
    James Cruikshank, App’lt and Resp’t, v. Julia A. Chase, etc., App’lt and Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Will—Construction of—Unlawful suspension of alienation.
    The testator’s primary purpose was, to found and by his will endow an.institution to be denominated the Delaplaine Home for the ¡Friendless. To-accomplish his purpose he directed his executors to apply for and obtain from the legislature as early as practicable an act of incorporation, and that it be obtained before the expiration of ten years from his decease. Held, that the devise was invalid. That it suspended alienation for a. period measured by years and not by lives in being, during which time-there would he no persons in existence by whom an absolute estate in possession could he conveyed.
    2. Same—Statute against suspension of absolute ownership of prop-
    erty applies to personal property.
    The doctrine that personal property is not within the statute regulating-trusts does not reach or affect the prohibition of the statute against a suspension of the absolute ownership of personal property for more than two-lives.
    3. Same—Effect of power of sale, as to land.
    A power of sale given by the will does not avoid the statute when the-resultant proceeds wear the same fetters as restrained the alienation of the-land.
    
      4. Same—When alternate devise vested.
    The testator provided an alternative or substituted devise and bequest of' the same residue to a number of existing charitable corporations which he-named “in the event that this bequest and devise of my residuary estate-should he adjudged or prove invalid, or its execution he impossible, either-by judicial decision or from any other cause.” Held, that the testator-meant that if his devise to the i on-existent corporation was void, the alternative gifts should vest. That they so vested at his death, and eo instanti the alternative devises took effect.
    5. Same— No difference between lapsed bequests and devises—Both:
    FALL INTO RESIDUE.
    The old rule, that while lapsed bequests fall into the residue, lapsed devises do not, has been changed and now there is no difference between lapsed legacies and lapsed devises as it respects the operation upon them of a general residuary clause.
    6. Same—When rent and profits go with the legacies.
    Since in the event which happened, of the vesting of the residue in the-eleven charitable societies, there was an imperative direction for the conversion of the real estate into money and a gift of the proceeds, it followed!
    ' that the rents and profits go with the residue to the ultimate legatees.
    Appeal from a judgment of the supreme court, general' term, first department, affirming a judgment of the special, term.
    
      Lucien B. Chase, for def’t; M. H. Cardozo, for pl’ff; Austin Abbott, for residuary legatees.
    
      
       Affirming 9 N. Y. State Rep., 848.
    
   ■Finch, J.

—The testator devoted the bulk of his estate to charity. He carefully explained in his will that he left neither wife nor children; that his brother and sisters and nieces were already in comfortable, if not affluent, circumstances; and so he felt at liberty, after some moderate gifts to them, to follow “the impulses of his own heart” and his “sense of duty” by devoting the rest of his property to the rescue and help of the unfortunate. Two of his nieces, Mrs. Schiefflin and Mrs. Beekman, accepted the disposition which he made, but his sister, Mrs. Chase, in her own right and as administratrix of the deceased brother, seriously disapproves, and is now here upon appeal seeking to wrest the property from the uses of charity, and, to that end, invoking the aid of established rules of law to destroy the trust created by the will, and break through its fences into the fortune which the testator at least intended to withold.

His primary purpose was to found and endow an institution to be denominated the Delaplaine Home for the Friendless. It was to be-situated in the city of Hew York. Its object, as it existed in his mind, was indicated only by its name, and his reference to a similar institution already incorporated and doing its charitable work. He says “my desire is that the object of the same and the class of persons to be relieved and benefitted thereby should be similar to the object and to the recipients of the charity of the institution in the ■city of Hew York now know as the Home for the Friendless, my wish being to make it similarly useful.’-’ ■ To accomplish his purpose he directs his executors to apply for and obtain from the legislature as early as practicable an act of incorporation; and in a codicil to the will recommends and directs that it be obtained before- the expiration Of ten years from his decease but repeats the injunction that it be -obtained as soon as possible. There seems to have been in his mind some lurking doubt of the validity of his trust, and some fear that collaterals might covet his wealth, and so he provides an alternative or substituted devise and bequest of the same residue to a number of existing charitable corporations which he names, “in the event” as he phrases it, “ that this bequest and devise-of my residuary-estate should be adjudged or prove invalid, or its execution be impossible, either by judicial decision or from any other cause.” The courts below have held that the gift to the corporation to be created is invalid because it suspends the absolute power of alienation beyond the statutory limit, and from that determination the executors have appealed. Those courts also decided that the substituted bequest to the charitable societies named was valid, and from that decision Mrs. Chase appeals. Two questions are therefore presented for "our consideration. . .

First. Can the gift to the unincorporated and non-existing institution be sustained ? It is quite apparent that the testator expected and the will contemplated a delay before vesting in the intended beneficiary long enough to enable it to come into being through the consent of the sovereign, and which, by possibility, might extend to a period of ten years. Such incorporation was dependent upon the will of the legislature. Its consent could reasonably be anticipated, but was not at all certain. Eleven existing corporations, more or less useful and influential, were to take the property if a charter should be withheld, and under their possible pressure and argument the legislature might think that the interest of the state would be better subserved by the strengthening of existing institutions which had passed beyond the stage of experiment than by the creation of a new one, more especially when a Home for the Friendless already existed. It might be argued that under the will a. choice of alternatives was fairly left to the state, which it might make by granting or refusing a charter to the proposed institution. The delay contemplated was not incidental merely to a result certain and possible, as in Robert v. Corning (89 N. Y., 225) where it was the time reasonably needed for a conversion in the ordinary manner, but-contingent upon the uncertain action of the state which might not take place at all, and leave a period of ten years ■ during which the power of alienation would be suspended. It is not material to .consider where the fee would lodge in the interim, whether in the executors by force of an-express or implied trust, or in the heirs by descent subject to be divested by the happening of the contingency. In either case there was contemplated a period measured by years and not by lives in being, during which there would’ be no persons in existence by whom an absolute estate in. possession could be conveyed. The authorities fully and clearly determine the invalidity of such a limitation. In Bascom v. Albertson (34 N. Y., 584) the gift was to such persons in Vermont as might be appointed by the supreme court of that state as trustees of an institution to be located, at Middlebury for the education of females. Beyond a criticism upon the uncertainty of the object, the court held that the bequest was void because it was contingent and. executory and involved an illegal suspension of the ownership of the fund. To a similar effect are Leonard v. Burr (18 N. Y., 107), in which the gift was to the village of Grioversvilíe, when it should be incorporated, for a public library; Phelps v. Pond (23 id., 69), wher.e the bequest was-for a college to be founded in Liberia; Beekman v. Bonsor (23 id., 306), in which an effort was made to found a dispensary; and Rose v. The Rose Benevolent Association (4 Abb. Ct. of Appeals, 108). One vice in all these cases was that by force of the limitations created the ownership was left swinging in abeyance,” doubtful of its direction and ultimate resting place, and this for a period longer or shorter and not measured by lives in being. Where that limit of suspension was provided, the trust escaped condemnation; as in Shipman v. Rollins (98 N. Y., 311) where the gift was to vest or fail at the end of the one life of the widow; and in Burrill v. Boardman (43 id., 254) where a hospital was to be incorporated, but within the two lives of a nephew named and the youngest of the executors.

It does not save the gift that in the present case a Home for the Friendless could have been incorporated under the' general law, for such a corporation the testator did not intend or direct, but specifically required that his donee should be a corporation formed under a special charter. The restrictions in the general law made it inappropriate to-the testator’s design, but, whether so or not, we cannot substitute for his explicit direction something other and different and outside of his expressed purpose.

Nor does it help the situation to say that there was an equitable conversion resulting from the power of sale which, though discretionary, was claimed to be essential to the scope and plan of the will, and that the property treated as personal was not within the statute regulating trusts, as. was held in Gilman v. McArdle (99 N. Y., 451). That, doctrine does not reach or affect the prohibition of the statute against a suspension of the absolute ownership of personal property for more than two lives, and a power of sale does not avoid the statute when the resultant proceeds wear the same fetters as restrained the alienation of the land. In Bascom v. Albertson (supra), the whole residue covered by the bequest was of personal assets in this state* and if in the present case, the land be deemed money, the fundamental difficulty is not removed. I can discover no permissible escape from the conclusion that the primary devise for a new Home for the Friendless was invalid.

■Second. The next question respects the consequences of that conclusion. One would suppose, as the courts below have decided, that the alternative and substituted devises and bequests to the eleven charitable corporations would vest at the death of the testator; but in behalf of Mrs. Chase, it is argued that a suspension was contemplated: until_ the final judgment of the court, declaring the invalidity of the primary devise. I think we may make short work of that proposition.

The judgment of the court does not make or create the invalidity; it declares its existence at the date of the testator’s death, and eo instanti the alternative devises took ■effect. The testator’s reference "to a judicial decision is accompanied by the expression as to his primary devise “if it shall .prove invalid; ” that is if it shall turn out invalid, or shall be ineffective. His use of the word “ then” is in the sense of in that event, and his obvious meaning, which no refinement of criticism can obscure, is that if his devise to the non-existent corporation be void, the alternative gifts shall vest. They so vested at his death, Our judgment merely ascertains that fact and settles it, but it existed before our decree, and at the instant of the testator’s decease. No question is here raised as to the capacity of the eleven corporations to take.

Third. But a third question, of a minor character as to the amount involved, is presented for our determination. By the codicil to his will the testator gave to his sister, Emily L. Fuller, two lots of land to be held by her in fee simple. She died in testator’s life-time, and the old rule that while lapsed bequests fall into the residue, lapsed devises do not, but go to the heir as undisposed of by the will, is invoked to carry the land to the heirs and take it from the charities.

I think that rule must be regarded as changed, and that there is now no reason for difference and so no difference between lapsed legacies and lapsed devises as it respects the operation upon them of a general residuary clause. Among the numerous reasons which have been assigned for the common law rule, some of which were always artificial .and unsatisfactory, the principal and most sensible one is well-stated by Learned, J., in Hillis v. Hillis (16 Hun, 76), and by Grover, J,, in Youngs v. Youngs (45 N. Y., 254). That reason was that the right to dispose of land by will, when regained after its loss, came in the form of a right to ■dispose of uses, and, since the appointment of uses was a present act, the power to devise was held to apply at the date of the will or of the disposing act, and so the residuary clause would cover neither lapsed devises nor after acquired .lands. This reason wholly disappeared when our statute made the will speak from the testator’s death both as to real and personal property. It provides that where a testator in express terms devises all his real property or indicates liis intent to dispose of it all, the will shall be construed to ■pass all which he was entitled to devise at the time of his death. 2 R. S., 57, § 5.

As I read the case of Youngs v. Youngs, the lapsed devise was carried to the residue upon two grounds: one, that the rule as to lapsed devises, had become the same as to lapsed legacies, and the other, that a contingent remainder framed by the will was wholly undisposed of unless covered by the devise of the residue. The same opinion as to a change in the rule is expressed in Hillis v. Hillis, though it was deemed not essential to the result finally reached. The subject came under discussion in the courts of Massachusetts after an enactment similar to our own, and resulted in a conclusion which put lapsed devises upon a footing identical with lapsed legacies. Thayer v. Wellington, 9 Allen 283. I think that must be regarded as the correct rule applicable to a general residuary clause which is not narrowed or restricted by the terms of its own construction. The testator in the present case clearly expressed his intention to pass all his property, and that nothing additional should pass to his heirs beyond what he had effectually given them. He explains his reasons for that: speaks of an intended disposition of “the remainder” of his property; and then formally devises and bequeaths to his executors all the rest, residue and remainder of his estate both real and personal in trust. I think we should hold that the lapsed devise fell into the residue.

Since in the event which has happened of the vesting of the residue in the eleven charitable societies there was an imperative direction for the conversion of the real estate into money and a gift of the proceeds, it follows that the rents and profits go with the residue to the ultimate legatees. Lent v. Howard, 89 N. Y., 169.

The judgement should be affirmed, with costs to all parties payable out of the estate.

All concur.  