
    Edward W. S. Johnston, as Executor, etc., of Joseph Hughes, Deceased, Respondent, v. Henry Hughes and Others, Respondents, Impleaded with The Sisters of the Poor of St. Francis, Appellant, and Another, Defendant.
    First Department,
    April 20, 1906.
    Will—"bequest to hospital—when beneficiary sufficiently identified — charitable corporation cannot take bequest for religious purposes.
    A bequest to “the Trustees of St. Francis Hospital in the City of New York” sufficiently indicates the object of the testator’s bounty, although there is no corporation of that name, when it appears that there is a St. Francis’ Hospital in the city of New York which is maintained by the Sisters of the Poor of St. Francis, a domestic corporation.'
    But when such bequest is made “for the .benefit and use of the Blessed Virgin Mary Purgatorial Fund of said Hospital ” and no such fund exists, and the intended beneficiary is not a religious corporation, but its purpose, as fixed by its charter and the law under which it was organized, is,the ¿are of the bodies of the living and not the welfare of the souls-of the dead, the gift is not within ■ the powers of the corporation, and it is not enti.tled to take.
    Under such circumstances, the gift cannot be made valid on the theory that the testator intended to create such fund.
    O’Brien, P. J., and Ingraham:, J., dissented, with opinion
    Appeal by the defendant, The Bisters of the Poor of St. Francis, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Hew York on the 8th day of Hovembe'r^ 1905, upon the decision of the court rendered after a trial at the Hew York Special Term in an action for the construction of a last will and testáment.
    
      John E. Donnelly [Alfred J. Amend with him on the brief, Amend & Amend, attorneys], for the appellant.
    
      
      Edward W. S. Johnston [Lewis Johnston with him on the brief], for the plaintiff, respondent.
    
      John H. Rogan, for the defendants, respondents.
   Clarke, J.:

The last will and testament of Joseph Hughes, deceased, contained the following clause: “Third: I give and devise to my Executors hereinafter named or such on'e of them as shall qualify, all my real estate situate, lying and being in. the State of Hew York, in trust, to sell and dispose of the same at public or private sale, and to divide the net proceeds ‘of such sale as follows: Three equal fourth parts thereof to the Trustees of St. Francis. Hospital in the City of Hew York for the benefit and use of the Blessed Virgin Mary Purgatorial Fund , of. said Hospital; one equal eighth part thereof to my sister Susan M. Biordan; one equal sixteenth part thereof to my niece, Mary C. Adams, and the remaining equal sixteenth part thereof to my nephew, William Michael Hughe's.”

The learned court found as facts that there was no body corporate known as St. Francis’ Hospital; that the Sisters of the Poor of St. Francis is a domestic corporation duly organized and existing under the provisions of chapter 201 of the Laws of 1866, and the only objects of the said corporation specified in the act of its incorporation are the care of the sick, aged, infirm and poor; that the object of the testator’s bounty is not within the corporate purposes and powers or any of them of the defendant, the Sisters of the Poor of St. Francis; that the said corporation maintains a hospital in the city of Hew York popularly known as “ St. Francis’ Hospital; ” that there never was and is not now a ‘ Blessed Virgin Máry Purgatoria,! Fund,’ maintained by the defendant, the Sisters of the Poor of St. Francis, or by said Hospital; ” that the only.possible object of a Purgatorial Fund is the saying of masses for the spiritual welfare of the souls of the dead in Purgatory; ” and, as a conclusion of law, that the devise or bequest to the trustees of St. Francis’ Hospital for the benefit and use of the Blessed Virgin Mary Purgatorial Fund of said hospital is invalid and void.

, The appellant duly excepted to' such finding, and alone appeals from the judgment entered in accordance with the decision.

Although the will describes the legatee as “ the Trustees of St. Francis’ Hospital in the City of Hew York,” and there is-no corporate entity known as St. Francis’ Hospital, and hence no trustees thereof exist, there is no difficulty in identifying the intended object of the testator’s bounty, in that it appears that there "is a St. Francis’ Hospital in' the city of Hew York .and that it is maintained by the Sister’s of the Poor óf St. Francisca domestic corporation. It being clear that it was the intention of the testator that the managers of the hospital should take -the bequest, we can hold the corporation to be the intended legatee. This view is strengthened by the fact that the charter of the corporation provides that “ no misnomer of said corporation shall defeat any gift, grant or devise, provided the intent shall sufficiently appear that any estate or interest was made to be vested in said corporation.”

The question remains, was it a valid gift Í Was it for an object within one of the corporate purposes ? Judge Rafallo, in Holland v, Alcock (108 N. Y. 337) stated the! question to be “ whether the grantor or devisor of a fund designed for charity is competent to give, and whether the organized body is endowed by law with capacity to receive and to hold and administer the gift.” The appellant’s charter provides: “The objects of said corporation are the gratuitous care of the sick, aged, infirm and' poor.” The .gift was “ for the benefit and use of the Blessed Virgin Mary Purgatorial Fund of said Hospital.” It is conceded and established that the only possible object of a purgatorial fund is ¡the saying of masses for the spiritual welfare of the souls of the dead in purgatory. There is no such fund existing. I do not understand that the gift can be held good under the contention that the testator intended, to create such a fund, but that it must rest upon the proposition that the bequest would go to the appellant absolutely as a general gift if the same was donated for an object within any one of its corporate purposes. A corporation’s purposes are fixed by its charter and the ■ 'laws under which it is organized. This corporation is not a religious corporation and is not organized under the Religious Corporations Law. (Laws of 1895, chap. 723, as amd.) To constitute such, it must be either, first, an incorporated church created to enable its members to meet for divine worship or other religious observances-; or, second, an incorporated congregation, society or other assemblage, accustomed to meet for the same purpose. (See Id. § 2.) If it were such, a fund of the character intimated might be properly within the objects of the corporation, for, certainly,- to a considerable portion of the community the saying of masses for the poor souls is a most, deeply religious observance. But this corporation has for its object the care of the bodies of the living and not the welfare of the souls of the dead.

In Chamberlain v. Chamberlain (43 N. Y. 424), cited by appellant, the testator sought to dispose of his residuary estate to the Centenary Fund Society, a Pennsylvania corporation, and the court said: “ The validity of the provision in favor of this society depends upon its power to take and hold in the manner and for the purpose indicated by the testator.” The court then points out that the society had power to take and hold property for such purpose within certain limitations as to amount. So, in Matter of Strickland’s Estate (17 N. Y. Supp. 304), the testator gave to the trustees of each of four incorporated religious societies a sum of money, in trust, to be invested, and the interest to be applied to the support of the pastor in charge. The General Term said: “The gift in each case was for one or more of the purposes of the incorporation of (he institution" to which it was made, i In the ease of each of the four, churches it was for the support of the pastor—a recognized and undoubted purpose for which the church was organized—-and therefore the gift was not only to the corporation, but was directly for.its benefit.”

In Fosdick v. Town of Hempstead (125 N. Y. 581) Judge Peckham said: “ The gift, in order to take effect as an absolute one, must be for some one or all of the purposes for which the corporation was created,” and points out that “the cases of Wetmore v. Parker (52 N. Y. 459); Le Couteulx v. Buffalo (33 id. 333); Vail v. Long Island Railroad Co. (106 id. 283) were all instances of a gift to a corporation having power to take for the purpose that the gift was intended, and hence a direction accompanying the gift that it was to be use'd only for a corporate purpose, or that the income only was to 'be used, did not create a trust.”

In Bird v. Merklee (144 N. Y. 550) Judge Bartlett said : “ If it were necessary, in order to sustain the bequest, these words of designation by the testator might be treated as merely precatory/ but we think it was entirely competent for him to apply his bounty to the whole or any one or more of the 'various purposes for which the corporations are authorized to hold property.”

As it seems' clear that the object of this gift was not within any of the purposes of this corporation, J find myself, under the authorities cited, in - agreement with the. learned judge who decided this case at the Special Term, when he said : T have searched in vain to try and find some ground upon which -I could be justified in upholding this bequest, trying to bring the unquestioned intention of the' testator within legal bounds, so that effect may be given to what his undoubted desire was, but I cannot do it.”

' So far as the suggestion is made by tile executor on this appeal as to the proper disposition of this void legacy it is sufficient to say that there having been no appeal by any of tlie parties interested, that question is not before us.

The judgment appealed from should be affirmed.

Patterson and Laughlin, JJ., concurred ; O’Brien, P. J., and Ingraham, J., dissented.

Ingraham, J. (dissenting):

The question presented in this cáse depends upon the construction to be given to the last will and testament of Joseph Hughes, of the city of Hew York. The testator, after ■ devising certain lands in the State of Pennsylvania, provides: I give and devise to my Executors hereinafter named or such one of them, as shall qualify, all my real estate situate, lying and being in the State of- Hew York, in trust, to sell and dispose of the same at public or private sale and to divide the net proceeds of such sale as follows: Three equal fourth parts thereof to the Trustees of St. Francis Hospital in the City of Hew York for the benefit, and use of the Blessed Virgin Mary Purgatorial Fund of said Hospital,” with a bequest of the remaining fourth part to his «ister, a nephew and niece. It appeared that there was no St.-Francis’-Hospital in the city of Hew'York j .but that there was a corporation incorporated by a special act of the Legislature passed in 1866 under the name of “ The Sisters of the Poor of St. Francis.” The abject of the corporation was for the gratuitous -care, of the sick, aged, infirm and poor, and. for that purpose the corporation maintained a hospital in the city of Hew York known as St. Francis’ 'Hospital, which was a charitable institution for the relief of the suffering poor.

Upon the trial it was admitted that at the time of the death of the testator there was not, is not now and never was any body corporate, person or persons or legal entity known as St. Francis’. Hospital, but that St. Francis’ Hospital is a public institution under the charge of and maintained by -the defendant, the Sisters of the Poor of St. Francis, a corporation organized and existing under the provisions of chapter 201 of the Laws of 1866, and that said corporation maintains a hospital in the city of Hew York known as St. Francis’ Hospital, and is the only one of that name. .

Upon that concession it is quite clear that the testator intended this'bequest to the corporation known as the Sisters of the Poor of St. Francis, as .they are the ones who maintained this hospital, and they fairly come within the description of the. will as the trustees of the hospital; but the court found as a fact that the object of the testator’s bounty in the 3d paragraph of his will was not within the corporate purposes and powers, or any of them, of the defendant, the Sisters of the Poor of St. Francis, and there never was and is not now a “Blessed Virgin Hary Purgatorial Fund” maintained by the defendant, the Sisters of the Poor of St. Francis, or by said hospital; that the only possible object of a purgatorial fund is the saying of masses for the spiritual welfare of the souls of the dead in purgatory, and, as a conclusion of law, that the devise or bequest in the 3d paragraph of the will of three equal fourths of the net proceeds of the sale of all the testator’s real estate, situate, lying and being in the State of Hew York, being the lands and premises described in the fourteenth finding of fact, to the trustees of St. Francis’ Hospital in the city of Hew York for the benefit and use of the Blessed Virgin Mary Purgatorial Fund of said hospital is invalid and void, and upon the judgment entered upon this decision the Sisters of the Poor of St. Francis’ Hospital appeal.

There was under the provisions of this will ah equitable conversion of the real property of the testator. The bequest to this hospital was three-fourths of the proceeds ■ upon the sale of this property which the executors were directed to ■ make, and in determining the question- of the, validity’ of this disposition of- the testator’s property it should be treated as a bequest of personalty. The testator, therefore, has bequeathed a. portion of his estate to trustees of a hospital maintained in the city of New York as a charitable institution for the benefit of the poor, coupled with the provision that this bequest is for the benefit and use., of the Blessed Virgin Mary-Purgatorial Fund, .no such fund being in existence. It is conceded that the testator intended to benefit this corporation, who organized and maintained the hospital, and his direction that the bequest should- go’ to the trustees of the hospital would be complied with by paying it to the corporation organized for the gratuitous cure of the sick, aged, infirm and poor, which had, to carry out that object of its incorporation* established a hospital known as the Hospital of St. Francis. -The learned trial judge, however, was of the opinion that because-there was coupled with this gift, which was absolute in form and valid upon its face, the provision that it Was for the benefit and use of the Blessed Virgin Mary Purgatorial Fund of said hospital, the gift was invalidated. We must not forget. that in considering a will We are to give force- to the intention of the testator, and if that, intention can be ascertained from the instrument itself, effect, should be given to it, unless it violates some ’ legal rule. (Crozier v. Bray, 120 N. Y. 366.) It is -quite clear that it was the primary indention of -this testator, to give to the trustees or persons maintaining this hospital a portion of his estate* and the question that is presented is whether this -intention is to be defeated because he has added to the gift a proviso that the provision was for the benefit of a,.particular fund'which'he apparently supposed was maintained by those who maintained the hospital. It appeared by the testimony of the secretary of the corporation that it conducted a hospital known as St. Francis’ Hospital; that there was a chapel -connected with said hospital in which there were devotions several times a day; that there was a morning mass; that the sisters' say the office at various times of the day, and -there áre always public devotions in winch prayers are said for the poor. souls in purgatory. There was thus maintained a chapel in which-there ..Were daily religious services, conducted in accordance with the beliefs of the church with which these sisters Were affiliated, for the:- souls of the dead, maintained by the sisters as a part of the hospital that they organized and maintained to carry out the purposes for which they were incorporated, the gratuitous care of-the sick, aged, infirm and poor.

Considering the belief of the church with which these sisters were affiliated, I do not think we can say that the organization and maintenance of a "chapel for the benefit of the souls. of those who come under their care wa§ not within the object for which the corporation was incorporated. - T.lie gratuitous care of the sick, aged, infirm and poor might well involve religious services for their benefit, either before or after death; and where a body of religious persons, with a belief in the - efficacy of religious ceremonies and observances for the amelioration of the condition of -the poor and helpless, maintains a chapel in which is conducted religious services for the benefit of those in their charge, such services may well come within the definition of the gratuitous care for the sick, aged, infirm and poor. That this corporation was incorporated for purely charitable purposes is conceded, and that the lives of those connected with it .are devoted to th '■ purpose "was apparently known to the testator, and he wished to aid, so far as in his power, the members of this corporation in the work to which they had devoted their lives; He evid ntlv believed in the efficacy of those religious observances as a benefit to those for whom they were celebrated, and it was his intention that this, portion of his property should be .devoted to that purpose. To sustain this as a bequest to this corporation will accomplish this object, and I think it would be extremely unfortunate if the court should be compelled to frustrate this intention because of the form used in the bequest.

It is a well-settled principle that where there is a bequest or devise to an individual sufficient to vest the bequest in the legatee a subsequent provision will not cut down that bequest or devise, unless such an intention is clearly expressed. (Clarke v. Leupp, 88 N. Y. 228.) In the will before the court in that case there was a bequest to the testator’s wife of all his property, real and personal, "and his wife was appointed sole executrix “ to take charge of my property after my death, and retain or dispose of the same for the benefit of herself and children above named; ” and it was held that the entire estate vested in his wife upon the testator’s death, the court saying: “ It is well settled by a long succession of well-considered cases that when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be.restricted or cnt down to any less estate by subsequent or ambiguous words, inferential in their intent.” In Clay v. Wood (153 N. Y. 134) it is said: “ Where there is an absolute gift of real or personal property, in order to qualify it, or to cut it down, the latter part of the will should show an equally clear intention to do so, by the use of words definite in their meaning, and by express sions which must be regarded as imperative. * *■ * Whether the precatory words in a will shall be accorded such force as to deprive the donee of the absolute right of disposal, and, thereby, qualify the beneficial interest in the gift, must be determined in, connection with what may be gathered from the rest of the will as an intention which would be reconcilable with the idea of a trust' imposed upon the legal estate. Where to impose such a trust would be to nullify previous expressions in the will and to create a repugnancy between its different parts, then the rules of construction forbid- the attempt.” In Chamberlain v. Chamberlain (43 N. Y. 424) it was held that a bequest, although in terms to the trustee of a corporation, is in legal effect a gift to the corporation vesting the legacy in the corporate body. In that case the bequest was to the trustees of Chamberlain Institute to be by such trustees permanently invested in bond and mortgage, the principal to be kept permanently .invested and the interest and income thereof to be used in the payment of teachers and the purchase of books for a library institution; but the court held that this bequest was for the benefit of this institution, and was in legal effect a gift to the co'rporation vesting the legacy in the corporate body; and this same rule was applied by the ' General Term in the .fifth department. (Matter of Strickland's Estate, 17 N. Y. Supp. 304.) It has been definitely settled in this State that there is nothing illegal in a testator making provision for masses to be said for the repose of the soul after death (Gilman v. McArdle, 99 N. Y. 451); and a bequest being to a corporation competent to take, there being a defined beneficiary, there is nothing in this will,-as I view it, which creates a trust or which limits the power of the beneficiary in the use of the money after if is received. In Holland v. Alcock (108 N. Y. 312), where it was- held that the absence of a defined beneficiary was a fatal objection to an attempt to create a trust for the purposes of prayer offered in a Homan Catholic church for the repose of the testator’s soul and the souls of his family, and the souls of all others who might be in purgatory, it seems to have been recognized that such a bequest would be valid if to an incorporated church so as to entitle it to claim the fund.

My view, therefore, is that there was here a bequest of personal property to a defined beneficiary to be used for the purposes for which it was incorporated, and that as there was nothing in the will • sufficient to cut down or limit the bequest, it is valid; and that the judgment appealed from should therefore be reversed, and a decree entered upholding the bequest and directing that it be paid to the defendant, the Sisters of the Poor of St. Francis, with costs to the plaintiff and to the appellant to be paid out of the estate.

O’Brien, P. J., concurred.

Judgment affirmed, with costs to the respondents payable out of the estate. 
      
      
        Le Couteulx v. City of Buffalo.— [Rep.
     