
    HARRIS against THE AMERICAN BIBLE SOCIETY.
    
      Court of Appeals;
    
    
      September Term, 1867.
    Will.—Devise to Corporation-.
    A corporation chartered for the purpose of receiving and holding in trust property committed to them( by bequest, &c., in trust for an unincorporated association, with power to execute any trusts confided in them by such association, may take a fund bequeathed to them to be expended under the direction and for the appropriate uses of a committee of such association.—Fullerton, J.
    The provision of the Laws of 1860, 607,—that a testator leaving husband, wife, child, or parent, shall not devise to benevolent, &c., societies more than one-half his estate, &c.,—is peremptory, and may be insisted on by any person who would derive a benefit therefrom, although not one of the relatives designated in the statute. And the one-half is to computed with reference to the estate at the time of the testator’s death.—Fullerton, J.
    • Appeal from á judgment.
    This action was brought by Ellen Harris against Jeremiah Slaght and others, the executors of Folkerd. C. Sebring and his widow, and the American Bible Society, and-three other corporations.
    Cornelius Sebring, of Ovid, Seneca county, died previously to 1830, seized, among other property, of a lot of land in that town, containing about thirty acres. He left two sons and four daughters, his only heirs-at-law. His son Folkerd died in 1861, without issue, but leaving a will, which purported to dispose of his whole estate. In 1862, Ellen Harris, the plaintiff, one of the daughters of Cornelius, brought an action in the supreme court for a partition of the thirty-acre lot, claiming one-fifth thereof, by descent. She claimed that the dispositions of her brother Folkerd's will in favor of religious societies or institutions were void, and asked for a determination accordingly.
    Cornelius Sebring left a will, the' material portion of which is as follows:
    “ Third. I give and bequeath my son Folkerd thirty acres of land on which he now lives, my young black mare, two hundred dollars in six months after my decease, and one-sixth part of my personal property not otherwise disposed of.”
    Folkerd C. Sebring by his will gave his wife a life estate in all his property, real and personal, and directed that on her death the whole should be sold by his executors, “and that the proceeds thereof be paid over to, the following named charitable societies in four equal portions.” Then were named three corporations of a religious or missionary character: viz.: The American Board of Commissioners for Foreign Missions, The American Bible Society, and The American Tract Society.
    
      The other fourth part or portion was given in the following words:
    “ Another fourth part of all the proceeds * * * to be paid over to the Trustees of the Presbyterian House, incorporated April 21,1855, by the legislature of Pennsylvania, to be expended under the direction and for the appropriate uses of the Home Mission Committee of the General Assembly of the Presbyterian Church in the United States of America.”
    The legislature of Pennsylvania, on the 21st day of April, 1855, had passed an act, which, after reciting that “The General Assembly of the Presbyterian Church,” which held its session in Philadelphia in May, 1854, had appointed John A. Brown and others named, “ Trustees of the Presbyterian House,” created those persons and their successors a corporate body by the name of the “ Trustees of the Presbyterian House.”
    The preamble recites a request that the act of incorporation “ should contain a general provision authorizing the said trustees to hold in trust for said assembly, any property committed to them by donations, bequests, or otherwise.”
    The 4th section of the act is as follows: “That the trustees hereby incorporated, and their successors, shall be subject to the direction of the said assembly and their successors, have full power to manage all funds, property, and effects committed to their care, by gift, purchase, bequest, or otherwise, and to execute any trusts confided to them by said General Assembly, or their successors, in such manner as shall be deemed most advantageous, and not contrary to law or the intention of the donor or testator.”
    The present action was tried at a special term in the county of Seneca, where the complaint was dismissed with costs.
    On an appeal taken by the plaintiff to the court at general term in the seventh district, the court held that Folkerd took a fee simple in the thirty-acre lot under his father’s will: that the provision of Folkerd’s will directing tlie sale w as valid as a power in trust; that the bequests to the four societies were valid to the extent only of one-half of the projserty so bequeathed to each. The court also directed, that after the death .of decedent’s widow, the whole of Folkerd’s real and personal estate be converted into money, and after paying to the plaintiff, the executors, and the four corporations, their costs of this action, one-eighth part of the net proceeds be paid to each of the four corporations.
    Distribution of the residue of the proceeds was also directed among the individual defendants who are descendants of C. Sebring.
    The plaintiff appealed to this court from so much of the judgment as declared that Folkerd took a fee in the thirty-acre lot; that the Presbyterian House was entitled to any proceeds of his estate ; and from the award of costs to the defendants.
    The four corporations appealed from so much of the judgment as reduced their respective bequests below one-fourth of the proceeds of Folkerd’s estate, and also from the direction concerning costs.
    
      John E. Seely, for the plaintiff.
    
      Samuel A. Foot, for the American Bible Society.
    
      George A. Titus, for the American Tract Society.
   Fullerton, J.

[The remarks of the learned judge on the effect of the devise to Fclkerd in the will of Cornelius we omit.]

2. The beneficiaries contemplated by the third clause of Folkerd C. Sebring’s will are plainly therein designated as four “societies.” The ultimate and real beneficiary, under the direction to pay over to “The Trustees of the Presbyterian House,” is not that corporate entity, nor the individual persons composing it, but some “ society.”

By turning to the Pennsylvania statute referred to by the will, and reading it as if incorporated with the will (21 N. Y., 330, 331), we find that the “society” for whose benefit this direction is given is the whole mass of persons constituting the Presbyterian Church in this country, or then General Assembly, viewed as a continuous body, or a particular session of that assembly which met in Philadelphia in 1854, or a certain committee of such General Assembly, viewing the latter in one or other of the aspects just specified. The will gives this, committee’s title as “The Home Mission Committee.”

None of these bodies are incorporated; and it may be assumed that a direct bequest to any of them, or to an individual for their use, in the general form in which they are referred to by this will as beneficiaries, would be void for uncertainty.

But it is further contended, that although the bequest is to a corporate body, it is still void because the beneficiaries are thus undefined, and are not themselves incorporated.

It is asserted that the corporation has no interest, and is a mere conduit-pipe, through which the money is to flow into the hands of the ultimate beneficiaries.

This is not exactly the fact. By the will, the fund is to be “ expended” under the direction of the beneficiaries. This implies the very reverse of a simple payment over to the latter.

By the act, this corporation is to “manage” all funds thus coming to its hands. This, to be sure, must be done “subject to the direction of the General Assembly, or their successors.”

In both these respects the will and the act substantially correspond. The latter, it is true, enjoins upon the Assembly the practice of issuing its directions to the corporation through a certain specified committee of its body; and perhaps it also requires the Assembly to devote this portion of its funds to uses supervised by that same committee. The corporate body, however, is to be the managing and disbursing trustee of the bequeathed fund.

As a corporate entity, it is to hold the custody thereof and the legal title thereto.

Both in respect to real and personal property, it is established doctrine, that a trustee to receive, manage, and disburse, or even with less powers, has the legal title, and is, in contemplation of law, the owner of the property. It must, however, be conceded that the corporate body, and the corporators, were without any actual right to any beneficial enjoyment; they merely sustain a burden for the enjoyment of the society referred to. But it seems to me that the absence of such right in the corporation, or its corporators, is not material; for such is the condition of most charitable corporations.

The beneficiaries of funds held by incorporated hospitals are persons not entitled to membership in the corporations. And it rarely happens that in such hospitals the corporate body, or any individual member thereof, has any beneficial interest. The fact appearing in this case, that the corporation must, in all substantial respects, obey the orders' of the unincorporated and fluctuating multitude for whose use it was created, or the orders of the committee thereof, can have no influence on the validity of the bequest.

Ordinary corporate bodies having charge of the temporalities of our churches are very nearly in this condition ; and if they were absolutely and entirely in it—that is to say, if the trustees were forbidden to disburse a dollar without asking the directions of a mass meeting of those who, for the time being, might chance to be attending worshipers —the corporate body would not the less satisfy the requisites of our law concerning gifts to charities, in the particulars now under consideration. The objections to the capacity of this corporation to receive the testatator’s intended bequest, seem to me, therefore, to be unfounded.

They originate in conceptions impracticably refined and subtle.

Such rigorous constructions are not adapted to the actual concerns of life. The cases cited have been examined, as also the learned and elaborate opinion of the present Chief Judge (Davies) in Downing v. Marshall, reported by Mr. Howard (23 Practice Reports, p. 10). The plaintiff virtually admits every proposition required to support the bequest to “ The Presbyterian House,” except what may be involved in the nice criticism referred to, and that is not, in my judgment, supported "by anything found in these citations.

3. The act relating to wills (Laws of I860, p. 607) enacts that “No person having a husband, wife, child, or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious, or missionary societies, association, or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of onehalf, and no more). ”

The testator left no relative or connection named in this act,' except a wife ; and she consented to the disposition.

The societies contend that the act was made exclusively for the benefit of the persons referred to. by it, and that no others can insist upon the prohibition, or claim its enforcement.

The general term held, and, I think, correctly, that the prohibition is peremptory, and may be insisted on by any person who would derive a benefit therefrom.

The language is absolute; and if the courts have power in any such case to judge concerning the probable motives of the legislature, and may imply, accordingly, an exception to the positive terms of a statute (on which no opinion need now be expressed), I am unable to discover any safe ground for such a proceeding in this instance.

Consistently with this act, a testator, having the relatives and connections specified, may give half of his estate to a nephew or any remote collateral relative, or, indeed, to entire strangers, and give the other half to the societies described.

It is, therefore, quite clear that it was not designed to compel testators to provide for their families. If a man whose entire estate consisted in realty, and who had none of the relatives mentioned, and only a wife, should die without a will, his widow would take only a life estate in one-third .of his lands.

Yet in such a case the statute of 1860 avoids the devises which such a person might have made, to a much greater extent than is necessary to protect all benefit which the widow could possibly have derived front an intestacy.

The widow may have been barred of dower by a jointure (1 Rev. Stat., 741, §§ 9,10,1st ed.). She may have been incompetent to take from alienism; yet, in either of these cases, if the construction claimed be correct, her consent alone would give effect to a devise not otherwise sustainable.

So to hold would not be implying an exception from the nature and reason of the thing (1 Johns. Cas., 131).

It would be repugnant to both, and violative of our plain duty, to administer the law as we find it written.

The reasons assigned by Judge T. A. Jonhson in support of the judgment below on this point, are satisfactory and conclusive (Harris v. Slaght, 46 Barb., 470).

4. The enactment in question is, that no person shall “by will or testament give or bequeath” to any society of the classes named, “ more than one-half part of his or her estate after payment of his or her debts. ”

As the parties concur, and perhaps rightly, in construing this act as prohibiting dispositions to these purposes, by the same testator, which, taken together, exceed one-half of his entire estate, I will assume that such is the law. Ho doubt it was the legislative intent.

The supreme court determined that the societies can take only one-half of the proceeds which may be realized on a sale of the estate at the widow’s death.

On this a question arises whether the statute, in speaking of one-half of the testator’s estate, is not to be regarded'as referring to the estate left at the testator’s death.

Upon the words and the reason of the thing the affirmative is quite clear. No higher authority can be found ; nor does a resort to precedents seem needful on a point so plain.

If a man leaving two infant children should give each an estate for life, with remainder in fee to his issue, should limit cross-remainders in fee in default of issue, and make an ulterior disposition for a sale, and the payment of proceeds to charitable societies on failure of issue living at the survivor’s death, the judgment below assumes that, on the occurrence of the latter contingency, the societies could take only half of the value at that time.

Nearly or quite a century might have elapsed, and, owing to depreciation or other causes, the proceeds might not amount to one-tenth of what was the value at the testator’ s death. Yet it is supposed that one-half of this diminished fund should go as upon an intestacy to the next of kin. I do not think so.

The Roman lex falcidia forbade a testator to give more in legacies than three-fourths of his effects ; so that there must remain to the heir one-fourth (Justinian's Inst., book 2, chap. 22; see Cooper’s edition, page 173; see the law itself in the Digest, lib. 35, tit. 2, 1. 1).

Like the act now under consideration, this law does not, in terms, specify any time for the valuation.

But, commenting upon it, the Institute speaks as follows :—

“ The law falcidia looks to the quantity of his estate at the time of the death of the testator ; and therefore, if he who is worth but an hundred aurei at his decease, bequeath them all in legacies, the legatees must suffer a defalcation ; for they will be entitled to no advantage, although the inheritance, after the death of the testator, and before it is entered upon, should so increase by the acquisition of slaves, the children of female slaves, or the pro- • duct of cattle, that after a full payment of the 100 aurei in legacies an entire fourth of the whole estate might remain to the heir ; the legacies, notwithstanding, would still be liable to a deduction of one-fourth.
“ On the contrary, if the same testator had bequeathed only 75 aurei, then, although, before the entrance of the heir, the estate should be so decreased by fire, shipwreck, or the loss of slaves, that its whole value should not be more than 75 aurei, or less, yet the legacies would still be due without defalcation” (Justinian's Inst., books 2, chap. 22, § 2; see Cooper’s .ed., p. 174, and also the editor’s note on this § 3 at page 533).

In Sander’s Institutes of Justinian (p. 336, 3rd ed., 1865), it is said that “the calculation under the lex falcidia was made at the time of the testator’s death.”

The subject is treated of to the same effect, and with great fullness and detail, by Domat (Domat's Civil Law, part 2, book 4, title 3, § 1, articles 3706, 3707, 3708; see Boston ed., 1850, edited by Cushing, vol. 2, 588).

When a testator disposes of his property in such a manner that one-half of the corpus can be severed from the other at his death, the administration under the statute of 1860 is very simple. But if (as he may) he devise it by way of successive estates, or interests, the task of distribution between his next of kin and the charitable societies to whom he has bequeathed in excess of his powers may be somewhat more difficult. Still it is not impracticable.

It should be adjudged that the four societies will not be entitled to receive a greater sum in the whole, from the proceeds of the sale directed by Folkerd C. Sebring’s will than would be sufficient, on a proper calculation, to pay and satisfy at that time a debt then yet remaining unpaid, which, at the testator’s death, was equal in amount to the then value of one-half of the testator’s estate, over and above his debts.

And also, that if there should be any residue of such proceeds, the costs awarded in the court below be paid out of the same; and the balance thereof distributed to the next of kin of the said testator, in the proportions specified in the judgment of the general term.

With these modifications, the judgment appealed from should be affirmed.

These are my views of this case, and my brethren concur in them, with this exception :

They are of the opinion that the case of Van Derzee v. Van Derzee (36 N. Y., 231) controls,and requires a decision that Folkerd C. Sebring took a life estate only.

I am unable to acquiesce in that conclusion. But it follows that the. judgment of the general term, so far as it holds that Folkerd took a fee, must be reversed; and that with the modifying adjudication above suggested, the judgment must be in all other respects affirmed.

None of the parties are to have costs on this appeal, and the proceedings are remitted to the supreme court, with directions to enter judgment accordingly.

Judgment that Sebring took only a life estate, and that on his decease the estate in the thirty acres mentioned descended to the heirs of his father, as in case of intestacy.  