motion has been made for a re-argument of this case on the ground that this court overlooked sections 114-a of the Real Property Law (Cons. Laws, ch. 50) and 13-a of the Personal Property Law (Cons. Laws, ch. 41), referring to trusts for cemetery purposes. It is true that these provisions were not referred to in our opinion; neither were they referred to by counsel in the briefs or upon the argument. We were dealing with the Tax Law (Cons. Laws, ch. 60), and what we said was with reference to the tax on transfers to a corporation created for the purpose, among other things, of maintaining and embellishing cemeteries of the Beekman family. We held that it was not a charitable corporation which exempted it from the provisions of the Tax Law relating to such taxable transfers. We have re-examined the question in the light of the sections above referred to, and see no reason for changing our opinion. Section 114-a of the Real Property Law and section 13-a of the Personal Property Law provide that gifts, grants and bequests of real or personal property in trust for the purpose of the perpetual care and maintenance, improvement or embellishment of private burial lots, in or outside of cemeteries, shall be deemed to be for charitable and benevolent uses. Strictly speaking, the will in question creates no trust for any such purpose. All the residue and remainder of the estate of whatever nature is given to the Beekman Family Association, a corporation organized in January, 1910. This is not a trust but a devise or bequest to an existing and active corporation. The will places no limitation whatever upon the use of this gift. The limitation, if any, comes solely by reason of the articles of incorporation under which the Beekman Family Association lives and acts. It is in the charter of the corporation that we find that the gift may be devoted to cemetery purposes. This was not, therefore, a trust.

But waiving this point as being a narrow construction of the statute, we must not forget that we are here dealing with a taxing statute, section 221 of the Tax Law, and find therein the exemption which the law intends to make of cemetery properties. "There shall also be exempted," reads the section, "from and not subject to the provisions of this article personal property other than money or securities bequeathed to a corporation or association wherever incorporated or located, organized exclusively for the moral or mental improvement of men or women or for scientific, literary, library, patriotic, cemetery or historical purposes, or for two or more of such purposes and used exclusively for carrying out one or more of such purposes."

It must be assumed that as this section makes a specific exemption, stating the nature of the property bequeathed to a cemetery corporation which is to be free from the tax upon transfers, all other property devised or bequeathed to such a corporation is subject to the tax. The property here in question passing by Mr. Beekman's will to the Beekman Family Association consisted of real estate, money and securities. Such property was not exempted but made subject to the tax. Neither can we say that this corporation was created exclusively for scientific, literary, patriotic, cemetery or historical purposes. Whether or not, therefore, the corporation be a charitable corporation for other purposes, it is not such a charitable corporation as brings it within this exemption of section 221 of the Tax Law.

But the Beekman Family Association for reasons intimated by me heretofore is not a charitable corporation, and I desire to state further my reasons for this conclusion. The facts are fully set forth in the previous opinion in this case.

The persons who may be benefited by this corporation are the members of the Beekman family. To me it seems apparent that a corporation formed for the purpose of educating the members of a testator's family or aiding his poor descendants or ancestors is not a charitable corporation. (Matter of MacDowell, 217 N.Y. 454;Matter of Shattuck, 193 N.Y. 446.)

At what point in the tracing back of the ancestry or in dealing with posterity does such a gift cease to be private and become public? The fact that in the articles of incorporation William Beekman who became a resident of New Amsterdam in 1647 is taken as a common ancestor and the beneficiaries are to be his descendants does not conclusively or even presumptively show that he has any descendants or that they are as numerous as the years which have intervened since his death. The Beekman family may or may not, so far as the record before us shows, be numerous. It may be that only a few are surviving descendants, but however this may be, the purpose of confining the benefits of this large estate to members of one family or one family tree indicates that it is not a public charity, but a private and rather personal purpose which permeates the whole. (Carne v. Long, 2 De G., F. J. 75; Babb v. Reed, 5 Rawle, 151; Swift v.Beneficial Soc., 73 Penn. St. 362; Mason v. Perry,22 R.I. 475.)

We said in Matter of MacDowell (supra): "If the purpose to be attained is personal, private or selfish, it is not a charitable trust. When the purpose accomplished is that of public usefulness unstained by personal, private or selfish considerations its charitable character insures its validity." (p. 460.)

But even assuming that the descendants of this common ancestor are very numerous and scattered into the branches of many other families, yet a discretion is left with the directors of the corporation to make a selection of the beneficiaries, the immediate poor or the particular member to be educated, and this might result in turning the funds of this corporation or a large part of them to the maintenance or education of a cousin or a nephew of the testator or other near relative. Such a discretion destroys the charity. (Norris v. Thomson's Executors, 19 N.J. Eq. 307;Nichols v. Allen, 130 Mass. 211.)

Under our law a trust created for the benefit of the deceased's poor relatives or for the purpose of educating his relatives would not be a charitable trust and a corporation created for such a purpose and receiving a gift to spend in this way would not be a charitable corporation. The purpose running through this entire will as indicated by the provisions relating to education, poverty, heirlooms and cemetery plots is that only members of the Beekman family, immediate or remote, are to be beneficiaries. If immediate, the purpose is clearly non-charitable and if remote the purpose does not become public. It would be a very easy method of avoiding the Statute of Perpetuities if corporations could be created to perpetuate the family name and permit the use of the funds for the maintenance and education of near or far removed relatives. As stated before, it is impossible to draw the line between the members of one family so as to make the gift to some a private gift and the gift to others a public charity. The fact that the gift is to the needy of one particular family or of the descendants of the testator or of his ancestors makes it a family matter and not one of public interest.

In Kent v. Dunham (142 Mass. 216) the gift in the residuary clause of the will was to "Samuel Leeds and Josiah Dunham, Jr., their heirs and assigns forever, and to the survivor of them and his heirs forever, in trust, to sell, dispose of, invest, and manage the same, and appropriate such part of the principal and interest as they may deem best, for the aid and support of those of my children and their descendants who may be destitute, and in the opinion of said trustees need such aid."

It was held not to be a public charity, but invalid as tending to create a perpetuity. It was said: "It is the policy of the law to prevent indefinite accumulations of property for the benefit of individuals * * *. In the expectation of the remote contingency that there shall be a descendant who is a destitute person, the fund is to be permitted to accumulate, if the will of the testator is followed. If the line of descent from the testator fails, it will have been accumulated for his heirs, it may be in a remote generation. There is no general public object sufficient to justify this accumulation, in the possible advantage which the public may obtain by having the descendants of the testator protected from beggary, and thus from becoming a public charge. To establish, as a permanent charity, a provision for a single family, and thus, it may be, to permit an indefinite accumulation of property, which might eventually be solely for the benefit of the testator's heirs, and those who may claim under them, would be foreign to the general principles of our law on this subject, and cannot be justified by so slight a prospective public benefit."

This case is entirely different from a gift for a public purpose, preference being given to the members of the testator's family. Such exceptions are mentioned in the above cases. (See, also, Paschal v. Acklin, 27 Tex. 73.)

The motion for a re-argument, for the reasons here stated, should be denied, with ten dollars costs and necessary printing disbursements.

HOGAN, POUND and McLAUGHLIN, JJ., concur, and HISCOCK, Ch. J., CARDOZO and ANDREWS, JJ., concur on ground first stated in opinion.

Motion denied.