
    Thomas D. Cottman as Ex’r, etc., v. William R. Grace and others.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 28, 1886.)
    
    1. Will—Construction of—Trusts—Perpetuities.
    The testator designed by the appropriation of the bulk of his estate to create a library to be located in the city of New York, under the designation of the Mcllvaine Library. And as the initiative of that design, he gave, by the first clause of his will, his library, collection of books, etc., to the mayor of the city of New York, the president of the New York Academy of Medicine and the president of the College of Physicians and > Surgeons of New York, and their successors, to have and to hold the same' in trust forever for the purpose suggested, and he nominated these persons and their successors his trustees for the purpose of locating and establishing the library in a building to be provided by them for that purpose. By the second clause of his will he directed the payment of certain annuities, and then provided that all the rest, remainder and residue of the proceeds of his real and personal estate (which he directed his executor to sell) should be paid to the trustees named in the first paragraph of his will, for the establishment, maintenance, improvement and perpetuation of the library. And he further directed that the trustees should invest the proceeds so to be paid to them, in the purchase or rental of suitable accommodations for the library, and to use and devote the income of such investment solely for and to the establishment, maintenance, improvement and perpetuation of his library. Held, that the scheme of the will was to vest the ■ title absolutely in the trustees named, of all the property which was appropriated to its establishment, management and perpetuity, and was no violation of the statute against perpetuities.
    2. Same—Trust for educational purposes—Laws 1840, chapter 318.
    A gift by testator, to the corporation of Hew York of property to be held in trust for the purposes of education, etc., which is allowed by chapter 318, Laws of 1840, is not invalidated by the addition of other persons in connection with the mayor of said city as trustees for said purpose.
    Appeal from a judgment of the special term giving construction to a will.
    
      George L. Sterling, for William R. Grace and others, app’lts; Thomas Thatcher, John A. Simpson, Sherman Evarts, Howard Mansfield, for certain heirs, resp’ts; J. A. McCreery, for the executor, app’lt.
   Brady, J.

The testator designed by the appropriation of the bulk of his estate to create a library, to be located in the city of New York, under the designation of the McIlvaine Library, which he dedicated to his father and mother as a perpetual memorial of the honor, respect, love and esteem which he had ever cherished for them and their memory. And, as the initiative of that design, he gave, by the first clause of his will, his hbrary, collection of books, pamphlets, maps, documents, papers and ah things thereunto appertaining, to the mayor of the city of New York, the president of the New York Academy of Medicine, and the president of the College of Physicians and Surgeons of New York, and their successors, to have and to hold the same in trust forever for the purpose suggested. And he nominated these persons and their successors his trustees for the purpose of locating and establishing the hbrary in a building to be provided by them for that purpose.

By the second clause of his will he directed the payment of his funeral expenses and made provision for the payment of certain annuities, and then provided that ah the rest, remainder and residue of the proceeds of his real and personal estate (which he directed his executor to sell) should be paid to the trustees named in the first paragraph of his wih, for the estabhshment, maintenance, improvement and perpetuation of the hbrary. And he further directed that the trustees should invest the proceeds so to be paid to them in the púrchase or rental of suitable accommodations for the hbrary, and to use and devote the income of such investment solely for and to the establishment, maintenance, improvement and perpetuation of his hbrary.

In the consideration of the provision of the will, the learned justice presiding in the court below thought that the testator intended to perpetuate his name by the estabhshment of a pubhc hbrary, and that its affairs were to be administered by a board of trustees which was to be in perpetuity; such trustees having been selected, not in their official characters as the representatives of the various corporations of which théy were officers, but as persons in their official characters, the provision merely serving to designate the individuals who were to act as trustees. And the learned justice says: It is conceded that such purpose would be illegal as in contravention of the statute,” and it 5s supposed he meant the statute against perpetuities.

The error of this view is suggested by the absolute gift of the books, pamphlets, maps and documents to the persons named in the first clause of the will, and also of the whole residuary estate, to be managed by them in the manner indicated, namely, by the purchase or rental of suitable accommodations for the library, and the appropriation of the income of such estate to its management. In other words, the title to the. whole estate to be employed for the hbrary, and its perpetuity is given to these trustees. The income to be employed is not to be paid over to them hy any other, and they thereby made the beneficiaries, as in the case of Adams v. Perry (43 N. Y., 487). In that case the executors were authorized and empowered to sell the residue of the estate, to invest it, and to pay to the board of trustees of the Lowville. Academy forever the annual income, which was to be devoted by .them to the care and preservation of the grounds of the academy, and to the support and maintenance of the female department. The court said in that case:

It was manifestly not the intention to give to the' Academy any control over the fund or its management by the exercise of any discretion in regard thereto.” Which is very different from the present case, because it was manifestly the intention of the testator to give absolute control. of the fund provided for" that purpose to the trustees, named by him in the first clause of the will, .not only as to its investment and the application of the income, but to the purchase or rental of suitable accommodations for his library; in other words, the scheme of the will was to vest the title absolutely in the trustees named, of all the property which was appropriated to its establishment, management, and perpetuity. It cannot be understood how any objection can be interposed successfully against the creation of such a trust.

Many questions have been considered growing out of the. will, but this view does not seem to have occurred to the Respective counsel. The only possible suggestion that may be made against the view expressed, is that the beneficiaries are not determined. But that seems to be disposed of by the case of Burrill v. Boardman (43 N. Y., 254), in which the testator bequeathed the residue of his estate to trustees, for the establishment of a hospital for the reception and relief of sick and destitute persons. Here the provision was that the library should at reasonable hours be open to. the public of all classes for their free use and consultation, without restrictions or conditions, except orderly . conduct and good behavior. That meant the public in general of the city of New York, for whose benefit the library was created.

By the statute of 1840, chap. 318, § 2, it is provided that real and personal estate may be granted and conveyed to the corporation of any city in this state, to be held in trust for the purposes of education or the diffusion of knowledge, when such conditions as may be prescribed by the grantor or donor are agreed to by the corporation; and all the real estate so granted or conveyed may be held by the same, . subject to such conditions as may be prescribed and agreed.. upon as aforesaid. If the testator had given, his property - to the mayor of New York alone and his successor, under this statute there could be no possible doubt about the validity of the gift as one to the corporation; and the addition of two persons in connection with him, when the law expressly declares it to be a gift to and for the benefit of New York, where it was to be located, and of which it was to become a part, does not seem in any way to interfere materially with this statute in spirit or in form. And this is presented as an additional- reason why the will should be upheld.

It is thought for these reasons that the judgment pronounced by the learned justice in the court below was erroneous and should be reversed, and a decree entered pronouncing the provisions in reference to the library, in accordance with the views herein expressed, to be valid, with costs, however, to all parties, to be paid out of the fund, as it is thought the appeal was justifiable and proper, and the case properly brought, indeed necessarily so.

Daniels, J., concurs.  