
    The Trustees of the Theological Seminary of Auburn v. John Kellogg, Executor, &c.
    A will, made before the Revised Statutes, devised to the testator’s daughter Chloe, her heirs and assigns forever, the residue of his estate, real and personal, which should remain after the payment of his debts, funeral charges and certain legacies; and if she should die without lawful issue, then the testator gave and bequeathed unto the Theological Seminary of Auburn the sum of $10,000, for the purpose of endowing a professorship in said seminary, to he paid to the trustees of said seminary, in fowr equal annual payments, after the death of said Chloe; Held, that these words, in reference to the time of the payment to the trustees of the seminary, so qualify the iunner Janguage as to show that the determination of the question, as to the bequest to the seminary, was to be made at the death of Chloe, and that it was the failure of issue living at the death of his daughter that the testator intended, and not an indefinite failure of issue; and, therefore, that the bequest is not void because limited upon the happening of a contingency which is too temóte.
    Nor is the legacy void because repugnant to a power, conferred by a subsequent clause in the will upon the guardian- of the testator’s daughter, to apply all or such part of the estate as he should deem necessary, to the education, maintenance and support of said daughter, during her minority. The latter provision is not an absolute disposition of the whole estate in favor of the guardian, nor does it confer upon him a power to make such disposition, otherwise than conditionally, upon the reasonable necessity of its application for that purpose. The rule which sacrifices the former of two contradictory clauses in a will, is not applied, except where they are totally irreconcilable. The gift to the seminary was therefore valid, if there was personal estate, remaining at the death of the testator’s daughter, out of which it could be paid.
    The trustees of the Auburn Theological Seminary being declared, by the charter of that institution, capable of taking and holding real and personal estate and managing the same for the purpose of benefiting the funds of the institution, and applying the avails of such funds for. the purpose of such institution, which is declared to be the education of pious young men for the gospel ministry, and such charter providing for the appointment of tutors and professors; Held, that the trustees could take a bequest for the purpose' of endowing a professorship, and, being for pious uses, that it is no objection that the bequest may create a perpetuity.
    The executor of Daniel Hyde died, leaving the funds of the testator’s estate, including more than the amount bequeathed to the plaintiffs, mingled with his own funds, and they passed, so mingled, into the hands of his executor, the defendant; Held, that the defendant was liable, after a proper demand, to an action by the plaintiffs for the amount of their legacy; hut that the personal representatives of Chloe Hyde, having an interest in any claim which tends to take away the fund bequeathed-for her benefit upon a specified contingency, or to reduce it, for the benefit of another, are necessary parties to such action.
    Appeal from the Supreme Court. At the trial a special verdict was rendered, upon which the justice holding the circuit and special term decided that the plaintiffs were entitled to judgment, and directed that the argument on the exception to his decision should be heard in the firs! instance at general term. The Supreme Court, at general term in the seventh district, gave judgment for the plaintiff, and the defendant appealed to this court. The action was brought to obtain the construction of the will of David Hyde, deceased, and to establish the right of the plaintiffs to the legacy given to them in the will, and the liability of the defendant, as the surviving executor of D. Kellogg, to the payment thereof. The testator, David Hyde, in his will, after bequeathing several legacies, gave, devised and bequeathed all the rest and residue of his estate, both real and personal, which should remain after payment of his debts, funeral charges and legacies before mentioned, unto his daughter, Chloe Hyde, her heirs and assigns forever; and if she should die without lawful issue, then he gave and bequeathed to “ The Theological Seminary of Auburn, in the State of New-York,” the sum of $10,000, for the purpose of endowing a professorship in said seminary, to be paid to the said trustees in four equal payments, after the death of the said Chloe. The testator then, in his will, appointed Daniel Kellogg the guardian .of his daughter Chloe, until she attained the age of twenty-one years, avl directed him to apply all such part of his estate as he should deem necessary, for her maintenance, education and support; and appointed said Kellogg executor of his will, and authorized him to sell all his real estate, except thirteen acres in Aurelius. It was found by the special verdict, that David Hyde made and published his will on the 10th day of April, 1824, and died on the 12th day of the same month; that Chloe became of age on the 16th of August, 1837, and died May 31, 1850, intestate, and without issue; that D. Kellogg, the executor, died in May, 1836 ; that the executor did not keep the funds of the estate separate from his own private estate, but kept an account of his receipts and payments on account of such estate; that all the assets of the estate of David Hyde, received by D. Kellogg as his executor, except the sums paid out by him for debts, legacies, &e., remained, at the time of his death, absorbed in his own estate, and passed as such into the hands of his executors; that, after the death of D. Kellogg, his executors continued to receive payments made on contracts of land of D. Hyde, sold by D. Kellogg, and made payment to Chloe Hyde from time to time, for her support; .and that more than $20,000 of the funds of the estate of I). Hyde came into the. hands of Kellogg’s executors, mingled with the funds of his estate.
    
      John Porter, for the plaintiff.
    
      George TJnderwood, for the defendant.
   Paige, J.

The principal questions which arise in this case are: First. Whether the legacy bequeathed to “ The Theological Seminary of Auburn” is valid as a testamentary bequest; Second. Whether the plaintiffs’ charter authorizes them to take and hold the legacy, and execute the trust created by the gift; and, Third. Whether the defendant, as surviving executor of Daniel Kellogg, is liable to pay the legacy to the plaintiffs? The validity of the legacy is denied, upon the ground that it is limited to take effect on a contingency which is too remote, viz., an indefinite failure of issue; and, also, upon the ground that the legacy is repugnant to the previous absolute estate given to Chloe Hyde; and upon the ground that the power conferred upon her guardian, to apply all or any part of the testator’s estate, as he shall deem necessary, for her maintenance, education and support, is repugnant to the bequest of such legacy. Neither of these objections to the validity of the legacy is well taken.

A will is to be so construed as to render, if possible, every part of it effective; and, in such construction, the intention of the testator must govern, in all cases, where effect can be given to it without violating the rules of law. It cannot be denied that the words in a will, made before the adoption of the Revised Statutes, “ dying without lawful issue,” stand-tog alcne, imply an indefinite failure of issue, and that, when employed' in a devise of real estate as descriptive of the event on which such estate is limited over, they create an estate tail in the first taker, which the statute of entails would turn into a fee simple; and, in a bequest of personal estate, would give the first taker an absolute property therein, and that the estate limited over would be void, because limited to take effect on a contingency too remote. But where the testator has used language in his will which indicates that he meant, by the words “ dying without lawful issue,” issue living at the death of the first devisee or legatee, and not an indefinite failure of issue, then the devise or bequest over, limited to take effect on such failure of issue, will be valid asan executory devise or bequest. (20 John., 483; 16 id., 382, 435, 436; 2 Cow., 333, 392; 10 Paige, 151; 4 Kent's Com., 277, 278; 3 Ker., 280.) It seems that, in bequests of personal property, the American cases have relaxed the rule implying an indefinite failure of issue as applicable to devises of real estate, and have authorized the laying hold of slighter circumstances, in such bequests, than are allowed in devises of real estate, to limit the words “ dying without issue ” to issue living at the death of the first taker. (4 Kent's Corn., 282, 7th ed.) I think, in this case, that the testator has used language which indicates that he intended, by the words “ dying without lawful issue,” issue living at the death of Chloe, and not an indefinite failure of issue. He gives and bequeaths, on the death of Chloe without lawful issue, unto “The Theological Seminary of Auburn” the sum of $10,000, &c., “to be paid to the said trustees, in four equal annual payments, after the death of the said Chloe.” These words indicate an intention that the legacy is to take effect on her death, or not at all; for it is .to be paid in four annual pay ments after her death; that is, the legacy is to vest on her death, and the time of its payment is to be computed from that event. The legacy is therefore not void because limited on the happening of a contingency which is too remote. The legacy is not void because repugnant to the previous absolute estate given to Chloe. It is a familiar and well settled rule, that an executory devise may be engrafted on a previous devise in fee. It is this circumstance which distin guishes contingent remainders from executory devises. (3 Kern,, 286.)

Neither is the legacy veld on the ground of the power conferred in" the will upon the guardian to apply all or any part of the testator’s estate, as he' shall deem necessary, to the education and support of Chloe. There is no such repugnancy between this provision and the bequest of the legacy as to require the sacrifice of the latter, in favor of the former, upon the ground that it is evidence of the latest intention of the testator. The rule which sacrifices the former of several contradictory clauses is never applied, except where they are totally irreconcilable and cannot possibly stand together. In such cases, to prevent the invalidity of both provisions from uncertainty, the one last in local position will prevail, as denoting a subsequent intention. (2 Paige, 129, 1-30 ; 3 Jarman on Wills, 411, 412, 415, 416.) In this case, the twe clauses are not totally irreconcilable. The provision eon ferring power upon the guardian to apply such portion oí the testators estate, in the support of Chloe, as he may deem necessary, is not an absolute disposition of the whole estate in favor of the guardian, nor does the provision confer upon him the power to dispose of the whole estate, if he thought " proper to do so. The power actually conferred was merely that of expending so much of the estate as was necessary for the support and education of Chloe, during her minority; a power no greater than that which he, as guardian under the direction of the court, would have had at common law. The amount of the estate was sufficient to apply all that was necessary for the support and education of Chloe, without interfering with the bequest of the $10,000 to “ The Theological Seminary of Auburn.” ' Under the will, the guardian had no power to expend, for the support and education of Chloe, any greater amount of the estate than was necessary for that purpose, and the power to do this expired with her minority. No absolute power is given to the guardian to dispose of the whole estate. ' The large amount of the estate is evidence that the testator did.not intend that the-guardian should expend the .whole estate,' so as to defeat .-the ¡'legacy of $10,000. ; ' . ;

The plaintiffs’ charter .authorizes them to-take and’hold the legacy for the puipose mentioned in the will. ; It declares that they shall be “ capable in law of'taking, purchasing, holding and conveying, both in. law and equity, real and personal estate,” &c., arid gives them, the trustees (§ 3),'- the management of such estate, and power to sell and dispose of the same for the purpose of benefiting .the funds of the institution, and of applying the .avails of such funds to the purposes of the institution. The purpose of the institution, as declared in the preamble of the act, is the completion oí the education of pious men for the gospel ministry. Section five provides for the appointment of tutors and professors of the institution. The testator gives the legacy in express terms “ for the purpose of endowing a professorship in the seminary.” This object is undeniably within the principal purpose of the institution, and an indispensable means to accomplish such purpose. The invalidity of the objection, that the bequest to the plaintiffs creates a perpetuity, is decisively established by the case of Williams v. Williams (4 Seld., 526). In that case it was decided that the provisions of the Revised Statutes, in relation to the accumulation of personal property, and to expectant estates in such property (1 R. S., 773, 774), do not apply to or affect property given in perpetuity to religious corporations incorporated under the general statute. The powers conferred upon the plaintiffs in their charter are as extensive as those conferred upon such corporations, and the object for which it was granted, viz., “pious uses,” belongs to the same class of objects-for which religious corporations are authorized by such general statute to be created.

I think that the defendant, as surviving executor of Daniel Kellogg, is liable to pay the legacy to the plaintiffs. The jury find specially that Daniel Kellogg, the executor of David Hyde, did not keep the funds of the estate of Hyde separate from his own private funds; and that they were absorbed in his own estate, and passed as such into the hands of his executors. There being a large surplus of the estate of David Hyde, after payment of debts and legacies, and over and above a sufficient amount necessary for the support and education of Chloe Hyde, it was the duty of Daniel Kellogg to have set apart, and invested in permanent securities, 810,000 of the funds of the estate, and to have paid the income to Chloe Hyde during life; to the end that the principal, on the happening of the contingency stated in the will, viz., the death of Chloe without issue living at her death, might be in a condition to be paid over to the plaintiffs. (2 Paige, .132; 2 Barb. Ch. R., 214.) The omission to do this was a neglect of duty. This neglect of duty on the part of the executor, in connection with the mingling of the funds of the estate of Hyde with his own private funds, and allowing them to be absorbed in his own estate, would have made him personally liable for the payment of the legacy to the plaintiffs, had he survived Chloe Hyde. This personal liability of Daniel Kellogg, and the passing into the hands of his executors, the assets of Hyde, as a part of his own ¿state, are sufficient in law to create a direct liability on the part of such executors to pay the legacy to the plaintiffs. Besides, I think that Daniel Kellogg, in contemplation of law, held $10,000.of the estate to satisfy the legacy to the plaintiffs as trustee for them and Chloe, and not as executor. After all the debts and legacies were paid his duties as executor substantially ceased, and his duties as guardian and trustee supervened. Besides, assets of David Hyde, out of which the legacy to the plaintiffs is payable, are in the hands of the surviving executor of Kellogg, and I can see no good reason why he should not, in this suit, be directed to apply them in payment of the legacy. For these reasons I think that the plaintiffs have a remedy against the executor of Daniel Kellogg for the recovery of their legacy, and that it is unnecessary that letters of administration de bonis non, on the estate of David Hyde, should be taken out, in order to furnish the plaintiffs a remedy for the recovery of such legacy.

Denio, C. J.

The first objection urged against the bequest claimed by the plaintiff is, that it is limited to take effect upon an indefinite failure of the issue of Chloe Hyde, and is consequently void for remoteness. The language used, inde pendently of the words fixing the time of payment, is such as has often been determined to have that effect. Many of the cases are referred to in the very elaborate opinion of the late Supreme Court, delivered by Chief Justice Savage, in Paterson v. Ellis (11 Wend., 259). The will under consideration in that case directed that, if the testator’s daughter and legatee died before arriving at the age of twenty-one years, without leaving lawful issue, then the amount of the legacy should be distributed in the manner mentioned in his will as to the general residue of his estate. It was held, in accordance with many of the cases, but, in all probability, against the intention of the testator, that the bequest was absolute, the limitation over being considered as referring to an indefinite failure of issue, and therefore void upon the principle which I have mentioned. But the will we are now examining provides that, if the testator’s daughter should die without issue, then he gave to the plaintiff $10,000, to be paid in four equal annual payments, after the death of his said daughter; and the question is, whether this does not so qualify the former language as to show that it was the failure of issue living at the death of his daughter which was intended ? I am of opinion that it does so qualify it. It is settled that, where the nature of the ulterior bequest is such as to require the determination of the question, as to its taking effect, to be made after the death of the first legatee or devisee, it is then to be understood of a failure of issue at that time. Several cases have been adjudged upon that precise distinction. In Nicholls v. Hooper (1 P. Williams 198) there was a devise of lands to a person for life, remain der to her son, Thomas Jackson, and his heirs, provided that if the said Thomas Jackson should die without issue of his body, then the testator gave ¿£100 a piece to his two nieces, A. and B., to be paid, within six months after the death of the survivors of the said mother and son, by the person who should inherit the premises, and in default of payment as aforesaid, then he devised the lands to the legatees in payment. It was held that the language which would generally have created an estate tail, on account of the personal provision for A. and B., should be taken to refer to a failure of issue at the death of Thomas Jackson. There are two other cases to the same general purpose, Doe v. Webber (1 Barn. & Ald., 713) and Doe v. Frost (3 id., 546). In each of these cases the testator directed that, upon the death of the first devisee, without issue, sums of money should be paid, according to the directions of his last will; and this was held to indicate that the failure of issue provided for, referred to the time of the death of that devisee. The provision for payment, by the present will, looks, with at least equal distinctness, to the death of the testator’s daughter as the time for determining whether her issue had failed, within the meaning of the will; for, as the first payment on account of the legacy was to be made in one year from that event, it would be absurd to suppose that the testator contemplated an indefinite failure of issue, which might happen one hundred years afterward, when it would be impossible to pay the legacy according to its terms The rules for determining this class of questions are very artificial, and the whole doctrine has been wisely abolished, as to future wills, by the Revised Statutes. In regard, however, to wills to which it still applies, a solution of difficulties can only be safely sought by ¡its examination of adjudged cases. By adopting that test It appears that this limitation in favor of the plaintiff was to take effect upon the death of Chloe Hyde, if she left no issue living at the happening of that event; and, consequently, that the bequest over was a valid executory limitation.

But it is argued that the bequest to the plaintiff is repugnant to the devise and bequest to Chloe Hyde, and is void for that reason. There is, of course, nothing inconsistent in the idea that the whole residue is, in the first instance, given to Chloe, and that afterwards, upon the happening óf a certain event, a part of it is given over to the plaintiff. This is an executory limitation of a very usual kind, and involves no repugnancy whatever. ( Norris v. Beyea, 3 Kern., 273.) But it is provided in this will that the testamentary guardian of Chloe shall apply all or such part of the testator’s estate as he shall deem necessary, for her education, maintenance and support, until she shall attain the age of twenty-one years, and it is this provision which, as it is argued, brings the case within the principle of those in which a subsequent gift over has been held repugnant to a prior gift of an absolute estate. The cases sustaining this principle proceed upon the construction of the will, and not upon any positive rule of law. If it appeared that the testator intended to confer upon the first devisee an absolute power of disposition, and in his will he afterwards make a gift over, the two dispositions cannot stand together. The absolute power of disposition shows that he intended to give an unqualified title to the first devisee, and it is in the nature of such a title that the property, if not alienated by the owner, shall descend to the heirs, if it be real estate, or go to the next of kin, if it be personal. The gift over is repugnant to this quality of absolute ownership, and it is consequently void. (Norris v. Beyea, supra, and cases thei:ecited; Jackson v. Delancey, 13 John., 537; Helmer v. Shoemaker, 22 Wend., 137; Hill v. Hill, 4 Barb., 419.) There is nothing in this will, beyond the usual words of limitation appropriate to cany an estate in fee, to denote an intention in the. testator that his daughter should have an absolute power of disposition. The purposes to which it might be applied were limited, not general. These purposes were, maintenance, education and support. As to these objects, the guardian had full discretion, but it was, nevertheless, a discretion limited to the purposes mentioned. The estate could not be disposed of at the pleasure of Chloe or her guardian. It was also limited to her minority. True, if the,-objects required the expenditure of the whole estate, it was all to be used, as she was to be maintained and educated at all events. This purpose was paramount to- the desire of making a bequest to the plaintiff’s institution. But we are to intend that the testator supposed it probable that there would be a large residuüm, as the event proved there was, and out of this he directed the payment of this legacy. This is very different from an absolute power of disposition, and the case does not, in my opinion, fall within the principle referred to. I am, therefore, of opinion that the legacy to the plaintiff was a valid gilt, if there was personal estate remaining, at the death of Chloe Hyde, with which it could be paid.

But it is contended that the defendant, the surviving executor of Daniel Kellogg, who was himself the executor of David Hyde, is not liable for the amount, or any part of it. The defendant, it is true, does not represent the estate of David Hyde. But he, as Kellogg’s representative, is bound to account to the representatives of Hyde, and the parties interested in his estate, to the extent of the assets of his testator in his hands, for whatever remains unaccounted for of the estate of Hyde. Kellogg mingled the assets of his testator with his own, and they have passed into the hands of his representatives. I do not think it can be maintained that it was the duty of Mr. Kellogg, as executor, to invest the amount of this legacy in securities, for the purpose of satisfying this contingent gift, in case the right to it should arise. The case of Spear v. Tinkham (2 Barb Ch. R., 211), cited in the case of this plaintiff against Cole (20 Barb. S. C. R., 321), is inapplicable. That was the case of a vested remainder, and in which the legatee for life took, by the terms of the will, only the use and occupation. In this case, nothing was vested, and it was doubtful during the daughter’s lifetime whether the contingency would ever happen upon which the plaintiff would be entitled to the legacy. Mr. Kellogg’s duty as guardian terminated when Chloe Hyde came of age. I know of no authority to show that the executors of her father had a right to withhold" from her any portion of the residuary estate bequeathed to her, to await the event of her dying without issue living at her death. She survived her minority thirteen years. It is true that, if the whole residue had been paid to her on her becoming twenty-one, the plaintiff’s security for the legacy would have been imperfect. It is not necessary now to say what cautionary measures might have been taken to secure it during that time; but to me it seems clear that the executors of the testator were not, during the life of Miss Hyde, made the trustees for this legatee. The further authority referred to by the Supreme Court, in the case against Cole, do not appear to me to bear upon the question. ( Walcott v Hall, 2 Bro. C. C., 305 ; Lupton v. Lupton, 2 John. Ch. R., 614 ; Story’s Eq. Jur., % 92.) I cannot, therefore, hold the defendant liable on the ground suggested in the opinion of the court in the case against Cole. But upon the death of Miss Hyde, the plaintiff became entitled to $10,000 out of the property bequeathed by Mri Hyde to his daughter. I am not able to appreciate the difficulty which the Supreme Court found in decreeing its payment out of the assets in the hands of Cole, the administrator of Chloe Hyde; but I do not think the judgment in favor of Cole is a bar to the relief sought against the present defendant. If upon the death of Chloe, without issue, the plaintiff became entitled to this legacy, as I have supposed, any person who had possession of the estate out of which it was payable, as a trustee for the next of kin of Chloe, might, after a proper demand, be prosecuted for the payment. The positions to be established in such an action would be the legal validity of the bequest, the death of Chloe without issue, and that the defendant was in possession of funds or property out of which it ought to be paid. If there is a balance due from Daniel Kellogg’s representatives to the estate of David Hyde, that is a proper fund to the extent of such balance; and it appears by the special verdict that at the death of Chloe there was more than enough to pay this legacy in the hands of the defendant and the co-executors of Mr. Kellogg. Upon that event the plaintiff’s legacy arose, and they had no right after that event to pa ■ over the residue without retaining the amount to which th plaintiff was entitled. There is, however, a further difficulty in sustaining the judgment under review. The administrator of Chloe Hyde is a necessary party to the suit. He is a trustee of the next of kin of Chloe, and they are interested in this fund after satisfying all charges upon it, and have a right to be heard upon any claim which tends to take it away for the benefit of another, or to reduce it.

My opinion, therefore, is, that the judgment of the Supreme Court should be reversed, and the proceedings remitted to the Supreme Court, with directions to make an order that the case stand over to enable the plaintiff to make the administrator of Chloe Hyde a party defendant; that, upon this being done, and an opportunity being given to him, according to the forms and practice of the court, to contest the facts found by the special verdict, so far as may be material to show his right, as against the plaintiff, to the amount which will otherwise be required to pay the legacy, the Supreme Court should be directed to proceed to judg ment according to the principles above established.

All the judges concurring,

Ordered accordingly.  