
    SHIPMAN v. FANSHAW.
    
      N. Y. Court of Appeals ;
    
    
      March, 1885.
    
    Action to construe will.—Legacies ; vested or contingent.— Corporations ; capacity to take by will.—Associations ; CAPACITY TO TAKE BY WILL.—FORMER ADJUDICATION; RECIPROCAL ESTOPPEL.—EXECUTORS AND ADMINISTRATORS ; PAYMENT.
    The rule that the courts lean toward construing a testamentary gift, as vested rather than contingent, is subject to the more general rule, that the intention of the testator, as gathered from the whole will, is to be given effect, as far as may be.
    Where it appeared from the terms of a will containing gifts to charitable and religious societies, that testator was aware that some were incorporated and some were not, but that he contemplated the future incorporation of those that were not, and, after providing for the support of his wife for life, by the income of a fund, he authorized the sale, after her death, of his real property and the addition of the proceeds to such fund, and, after payment of legacies, expenses and mortgages therefrom, directed that the balance of the aggregate fund be “then” divided into shares which “I give,” respectively, to such societies and.others,—Held, that the bequest to the societies did not vest until the death of the widow, and such as became incorporated before that time with power to take by will were entitled to take.
    The rule in Warner v. Durant (76 H. T. 136), that “where there is no gift, but a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives,”—applied.
    The rule that, when legacies are payable in the future, without any condition annexed, or expressed intention to the contrary, they vest at testator’s death,—does not apply where his intention is apparent that they shall only vest- at the happening of a particular event and on the fulfillment of the conditions annexed.
    The rule in Burrill e. Boardman (43 N. 7. 354), that a bequest limited to the use of a corporation, to be created within the period allowed for the vesting of future estates and interests is valid,—applied, to sustain a bequest after the widow’s death “ to the First Reformed Low Dutch Church that may be built after the year 1856, between the 5th avenue and the East river, and 79th and 95th streets.” Although no time was limited for the building of the church, the legacy became vested at the widow’s death, if the church was then incorporated and had legal existence, otherwise the legacy would lapse; hence, only the single life was involved in the limitation.
    One who was not a party to the action cannot, by accepting the result of the judgment therein, make the judgment res adjudicate in his favor, even as against a party to the action who accepted the fruits of the judgment or a payment in accordance therewith; because, to create an estoppel by judgment, the estoppel must be reciprocal.
    Executors are not to be required to account a second time in respect of moneys which they have duly paid, in accordance with a judgment which was obligatory upon them, although the judgment be afterward overruled or reversed.
    Appeal from a judgment of the general term of the supreme court, reversing in part the judgment of the trial court.
    Asa L. Shipman, as surviving executor of the last will of Daniel Fanshaw, deceased, brought this action for the construction of said will against Daniel Fanshaw and others, legatees, under the will, and next of kin of the testator.
    The question in dispute was as to the validity of bequests in the will, in favor of certain societies not incorporated at the time of the testator’s death, but which were all incorporated at the time of the death of his widow. The provisions of the will material to this question, and the further facts, appear in the opinion.
    
      8. H. Thayer, for the executor.
    
      Joseph A. Shoudy, Alfred Roe, and J. H. K. Blaunelt, for the next of kin.
    
      Charles B. Knox, for the American and Foreign Christian Union.
    
      B. P. Allen and John L. BUI, for the Prospect Hill Reformed Dutch Church.
    
      
      Jo7m E. Parsons, for the New York City Mission and Tract Society.
    
      W. W. Hbppin, Jr., for the Woman’s Hospital Association.
    
      
       The most recent case on this rule is McArthur v. Scott, U. S. Sup'm. Ct., Oct. Term, 1884; 5 Sup'm Ct. Reporter, 652.
    
   Miller, J.

The testator, by his will, devised to his widow, during her natural life, the use, net income and profits of his residence on Third avenue, in the city of New York, and the nineteen lots and gores connected therewith. He also directed his executors to sell so much of his real estate, not specifically devised, as would be sufficient to produce an annual income of $1,500, by investing the proceeds in bonds and mortgages, which annuity was to be paid to the widow of the deceased in semi-annual installments, as long as she-might live. Provision was also made for the sale of any portion of the real estate, the proceeds of which should be required for the payment of repairs, taxes, assessments or other exigencies, and after the dea^h of his-widow, the testator authorized his executors, to sell what remained of the real estate, and add the proceeds of the sales to the amount invested to produce the widow’s annuity of $1,500; and from this fund he directed them to pay the widow’s funeral expenses, and such debts as she might have contracted, as well as all mortgages which might then be standing against him. He then directed that the balance of said fund be “ then” divided into eight equal shares, as stated in the will.

The main questions which we are called upon to determine in this case, relate to the disposition made of four of these shares, one to the American and Foreign Christian Union, one to the New York Tract Society, and two to the Reformed Low Dutch Church. Neither of these societies was incorporated at the time of the decease of the testator, but they were all incorporated at the time of the death of his widow

The clauses in the will relating to these - four bequests are as follows:

“One other portion I give to the American and Foreign Christian Union, formed in the city of New York in the year 1849. The interest to be expended yearly in donations of their publications among the sabbath school libraries.”
“One other portion 1 give to the New York Tract Society, founded in the city of New York on February 19, 1827. The interest therof to be expended each and every year, in the purchase of the American Tract Society’s publications; said works to be distributed among the most depraved part of the population of the city of New York.”
“Two other portions I give to the first Reformed Low Dutch Church, that may be built after the year 1856, between the Fifth avenue and the East river, and Seventy-ninth and Ninety-fifth streets.”

The most important question to be decided in relation to these bequests is, whether they vested immediately at the time of the death of the testator, or afterward at the decease of his widow. If the gift of these legacies was intended to be immediate, upon the death of the testator, and therefore, vested at that time, then the directions in the will concerning them were inoperative and void, for the reason that they were bequests to societies which were not incorporated by the laws of this State and which, therefore, could not take. If the bequests made were ineffectual on account of t he incapacity of the societies named to take the same, then the four parts of the fund created would not be disposed of by the will, and necessarily, and according to law, would vest in the next of kin of the testator, and if so vested, their right to the same would not be divested or impaired by any subsequent action or incorporation of these societies or associations. If, however, they did not become vested until the death of the widow, then the societies named, being incorporated according to law, were authorized to take.

The question arising as to the vesting of the bequests referred to, must be determined by the intention of the testator to be derived from the will itself. It may be assumed, we think, that the testator understood at the time of making the will, that the societies named in the clauses under consideration were not incorporated, for he refers to each of them in language which plainly indicates that such was the case, while in other bequests made to incorporated societies, he mentions them as such, and states the time when they were so incorporated. In regard to the legacy to the Dutch Church, he refers to the church as one that may be built after the year 1856, thus showing that he knew the fact that it had no legal existence at the time. It is thus apparent that he had in contemplation the future incorporation of the societies and of the church named, by means of which they would be competent to take the bequests made in his will. He evidently was looking to a future and not a present vesting of the bequests. He first provided for the support of his wife during her life, and then for a dis position of the proceeds of his estate which might remain after her death. It was at this time and not before, that the legacies named were to take effect. He expressly declares that .-‘then” the balance of said fund shall be divided. Until then, it could not be divided, and was to be held for the purposes named in the will. Prior to that time it was given to nobody, and it was only after the death of his widow that the division could be made and these provisions of his will carried out. It was “ then,” as the will says, “I give” in the clauses referred to. There is nothing in the language employed which indicates that before his widow’s death he intended to make a gift or to vest any gift in the legatees named.

Giving to the will the interpretation which is to be derived from its import and the purposes in view, and to the language employed the construction appropriate to the terms used, it is a reasonable and fair inference that the testator’s intention was, that the bequests made should not become vested until the happening of the event upon which they might be made available. Any other construction would impute to the testator a design to effect an object contrary to the plain meaning of the language employed. It should be borne in mind that the fund out of which the legacies in question were to be paid, had no legal existence until the decease of the testator’s widow. It was upon the happening of that event that it was to be created, and it was only then that it could be ascertained what the fund would be. It might be more or less, according to the exigencies provided for by the will, and it might be nothing, and it was only in case a balance remained that the same was to be divided as directed. It was then to be disposed of or given away, and not before that time.

In Vincent v. Newhouse (83 N. Y. 505), the testator, by his will, gave certain lands to his wife for life, and directed that at her death the lands should be sold by the executor, and the proceeds equally divided among three of his children named, and the children of three others, share and share alike, and if either of the heirs mentioned should die after the date of his will and before their shares were paid them, the share of the one so dying without issue to be equally divided among the other heirs before named, and it was held that the will intended a conversion of the land into money; the actual conversion, however, not to take place until the termination of the life estate, and that the land was converted into money from the time the sale was directed to be made, and that no portion of the remaindér vested at the death of the testator, but only upon the death of the widow.

In the case cited, it was not until the conversion of the land into money that the fund was created which was disposed of by the will, and it was only then that the estate became vested. As was said in Hoghton v. Whitgreave (1 Jac. & Walker Ch. 145), quoted in the opinion in the case last cited, “Not only was there no bequest before the widow’s death, but the subject matter did not then exist in the shape and form in which it was given.” Vincent v. Newhouse (supra) is analogous to the cáse at bar and directly in point. Although, in the case now considered, the direction to sell was not imperative, as it is apparent from the general provisions of the will, that the testator intended such real estate to be sold, the doctrine of, equitable conversion will apply (Power v. Cassidy, 79 N. Y. 602). The present case is far stronger than that of Vincent v. Newhouse (supra) upon the question of the vesting of the estate prior to the death of the testator’s widow, for not only was the land to be sold and converted into money, but the annuity fund was to be taken, in connection with the proceeds of the sale, and constituted a portion of the entire fund, from the proceeds of which the legacies in question were to be paid. The whole estate wás thus held for the purposes named during the lifetime of the testator’s widow in abeyance, to become vested in the legatees named, only upon her decease, and after a fund had been realized, to be disposed of and distributed as provided. Upon the happening of that event, as the real estate was to be sold and converted into personalty, it must be regarded as having passed through the change provided for by the will, whether sold or not, and become vested in the legatees named (Savage v. Burnham, 17 N. Y. 561 ; Manice v. Manice, 43 N. Y. 303).

It is manifest that the testator had in contemplation the legal organization of the societies to which the bequests stated were made, by the incorporation of the same. It was only upon such a contingency that the legacies mentioned would vest in the legatees, and it follows that each of the bequests was dependent upon the conditions to be performed during the life of testator’ s widow.

Considering the purposes which were to be accomplished, it is quite clear that the legacies, given by a division of the fund into eight parts, did not become vested at the testator’s death. The" fund was only to be enjoyed upon the happening of a future event, and until then no benefit was to accrue from the same. It was not in the nature of a legacy given where the time of payment is postponed for the satisfaction or convenience of the estate, as where land is devised to A. for life, remainder to B. in fee, charged with a legacy to C. payable at the death of A. where the legacy will vest instanter, within the rule laid down in Jarman on Wills (5th Am. Ed.) 7835. In such a case, the legacy is absolute and vests at once, while the payment of the same is deferred. In the case at bar, the postponement is not for the benefit of the estate, and, by the express provision of the will, the legacies can only take effect and become vested upon a disposition of the fund created thereby. The gift rests entirely upon a future event, and it is only when that occurs that it springs into existence. Prior to that, it has no vitality or force.

It was, no doubt, the intention of the testator that all the eight shares of the fund created, were to vest at the same time. The first of these to the grandchildren, contains no words of gift, but the testator •declares, preliminarily, that the balance of the fund shall be divided into eight shares and disposed of as afterwards provided, and then he directs that one portion shall be divided among his grandchildren. The use of the words “disposed of,” in connection with the other language employed, cannot, we think, be said to be sufficient to create a gift which became vested immediately upon the testator’s death, and the rule as laid down by Folger, J., in Warner v. Durant (76 N. Y. 136), that “where there is no gift but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives,” applies. It is apparent that the first share could not have vested at the testator’s death, and that he did not design that any of them should vest until the decease of his widow, and the final distribution and division of the fund to be created under his will.

We are referred to some authorities to sustain the position, that when legacies are payable in the future, without any conditions annexed, or expressed intention to the contrary, they vest at the time of the death of the testator ; but none of these cases are applicable where the intention of the testator is apparent, as in the case at bar, that the legacies should only become vested at the happening of a particular event, and the fulfillment of the conditions annexed, upon which alone they would become valid and effectual.

From the examination we have given to the question discussed, we think the conclusion inevitable, that the legacies in controversy became vested in the lega-, tees named at the death of the testator’s widow, and the creation of the fund provided for by the will. At that time the societies and church named were incorporated and authorized by law to take, and it was not necessary that they should be incorporated prior to the testator’s death. It was quite enough that they had an actual, legal existence. at the death of the widow, at which time the division was to be made and the right to receive their portions of the fund only accrued.

It was also sufficient that the legatees were so described that they could be ascertained and known when the right to receive the legacies existed (Holmes v. Mead, 52 N. Y. 332; Lefevre v. Lefevre, 59 N. Y. 434).

The legatees being specifically named in the will, and the intention of the testator manifest, that they should become legally authorized to take under the same, the case is brought directly within the principle laid down in Burrill v. Boardman (43 N. Y. 254), where it is held, that a bequest, limited to the use of a corporation to be created within the period allowed for the vesting of future estates and interests, is valid. In the case cited, the will provides for the establishment of a hospital, to be incorporated within two years after the testator’s death, provided two lives named in his will should continue so long. This provision might well apply to the case cited where there was no existing law for the incorporation of the hospital named, which the testator intended to provide for, and without which the gift would be of no avail and could not be carried into effect. Such a provision is not material in the case at bar for the reason that valid provision is made by law for the organization and incorporation of the church and societies named, and, therefore, no directions were required. Besides, as already indicated, the language of the will in question shows that the testator had full knowledge of the facts as to the formation and existence of the legatees, and a clear intention that they should be organized according to law in order that they might receive the benefit of his bounty.

It is claimed that no time was limited within which the Dutch church was to be built, that the time was indefinite, and that it might take place within five years, and might not within one hundred, and therefore, that the contingency might not arise within the lives of any two persons in being at the time of the death of the testator. There is, we think, no foundation for this position, for the legacy named depends upon the lawful organization of the church prior to the decease of the testator’s widow. Upon the occurrence of that event, the right to the legacy became vested if the church was then incorporated and had a legal existence. If it had no such existence, then the legacy lapsed and vested in the next of kin of the testator. There being no legal organization to take, it would follow, that there was no body authorized to receive the legacy. Only a single life was involved that limited the bequest, and upon the termination of that life the legacy became vested, if the legatee was at that time authorized to take the same. It could not, therefore, remain undetermined for any period of time after that event.

The remarks made in this connection are expressly applicable to the incorporation of the American and Foreign Christian Union and the New York Tract Society.

There is, therefore, no question in regard to the vesting of these different portions of the estate at the time of the testator’s death, or subsequent thereto and up to the period of division and distribution in accordance with the will, and after a careful examination, we are satisfied that the legacies which have been the subject of consideration, were valid and effectual. To hold otherwise would be in direct violation of the intention of the testator, as expressed by his will, and the principles of law which are applicable to the construction of instruments of this character.

It follows that the generál term erred in reversing the judgment of the trial court as to the legacies in question.

The remaining question relates to the right of the Woman’s Hospital Association, to the payment of a portion of the interest of a legacy of $9,000, and the payment of the principal after the death of the testator’s sister, daughter-in-law and sister-in-law. As this bequest was not to be paid over until after the termination of three liyes in being, at the death of the testator, there was an illegal suspension of the power of alienation beyond two lives, and the bequest, together with the bequest of the income of the fund is void (3 R. S. [7th. Ed.] 2256 §§ 1, 2; lb. 2176, §§ 14,15.)

The provision in the will creating the trust is not capable of being separated into different parts, so as to render a portion of it valid and another portion void. It is claimed that this legacy is subject to the provisions of sections 18 and 19 of 3 R. S. (7th. Ed.) 2176, and hence is valid, but we think that these sections are not applicable to a case of this character.

Nor do we think that the question as to the validity of this bequest to the Woman’s Hospital, is res adfudicata by reason of the judgment in the case of Forrest v. Fanshaw. The Woman’s Hospital was not a party to that action, and no affirmative relief was asked for against it, and the point now presented could not properly have been raised or litigated and passed upon in that action so as to bind the hospital. To act as an estoppel, the judgment must be reciprocal and binding upon both parties. In the case cited the validity or invalidity of the bequest could not have been made the subject of adjudication, for the reason that the Woman’s Hospital was not a party, and this difficulty is not obviated by the fact that the hospital claimed and sought to avail itself of the benefit of the judgment. We are unable to perceive that the claim made distinguishes the position of the Woman’s Hospital from that which it would occupy if the decision had been adverse, and it had made the objection to the judgment, on the ground it had not been a party to the action. By accepting the result of the determination, it did not change the relation which it occupied to the other parties in interest. It cannot, we think, be said, that because it received a portion of the legacy and •thus acquiesced in the judgment, the other parties are precluded from objecting, that the judgment was not binding upon it. Its acceptance of the benefits of the legacy was not an act done as a party to the action, but independent of the judgment, and cannot affect the rights of the other parties to object to the validity of the bequest. The fact that the persons urging the objection were parties to the suit in which this determination was made, and as to them the court decided the bequest was valid, does not,, we think, prevent their urging the objection to its validity as against one who was not a party and, therefore, not affected by the judgment. As the Woman’s Hospital was not entitled to the benefit of this legacy for the reasons stated, the general term erred in holding otherwise.

The payments by the executors of some portion of the income of the legacy to the Woman’s Hospital were made in accordance with the judgment referred to, which was obligatory upon them, and hence they should not be called upon to account for the same.

For the'reasons stated, the judgment of the general term should be reversed, and judgment of the special term affirmed, except as to the Woman’s Hospital, and as to that, reversed, and the provision declared to be void, with costs of all parties to be paid out of the fund.

All concur, except Rapallo and Andrews, JJ.¿ not voting.  