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about the value of $65,000, after deducting claims and demands made by suit brought, and about $100,000 in value of real estate, subject to similar deductions. He left a last will and testament, which had been executed in September, 1893. His business had been that of a lawyer and a banker in Syracuse, transacting his law business mainly in his banking office. He drew the will himself, and seems to have been a very charitably disposed person, devoting eight of the eleven provisions in his will to bequeathing legacies aggregating a large amount to various charitable and religious institutions, giving specific directions in several instances as to the distribution of the funds, and stating specific objects to which he wished those funds devoted. The tenth and eleventh clauses of his will are as follows:

"Tenth. I give, bequeath, and devise all the rest and residue of my property of every kind, personal and real, wherever situate, to my trustees hereinafter named, for the purpose of founding, erecting, and maintaining Graves Home for the Aged, to be located in the city of Syracuse, in the state of New York. It is intended as a home for those who, by misfortune, have become incapable of providing for themselves, and those who have sleuder means of support. The institution to be known as the 'Graves Home for the Aged.' I hereby appoint Charles E. Stevens, Rasselas A. Bonta, and Maurice A. Graves for the trustees to execute the above trust. I hereby authorize and empower my executors, or the survivor of them, to rent or sell any part or all my real estate that I may own at the time of my death. They are authorized to employ a person or persons to have charge of the real estate, to collect rents, & to make repairs, and to pay such sums for compensation as they may deem reasonable and proper. After my executors have executed their trust, and paid all the legatees provided for in this will, they are authorized and directed to convey to the said trustees above named the balance and remainder of my property of every kind, to be applied for the purposes above provided, and the said trustees or the survivor are authorized to rent or sell all or any part of my real or personal property, and to employ such agents as they may deem proper to take charge of the same, and pay them such compensation as they deem best.

"Eleventh. My executors or my trustees are authorized to retain my stock and shares in the New York State Banking Company, and continue the business of banking for a term of years, at their discretion, but may sell the same, or any part thereof, at any time; but the same is not to be continued, nor any portion of my property held, longer than the lives of Catherine Graves Roby, daughter of Sidney B. Roby, of Rochester, and Helen Breese Graves, daughter of Maurice A. Graves, of Syracuse."

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The learned trial court found as a conclusion of law that the bequest in the tenth clause of the will was "a legal and valid disposition of the residue of the testator's estate, and constitutes and creates a valid and legal trust of such property under the laws of the state of New York, and is not repugnant to any existing statute; that the trustees therein named are charged with the duty of making effective the object the testator had in view, the supreme court to have control over such bequest; that by the terms of the said testator's will that portion of the estate of the said testator which is composed of real estate is converted into personal property for the purpose of distribution and the carrying out of the provisions of the said will." The chief contention of the appellants arises upon these con lusions. They insist that the bequest in the tenth clause is void, as against the statute of perpetuities, and in conflict with the decisions of the courts of this state, notwithstanding chapter 701 of the Laws of 1893, which was in force when the will was made, and at the testa

and 88 New York State Reporter.

tor's death, and is entitled "An act to regulate gifts for charitable purposes," and is as follows:

"Section 1. No gift, grant, bequest or devise to religious, educational, charitable, or benevolent uses which shall, in other respects be valid under the laws of this state, shall or be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If, in the instrument creating such a gift, grant, bequest or devise there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee then the title to such lands or property shall vest in the supreme court.

"Sec. 2. The supreme court shall have control over gifts, grants, bequests and devises in all cases provided for by section 1 of this act. The attorneygeneral shall represent the beneficiaries in all such cases and it shall be his duty to enforce such trusts by proper proceedings in the court."

The appellants seem to concede that this statute relieves the bequest from the objection that was so potent before the passage of this remedial act, that the beneficiaries of a trust were so indefinite and uncertain that the trust could not be enforced in their favor; but as the scheme of the testator contemplates a permanent investment of the residuary property, both real and personal, in the charity for the Graves Home for the Aged, the trust is liable to the objection that it suspends the alienation or disposition of property for a longer period than during the continuance and until the termination of two lives in being at the death of the testator. There is no doubt but that the trust is a charitable one, for a purpose highly commendable, and represented the strong desire of the testator as to the disposition of the residuary estate, and to found a home in his own name for a worthy class of aged persons whom misfortune had deprived of their means of support. Perhaps no question has more agitated and confused the courts of this state than this question of charitable uses. The statute of perpetuities was early ingrafted upon our system of law, and the wisdom and necessity of such a statute, aside from its effect upon charitable disposition of property, has not been questioned.

In Williams v. Williams, 8 N. Y. 525, the court of appeals passed upon the validity of two legacies contained in a will which took effect in November, 1841. One legacy gave to the trustees of the Presbyterian Church and Congregation in the village of Huntington and their successors, in trust for the support of a minister of said church, the sum of $6,000, which was to be invested, and the interest accruing thereon to be annually applied for such support. The other legacy constituted three persons of the village of Huntington, and their successors, trustees. Six thousand dollars was given to such trustees as a perpetual fund for the education of the children of the poor at the academy in the village of Huntington. It was objected that these legacies were void as against the statute of perpetuities, and Judge Denio, in an exhaustive opinion, reviewed the history of charities, the statute of 43 Eliz., and the law of charitable uses that had existed in England, and as administered by the court of chancery of that country. The court of appeals held that the law of charitable uses as it existed in England at the time of the Revolution, and the jurisdiction of the court of chancery over the subject, became the law of this state

upon the adoption of the constitution in 1777, and had not been repealed; that such law does not derive its origin from the statute of 43 Eliz., nor depend upon it, but that it was borrowed from the civil law, as modified by the institutions of Christianity, and at a very early period became part of the common law, and that the statute of Elizabeth merely furnished a remedy for the abuse of charities in England, but was not applicable to the circumstances in this country; that, the object of this class of corporations being to perpetuate the uses of the property acquired by them, a donor may prescribe as a condition of his gift that it be preserved in a particular manner, in order to render it subservient to the objects for which he gives it, and the statute against perpetuities does not affect property given in perpetuity to religious or charitable institutions. A brief reference to the statute of 43 Eliz., and to the jurisdiction of the English chancery in regard to charitable uses, may be serviceable here. The preamble of the statute sets forth that property of every kind had been given, limited, appointed, and assigned by the queen, and other well-disposed persons, for some or other of the purposes which it enumerates as follows:

"Relief of aged and impotent poor people; maintenance of sick and maimed soldiers and mariners; schools of learning; free schools; scholars in universities; houses of correction; repairs of bridges, ports, havens, causeways, churches, sea banks, and highways; education and preferment of orphans; marriage of poor maids; supportation and help of tradesmen, handicraftsmen, and persons decayed; relief or redemption of prisoners or captives; and aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers and other taxes."

It then recites that the lands and effects so appropriated had not been duly employed, and for redress and remedy of such abuses and breaches of trust it was enacted that it should be lawful for the lord chancellor or lord keeper of the great seal, and for the chancellor of the duchy of Lancaster, within their respective jurisdictions, to award commissions to the bishops of the diocese and chancellor and to other persons, authorizing them to inquire, as well by the oaths of 12 men, as by other good and lawful ways and means, of all gifts, limitations, assignments, and appointments, and of the abuse, breaches of trust, misemployment, and misgovernment of any property which had been appointed or assigned to or for any of the charitable and godly uses aforesaid. The commissioners had the power to make orders for the proper application of the property given in trust. These orders were to be certified to the court of chancery, and executed by the chancellor, if fit and convenient. This statute was passed in 1601. The English system of enforcing charitable dispositions of property sanctioned a twofold method. One was under the sanction and by the sign manual of the crown, and the other was through the court of chancery. The crown also exercised direct power through the chancellor, the chancellor executing the decree in the king's behalf; not as chancellor, but in the exercise of a ministerial function as the keeper of the king's conscience. The exercise of this power by the crown was called the "prerogative power." If bequests. or devises to charity, while commendable and proper in themselves, were in conflict with some law of the realm, or so defective in their nature as to be impracticable of execution,-for example, if a testator

bequeathed a sum of money in trust for such charitable purpose as he shall name thereafter, and dies without naming the purpose, and it was plain that the testator had a charitable intent, but the only power to enforce such a bequest resided in the crown, and in cases where trustees had been appointed to execute the trust, and the general nature of the trust pointed out, but no intention is expressed to limit it to a particular institution or mode of application, and afterwards, either by a change of circumstances or other reasons, it becomes impracticable to carry out the scheme of the testator,-the court of chancery (the fund once having vested in charity) will carry out the charitable intent as near the testator's particular directions as possible. This jurisdiction obtained in other cases of incomplete trust for want of a defined beneficiary, or want of appointment of agencies to carry out the trust; the principle upon which the crown and the court acted being not to permit the trust to fail if it could possibly be saved, and carry out the charity by invoking the prerogative power or the doctrine of cy-pres. The definition of the word "cy-pres" is, "as near to." Imp. Dict. This authority also defines the term as follows:

and 88 New York State Reporter.

"When there is an excess in an appointment under a power executed by will affecting real estate, the court will carry the power as near to (cy-pres) the testator's intention as practicable, and prevent such excess disappointing the general design. This doctrine is not applicable to personalty, but is confined to wills. In regard to charitable legacies, where a literal execution becomes inexpedient or impracticable, the court will execute it as nearly as it can according to the original purpose, or, as the technical expression is, 'cy-pres.'"

The doctrine is stated in 5 Am. & Eng. Enc. Law (2d Ed.) p. 936, as follows:

"Where an apparent charitable intention has failed, whether by an incomplete disposition at the outset, or by subsequent inadequacy of the original object, effect will be given to it by a cy-pres or proximate application, notwithstanding that in ordinary cases the trust would be void for uncertainty. or would result to the donor or his representatives,"-citing Adams, Eq. 69.

The prerogative power exercised by the crown was not ingrafted upon our system as a part of our inheritance of English law and chancery jurisdiction. That power only exists in this country in the legislatures of the several states.

"The jurisdiction of the court of chancery in England in relation to charities was derived from three sources: First, from its ordinary jurisdiction over trusts; second, from the prerogative of the crown; third, from the statute of 43 Eliz. c. 4. ** * This statute was embraced in the general repeal of English statutes in 1788, and it is not in force here, and it seems equally clear that our courts are not endowed with any portion of the power which the chancellor of England exercises by virtue of the royal prerogative. * * * It follows that the jurisdiction possessed by the courts of this state over trusts for charitable purposes is limited to that which the court of chancery in England possessed, independent of those two sources." Owens v. Society, 14 N. Y. 387, 388.


Several cases had been decided in this state prior to the case of Williams v. Williams, which seemed to hold a similar doctrine as in the Williams Case, but a case widely different in its facts (Bascom v. Albertson, 34 N. Y. 584) from that of Williams v. Williams, decided

16 years later, assumed directly to overrule the case of Williams v. Williams in several respects, and held that the English system of charitable uses had no existence in this state, and no place in our system of jurisprudence; that the authority prior to the statute of 43 Eliz. was exercised by the English court of chancery in respect to pious and charitable uses, and, as distinguished from other uses and trusts, was not a part of its original and inherent judicial power as an equitable tribunal, but a branch of the jurisdiction it assumed to exercise in virtue of the royal prerogative and the cy-pres powers, with which the courts of this state have not been invested; that the design and effect of the repeal of the statute of Elizabeth and of the mortmain act of 9 Geo. II. c. 36, was to abrogate in this state the English law of indefinite charitable uses, and there is nothing to withdraw gifts to mere private trustees or indefinite charitable uses from the statute against perpetuities. This case was followed by a series of other cases in the court of appeals. Pritchard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 N. Y. 312, 16 N. E. 305; Cottman v. Grace, 112 N. Y. 307, 19 N. E. 839; Fosdick v. Town of Hempstead, 125 N. Y. 581, 26 N. E. 801; Tilden v. Green, 130 N. Y. 29, 28 N. E. .880. And see Burrill v. Boardman, 43 N. Y. 254; People v. Powers, 147 N. Y. 104, 41 N. E. 432. But in Bird v. Merklee, 144 N. Y. 549, 39 N. E. 646, the court says, in speaking of Williams v. Williams, supra, and of the bequests therein mentioned:

"It was there held that the provisions of the Revised Statutes against perpetuities do not affect the property given in perpetuity to religious or charitable institutions. While this case has been disapproved as to another bequest involving the existence of the English system of charitable uses in this state, the decision sustaining the bequest referred to has not only never been questioned, but has been expressly approved in subsequent cases in this court,"-citing Wetmore v. Parker, 52 N. Y. 457; Holland v. Alcock, 108 N. Y. 337, 16 N. E. 315.

The rule established in Williams v. Williams, however, as to charitable trusts not being obnoxious to the statute of perpetuities, has received the sanction of the United States supreme court and of the courts of nearly every state in the Union outside of our own, although in those states similar statutes to our own against perpetuities are in force. See 2 Perry, Trusts (2d Ed.) § 748, note 1. "Charitable trusts are not within the rule against perpetuities, nor are they af fected by or within the scope of statutory or constitutional provisions against perpetuities." 5 Am. & Eng. Enc. Law (2d Ed.) p. 902, and notes 1, 2; Russell v. Allen, 107 U. S. 163, 2 Sup. Ct. 327; 3 Washb. Real Prop. (5th Ed.) 555, and note.

The review I have made of the decisions of this and other states and of the English system in regard to charitable uses discloses the reasons and necessity for legislation in this state defining the law as to charitable trusts in order that they might be protected in the future, and the charitable intention of donors sustained in behalf of that large class of people in our midst who are in need of all that charity can give them. The legislature of 1893 was confronted with a confused condition of things with relation to the laws of charitable trusts, nearly equal to that which disturbed the serenity of Lord Bacon, who,

54 N.Y.S.-2

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