
    American Bible Soc. et al. v. American Colonization Soc. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    Wills—Construction—Description oe Legatees.
    0 Under a will bequeathing property to various named associations, describing them as “all of or in the city of New York, ” a bequest to the American Colonization Society passed to the national organization of that name, instead of to the New York branch thereof, the latter not being incorporated at the time of the testatrix’s death, and it appearing that it was the mere agent of the former in New York, and there being no dispute as to the capacity of the national society to take the bequest.
    Appeal from special term, Hew York county.
    Action to construe the will of Sarah Bunce, deceased. The special term entered judgment denying the American Colonization Society the right to recover a portion of the estate of testatrix, and that society appeals. The facts requisite to an understanding of the case are as follows: Sarah Bunce died in 1851, leaving a will dated July 16, 1833, and a codicil thereto dated October 18, 1849. The material part of the codicil upon which the question in this case arises is as follows: “Sixthly. I give to my beloved niece Sarah B„ Munsell and her husband, Henry H. Munsell, for their joint lives my house- , and lot Ho. 18 (eighteen) Tenth Street. On their death I direct the same to be sold by any trustee or other person to be appointed by the proper tribunal in the state of Hew York, and the proceeds divided evenly among the following-societies, to wit: The American Bible Society; the American Tract Society;; the Hew York Seamen’s Friend Society; and the American Colonization Society,—all of or in the city of Hew York. Lastly. I direct that no- legacy or devise shall fail by reason of any mistake or change in name or want of incorporation of any society, by their incapacity to take by devise or other-defect, but in such event shall remain with my executor to be applied to-similar use at his arbitrary discretion. ”
    Argued before Van Brunt, F. J., and Bartlett and Macomber, JJ.
    
      Theron G. Strong and F. Mathewson, for appellant. William H. Haldane for respondents.
   Macomber, J.

It is conceded on all sides that each of the is: entitled to recover one-fourth of the-proceeds to be derived by the sale of the premises mentioned in the codicil and described in the complaint. It will be observed that it is not the Hew York Seamen’s Friend Society named in the codicil, which is one of the plaintiffs, but the American Seamen’s Friend Society. Yet it was so obvious that the intention of the testatrix was that pne-fourth of this part of her estate should go to the society represented by that plaintiff that no question has been raised in regard thereto. The right of the appellant the American Colonization Society to the remaining one-fourth is contested by the other defendants, who are the next of kin of the testatrix, upon the ground that the appellant is not the beneficiary designated by the codicil. The American Colonization Society existed as an unincorporated institution from about the year 1816 to 1831, when, by an act passed at that time, and by an amendatory act of 1837, it was incorporated by the legislature of the state of Maryland. It has always been known as a national organization, having auxiliaries in nearly all, if not all, of the states of the Union, with head-quarters at Washington, D. C. It never has been known by any other name than the American Colonization Society. There is no dispute or question made in regard to the identity of this particular corporation which asks for this portion of the estate of the deceased. Its identity is as distinctly established as that of either of the counsel in this case. Why, then, the question arises, did the trial court refuse to award a portion of the decedent’s estate to it? If its judgment can be maintained at all, it must be upon the statement of the learned judge at the special term, who says: “It is quite obvious that the testatrix intended that the bequest should not be to the appellant the American Colonization Society, but to the society which was organized in the state of New York as an auxiliary society. There was a New York State Colonization Society, which existed as an unincorporated institution long before, and for six years after, the execution of the codicil of the testatrix, and which was finally organized under that name by an act of the legislature of New York, (Laws 1855, p. 376.) The last-named society was, of course, at the time of the writing of the codicil, incapable of taking the legacy, because it was not incorporated, and consequently had no legal existence. Nor was it incorporated afterwards until after the death of the testatrix. In the case of Shipman v. Rollins, 98 N. Y. 311, the legatee was incorporated intermediate the making of the will and the death of the testator, and because it had a legal existence at the time the will took effect, as was contemplated by the testator, the court permitted the legatee to hold the bequest. But resort cannot be had to that principle in this case, for the state society was not incorporated until 1855, four years after the death of Mrs. Bunce.

No argument is presented by the respondents denying the appellant’s ability to take and hold bequests, but the contention in their behalf is simply that it is not the party designated in the will. It is to be observed that the expression “all of or in the city of New York” is in no sense a part of the name of either of the corporations named in the instrument. Had the codicil said “the American Colonization Society of the city of New York” some reasonable ground would be afforded for the position taken by the counsel for the next of kin of the testatrix. Generally the designation of a corporation as being of a certain place constitutes a part of its legal' name for the transaction of business, but in this instance there is no designation of the American Colonization Society as being of the city of New York. The expression used “ all of or in the city of New York” is in the alternative, meaning the corporation either existing by law, with head-quarters at the city of New York, or, having its head-quarters elsewhere, with a place of business in the city of New York, conducted by agents or otherwise. But was not the appellant in every material sense in the city of New York, within the meaning of the term which was evidently in the mind of the testatrix? It was established by the evidence without dispute that the New York Colonization Society, both before and after incorporation, was a mere hand or means to enable the parent society, the American Colonization Society, to carry on its business, which was the colonization of free colored persons upon the coast of Africa. It is shown that the agents of the American Colonization Society organized the local society of the state of New York. Nearly all of the expeditions carrying emigrants to Liberia sailed from the port of New York. All of the moneys collected by the New York Colonization Society were forwarded to the American Colonization Society at Washington, and expended by that corporation, and none of them were disbursed by the local or auxiliary society in the city of New York. Such, also, was the practice in other, if not all, of the states of the Union. As the chief witness in the case says, the state organizations, whether incorporated or otherwise, were but the hand or agent by which the parent society conducted its work. Each of the state societies had representation under rules established by the American Colonization Society, fixed at the rate of one delegate to the annual conventions for every sum of $500 subscribed in the particular state. It is further shown that, at the annual meeting held within a few months after the date of the codicil, 7 of the 65 vice-presidents of the parent society were residents of the city of New York. Such, presumably, was the proportionate interest taken in the general work of the parent society by the city and by the state of New York prior to the execution of the codicil; for at the annual meeting, in January, 1851, in the absence of Henry Clay, the president of the society, Anson G. Phelps, of New York, was called to the chair, being described as the oldest vice-president of the society. We have not before us the proceedings of the main office at Washington prior to the date of the codicil, but if just inferences may be drawn from these and other proceedings of the annual conventions it would appear that many prominent and active humanitarians resident in the city of New York were deeply concerned for the welfare of the parent society, which fact was doubtless known to the testatrix. Hence it is that, if the parent society were obliged to show that it was in a literal sense in the city of New York, we think the evidence <was sufficient to warrant the testatrix’s use of that expression as a matter of description of the object of her bounty. But it is not necessary to put our decision upon that ground. It is sufficient that the appellant appears as the accurately-described person named in the will, and is capable of taking the bequest, and that there is in point of fact no question .arising as to whom the testatrix intended to designate as her legatee. Any different conclusion would be to assume that the testatrix did not mean what she wrote and to impart into the codicil an intention which is not only foreign to its entire scope and particular purpose, but which even does violence to its plain reading, and this, too, for the purpose not of upholding, but of defeating, the legacy. This is not construing, but destroying, the will. Indeed, so definite is the person of the legatee, and so perspicuous and unmistakable the gift, that.the case is hardly one which requires the court to construe the instrument in the ordinary meaning of the phrase. The error of the learned judge at the trial seems to be that the intended beneficiary was one which must have a legal residence in the city of New York; but in cases of mere misdescription of residence alone the legacies do not fail where the person intended is definite and certain. Lefevre v. Lefevre, 59 N. Y. 434; St. Luke's Some v. Association, 52 N. Y. 191. To this extent the judgment should be reversed, and the judgment modified so as to permit the appellant to "take its share of the estate, with costs against the defendants Lemuel B. Stanton and others, except the infant defendants.

Van Brunt, P. J., concurs.

Bartlett, J., took no part in the decision of this case.  