
    The Farmers’ Loan & Trust Company, Plaintiff, v. John W. A. Shaw et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1907.)
    Powers — Construction and execution of powers — Relation back on execution to instrument of creation; Execution of general power of appointment — Appointment of corporations.
    Suspension of power of alienation — Effect of separability of estates — Separate trusts for more than two lives.
    Charities: Requisites and validity in general — Precatory character of gift; Statutory restrictions as to gifts — Restriction as to proportion of donor’s estate — Not applicable to application of power.
    Foreign corporations — Powers, duties, rights and liabilities — Right to acquire and hold property.
    Where a residuary estate "is given to plaintiff in trust to invest and pay the net income for life to A. and, upon her decease, to dispose of, convey and pass over the estate, or so much thereof as may then remain, to be held upon a trust to such persons and in such manner as A. shall have directed and appointed by her last will and testament and, in default of • such will, upon the further trust to convey, pass over and distribute, to the same person or persons and in the same shares and proportions as if testatrix then died intestate, there is given a general power of appointment in A. without limitation which,' in determining its effect, must be read as though it had been incorporated in the original will.
    A., who died in 1905, left a last will and testament under which the trustee of said residuary estate was appointed executor, and by which A. exercised the power of appointment and disposed of the whole estate. She owned no real property and her personal property was insufficient to pay her debts, and a transfer tax was fixed upon the property of testatrix which passed under the will of A. In an action by the trustee of the testatrix for the construction of the original will, held:
    It was clearly the intent of the testatrix to give to A. an unlimited power of appointment and the clause “ to such persons and in such manner as she ■* * * shall have directed ” was not limited to natural persons but included a foreign charitable corporation.
    The creation of two separate trust funds, each for the benefit of two defendants in said action, both of whom were conceded to have been in - being at the time of the death of testatrix, one of whom was the mother of A. and the other a beneficiary under the original will, was valid; and the power of alienation was not unlawfully suspended.
    Gifts of the remainder of said trust funds, after the death of the life tenants, to a foreign charitable corporation were not void as being trusts not authorized by the statutes of this State, there being nothing in the will to indicate that the foreign charitable corporation was not to become absolute owner of the residuary funds, although there was in the will an expression of the desire of the testatrix as to the use to which said funds should be put.
    The fact that a statute (L. 1894, ch. 136) providing that “any foreign corporation * * * may take by devise any real estate within this State and hold the same for not exceeding five years * * * from the time when the right to possession thereof passed into such devisee and convey it by deed or otherwise in the same manner as a domestic corporation” was in effect at the time of the death of. A., in 1905, and that the possession of the real property in question was then in the plaintiff as trustee, effectually disposed of a contention that the foreign charitable corporation was not competent to hold real estate.
    The statute (L. 1860, ch. 360) which prohibits the disposition of more than one-half of an estate under certain conditions to charitable and benevolent institutions could not be invoked by the surviving husband of A., as she was not disposing of her own property but of the property of the testatrix under a power of appointment.
    Upon stating the account of plaintiff as trustee under the first will, there should be turned over to him an amount sufficient to pay the debts of A., the transfer tax passing under her will, expenses of administration to plaintiff as executor; and the judgment should provide for distribution of the balance as directed by her will.
    Action for the construction of a will.
    Turner, Ralston & Horan, for plaintiff.
    A. C. Cowan, for defendants.
   Bischoff, J.

Hnder the will of Catharine Ann Ten Eyck, so far as material to be considered, testatrix gave her residuary estate to plaintiff in trust to invest and pay over the net income during life to Mary E. Shaw, and in trust upon the decease of Mary E. Shaw to dispose of, convey and pass over all and singular the said trust estate, or so much thereof as may then remain, and to be held upon trusts herein declared, to such person or persons, and in such manner as she, the said Mary E. Shaw, shall have directed and appointed by any last will and testament duly executed by her, and in default of such will, or as to any of the trust property not disposed of by such will, upon the further trust to convey, pass over and distribute the said trust estate, or so much thereof as may then remain, to the same person or persons, and in the same shares and proportions as the law of the State -of Hew York would designate, appoint and regulate had I then died intestate, and to his, her or their respective heirs, executors, administrators and assigns forever.” Cathári'ne Ann Ten Eyck died leaving certain of the defendants who would come within the clause to take in case of Mary E. Show’s failure to exercise the power of appointment given her and hereinabove quoted, and to whom the former gave life legacies under her will. The plaintiff, as trustee, received from the executors of Catharine Ann Ten Eyck both personal and real property., Mary E. Shaw died about March 10, 1905, leaving her last will and testament under which plaintiff was appointed executor, and which was admitted to probate in Hew York county, and under which plaintiff has qualified. -She owned no real property, and her personal property was less in amount than debts due from her. A transfer tax of $2,274.69 was fixed upon the property of Catharine Arm Ten Eyck which passed under the will of Mary E. Shaw. Under her will Mary E. Shaw exercised the power of appointment given her, and disposed of the whole estate over which she had authority. The principal controversy is raised by the contention of certain of the defendants who would take under the will of Catharine Ann Ten Eyck and the Statute of Distribution, provided the will of Mary E. Shaw does not pass, by virtue of the power given her, the remainder of the estate of the testatrix, and largely to determine as to whom plaintiff should distribute and pay over such residuary estate this action has been brought. In the absence of any statutory limitation of the power, it is clear that the language of the will of Catharine Ann Ten Eyck must be given its plain and ordinary meaning, and that such leaves it open to Mary E. Shaw to direct the transfer of any part or all of the fund referred to in the quoted paragraph of Catharine-Ann Ten Eyck’s will, upon the decease of said Mary E. Shaw to dispose of, convey and pass over all and singular the said trust estate, or so much thereof as may then remain, and to be held upon the trust herein declared to such person or persons, and in such manner as she, the said Mary E. Shaw, shall have directed and appointed by any last will and testament duly executed by her,” is plain, clear and in no way ambiguous. This appointment must be read in determining its effect as though it had been incorporated in the original will," the rule being that “ the question of the validity of an appointment is to be determined by reading it as though contained in the original instrument conferring the power of appointment.” ' Maitland v. Baldwin, 70 Hun, 267-272. There does not seem to be the slightest indication, so reading the original will and that of Mary E. Shaw, of an intention on the part of Catharine Ann Ten Eyck to limit this power of appointment to her heirs at law and next of kin. She did, it is true, provide for her heirs at law and next of-kin in the contingency of the nonexercise of the power of appointment by will, or as to any of the trust property not disposed of by such will, ,and, indeed, expressly said that “ in default of such will, or as to any of the trust property not disposed of by such will ” the property should be held upon the further trust to convey, pass over and distribute to the certain heirs at law and next of kin or class as therein specified. It was, therefore, a general power of appointment without limitation: Cutting v. Cutting, 86 N. Y. 522. The intent of the testatrix, Catharine Ann Ten Eyck, to give this unlimited power of appointment to Mary E. Shaw is so clear in view of the language used that the citation of further authorities seems needless, particularly under the well settled rule that effect must be given to the clear intent of a testator as indicated by the language used. The contention that the residuary property could be paid over only to natural persons who were nominated as remaindermen by Mary E. Shaw also seems to be entirely disposed of by the language of the fourth clause of the will of Catharine Ann Ten Eyck, which says, “ to such person or persons, and in such manner as she, the said Mary E. Shaw, shall have directed,” and which can have no limitation to natural persons only in the absence of language expressly so limiting the meaning of the word “ person.” Matter of Fox, 52 N. Y. 530; Pembina Mining Co. v. Pennsylvania, 125 U. S. 189. In the last case cited it is said: “ Under the designation of person there is no doubt that a private corporation is included. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution. As said by Chief Justice Marshall, ‘the great object of a corporation is to bestow the character and properties of individuality on a collective and changing body of men,’ ” citing Providence Bank v. Billings, 4 Pet. 514. The testatrix, Catharine Ann Ten Eyck, created two separate trust funds

of the sum of $10,000 each for the benefit of the defendants Annie Johnson and Sarah Porter, both of whom were conceded to have been in being at the time of the death of Catharine Ann Ten Eyck, one of whom was the mother of Mary E. Shaw, and the other a beneficiary under the Ten Eyck will. These dispositions were valid under the statutes, and the power of alienation was not suspended beyond the statutory period computed from the time of the death of Catharine Anri Ten Eyck, that is, for a longer period than 'during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition, or, as in the case at bar, for not more than two lives in being at the death of the testatrix. 1 E. S. 773, §§ 1, 2; Real Prop. Law, § 158; Hillen v. Iselin, 144 N. Y. 365. The contention that the gifts of remainders after the life estate of Mary Johnson and Sarah Porter to the Tuskegee ISTormaTand Industrial Institute" are void as being trusts not authorized by the statutes of this State seems to have" no merit. The gifts to the Tuskegee Institute of the two remainders, one of $5,000 and the other of $10,000, are by the terms of the will absolute gifts, and without qualification. There is nothing to indicate by the terms of the will that the Tuskegee Institute was not to become the absolute owner of these residuary funds. It is true that a clause in the will relates to treating this fund as a memorial to Ethel Shaw, and to its use as a scholarship fund, but such can be considered as nothing more than the expression of the desire on testatrix’s part as to the use to which such money was to be put, and it does not in any way limit or qualify the absolute gift. Raney v. Lange, 58 Barb. 453; Matter of Zimmerman, 84 N. Y. St. Repr. 395. This gift being absolute, the contention that the institute is not authorized to take the property for any such limited purpose falls, as well as the question raised that if male students are entitled to attend the institute the limitation of the use of such property to female students renders the bequest void. The fact that chapter 136 of the Laws of 1894, which provides that any foreign corporation * * * may tajee by devise any real property situated within this State and hold the same for not exceeding five years * * * from the time when the right to possession thereof passed into such devisee and convey it by deed or otherwise in the same manner as a domestic corporation ” was in effect at the time of the death of Mary E. Shaw, and that the possession of the real property in question herein was then in the Farmers’ Loan & Trust Company, as trustee, effectually disposes of the contention that the Tuslcegee Institute was not competent to hold real estate because it was a foreign corporation. It certainly cannot by any rule of construction be claimed that the Tuskegee Institute took any interest or estate, either present or by way of remainder, in this property until after the act of 1894 had gone into effect, as it took by virtue of the will of Mary E. Shaw, and Mary E. Shaw died in 1905. Matter of Stewart, 131 N. Y. 274; Richards v. Hartshorn, 110 App. Div. 650. Mary E. Shaw’s husband, whom she left surviving, has no right to invoke to his advantage chapter 360 of the Laws of 1860, which prohibits the disposition of more than one-half of an estate -under certain conditions to charitable and benevolent institutions, Mary E. Shaw not disposing of her property, and the statute in question could have no application to her applying the power of appointment given to her under the will of Catharine Ann Ten Eyck. The statute invoked provides that ls no person having a husband * * *' shall by * * * her last will * * * devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, 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 one-half and no more.” Mary E. Shaw was not disposing of her property, but was by her power of appointment disposing of the property of Catharine Ann Ten Eyck. The object of this statute undoubtedly is to protect the persons who would be the natural recipients of the bounty of the testators and would benefit by an intestacy on the part thereof, and hence can have no application .to the ease of an exercise of a power such as was given to Mary E. Shaw. The mere fact that Mary E. Shaw had this power of appointment- over the property gave her no estate therein. She was not the owner of the property and could convey the fee only in the exercise of the power given by the will. Dana v. Murray,, 122 N. Y. 604; Fells v. Lynch, 8 Bosw. 465. Mo other question presented by defendants requires serious consideration, and findings should be submitted providing for a referee to take and state the account of plaintiff as trustee under the last will and testament of Catharine Ann Ten Eyck in the usual form, and for turning over to the plaintiff an amount sufficient to pay the debts of Mary E. Shaw, the transfer tax upon the amounts passing under her will, and sufficient to pay the expense of the administration of the estate of Mary E. Shaw to the Farmers’ Loan & Trust Company as executor of the last will and testament of Mary E. Shaw, -and providing for the distribution of the balance of the funds as directed in the last will and testament of Mary E. Shaw.

Judgment accordingly.  