
    John H. Riker, as Sole Surviving Executor, etc., Resp’t, v. Sampson Simpson Leo, Impleaded, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 4, 1889.)
    
    1. Will—What' words have the force of a command—Creation of trust.
    Where a testator constitutes a trust with regard to a certain fund by limiting its use to certain prescribed purposes, and where the gift is not absolute, but is qualified by imposing upon the taker the performance of certain duties through the means of the income from the fund, and the bequest cannot be freed from the conditions imposed upon its use without wholly frustrating the testator’s purpose, a “desire" which he expresses has the force of a command, where it expresses the object the testator had in view when making the bequest, and when the donee is “desired” or “requested” to dispose of the property in favor of others, the words are imperative and create a trust.
    8. Same—Bequest to corporation—When void.
    In a case where a corporation claims the right to take under a will, that right may be subject of severe scrutiny, and where its right to take at all is derived from the act of incorporation, without the dispensation of which, from the general statutory prohibition, the corporation could not take, and the bequest constitutes a trust for a purpose not included within those retained by the statute abolishing all uses and trusts, unless the purpose is comprehended within those which the chartered powers of the corporation enable it to effect, the bequest must fail.
    ,3. Same—When aid of court cannot be invoked to support claim of CORPORATION TO FUND.
    The sanction of the court should not be lent to support the claim of a society to a fund in derogation of the provisions of the Revised Statutes with respect to the powers of corporations; nor should it be held that a corporation, upon which is conferred the capacity to perform a certain function, may take upon itself the performance of other functions which are, in their nature, distinct and different.
    Appeal from a judgment of the general term, first department, affirming a judgment of the special term, construing the will of Sampson Simpson, deceased, in favor of the defendant, The North American Belief Society for the Indigent Jews in Jerusalem, Palestine.
    
      John E. Parsons, for app’lt; Adolph L. Sanger, for resp’t.
    
      
       Reversing, 15 N. Y. State Rep., 938.
    
   Gray, J.

In this action the plaintiff seeks to have it determined whether, under the will of the decedent, the defendant, Leo, or the defendant, “The North American Belief Society for the indigent Jews in Jerusalem, Palestine,” is entitled to the capital of a certain trust fund of $50,000.

It was claimed by each, and, thus far, in the court below, the society has been successful. The testater left the fund in trust to his executors, to apply the income thereof to the support of a nephew. When he died, the executors were directed to pay the same “to any responsible corporation in this city existing at the time of the death of my said nephew, whose permanent fund is established by its charter, for the purpose of ameliorating the condition of the Jews in Jerusalem, Palestine, and I desire such corporation annually to transmit the interest received on said $50,000 to Jerusalem, Palestine, to ameliorate the . condition of the Jews living there, by promoting among them education, arts and sciences, and by learning them mechanical and "agricultural vocations. * * * In case my disposition of the $50,000, as provided for by the last clause of this my will, shall fail, and not take effect, then I give and bequeath the said principal" sum of $50,000, equally to the children of my niece, Jochebed M. Simson Leo, etc.”

The defendant, Leo, appellant here, is the only child of testator’s niece, Jochebed. The respondent society claims to be entitled to the fund, as being a responsible corporation, having a permanent fund, established by its charter, the interest of which is to be “ annually applied to the relief of indigent Jews in Jerusalem, Palestine.” At the time of testator’s death, in 1857, this society had been in existence for about four years. He was then its president, and was one of its incorporators. It was found that no corporation, other than this society, existed in New York city, at the time of the death of testator’s nephew, which could make any claim to be entitled to the fund; and as to the claim, the executors did not think it could legally perform the duties required by the testator.

The question of the right of the society to take this fund, is invested with such difficulties, as, in my opinion, seem to be insurmountable. Though the clauses under consideration are not written with much carefulness in expression, there is no difficulty in understanding the testator’s intentions. They are clear enough; whether with regard to the benevolent purpose, or with regard to the event of its failure, by reason of the non-existence of such a corporation as he contemplated to be the trustee of this fund. Nor does the appellant appear in that ungracious attitude of seeking to frustrate a testator’s benevolent wishes, which deprives the claim of the adventitious aid óf a sympathy in its presentation and prosecution.

For, on the face of the matter, there is an obvious distinction between the objects, as expressed by the testator in his testamentary provision, and those for which this-society exists. The society’s objects are, as appears from its title and charter, to contribute “to the relief of the indigent Jews in Jerusalem;” while those of the testator were to ameliorate the condition of those living there ‘ ‘ by promoting among them education, arts and sciences, and by learning them mechanical and agricultural vocations.” Clearly, in the accomplishment of the one purpose, is involved the idea of charity, and of the other an educational system. Ideas which, while having their rise and often owing their fulfillment to the same source, in the benevolence of individuals, are quite distinct in their aims. Therefore, for the appellant, as the contingent legatee of the testator’s bounty, to say that his uncle’s will is not being effectuated by paying over the money to this society, seems rather a contention in defense of the will than an attempt to defeat any part of it. In addition, his position is fortified by being in harmony with that taken by the executors.

The testator has here constituted a trust with regard to the fund, by limiting its use to certain prescribed purposes. The gift is not absolute, but is qualified, by imposing upon the taker the performance of certain duties, through the means of the income from the fund. We cannot free the bequest from the conditions imposed upon its use, without wholly frustrating the testator’s purpose. The “desire,” which he expresses, has here the force of a command, because it expresses the object testator had in view when making the bequest. It is very clear that where the donee of property is “desired” or “requested,” by the testator, to dispose of that property in favor of others, those words are imperative, and their use will create a trust. See 1 Williams on Executors, 88; Van Dyck v. Van Beuren, 1 Cai., 84.

It may be admitted that the fact that this society may not be the particular donee intended by testator, will not control the legal effect of his language, if the society can legally claim the gift, because of a legal capacity to effectuate the benevolent trust.

The finding of fact by the learned judge at special term was, that the testator did not intend to give this fund to this particular corporation, but to any corporation which could answer the description given by his will. Notwithstanding that the intention of the testator, with respect to this society, may not be controlling, it is impossible for it to be without its effect. The finding of fact could not well have been otherwise, when we consider the circumstances. It is altogether inconceivable that a testator, intending a certain existing corporation to take under his will, should not only fail to name it, but should fail to describe its chartered objects, with some approach to accuracy, when he was an incorporator and its principal officer.

The testator was not a layman, but a lawyer; a fact deserving of attention. If we conclude that testator did not suppose this society capable of receiving this fund, are we not bound to scrutinize most closely its right to it, in view of the fact that he must have known as a founder what were its scope and projected aims? It is suggested on behalf of the society, as a reason for the testator’s not designating it by name, that it must have occurred to him that_ before the close of his nephew’s life, the society might have-discontinued operations, or might have become irresponsible. This is an ingenious suggestion; but hardly one which has sufficient force to remove the obstacles to our finding-an understanding in the testator that this society would take. I have adverted to the circumstances at the time the will was executed, as illustrating'the testator’s close connection with this institution and the singularity of his-omission to designate it, or to describe its corporate objects;, if he had it in mind as competent to execute his benevolent purpose. When we are aided by extrinsic proof in the case, we should, after we have read the will, endeavor to-place ourselves in the situation of the testator, and thus endeavor to ascertain his intentions and purposes.

His position with regard to the society, taken in connection with the fact of his being a lawyer, leaves no room for us to doubt as to his understanding of the legal status and aims of that corporation. He knew that its authorized corporate objects were to relieve indigent Jews in Jerusalem. He could not be supposed to be unaware of the distinction between performing those charitable offices, which indigent individuals demand at the hands of their fellowmen, and the expenditure of moneys in building up an educational system among the members of his race who resided in a distant land, not so favored as other lands were-with the advantages of schools and academies of general learning.

The testator’s description of the corporation, to which the money should be paid, as one whose charter established a permanent fund for the purpose of ameliorating the condition of the Jews in Jerusalem, does not agree with the-stated objects of the charter of this society, if we read language with the meaning which the ordinary and usual sense and import of words convey. That the testator did not understand his description to refer to a corporation, whose chartered objects were to administer charity to the-poor and needy, is evidenced by his subsequent definition of what he understood by ameliorating the condition of those of his race who dwelt in Jerusalem. He defines it as-the promotion among them “of education, arts and sciences, and learning them mechanical and agricultural vocations.”

His purpose was liberal and benevolent; not such as is¡ commonly understood by the courts as charitable. This society is limited by its charter ,to works of charity; and, while charitable w'Ork is prompted by benevolence, and a, charitable society may be termed a benevolent society, there is a wide distinction between that object of benevolence and one which aims at maintaining an educational system. To relieve the indigent, means to administer to their pressing and necessary wants; to give them food and prevent them from falling into beggary.

It is a well known and notable fact with the Jewish race, that their poor are so generally well taken care of as to make a Jew beggar almost an unknown spectacle. But to educate individuals does not relieve their indigence. Schools and lectures will not relieve the daily wants of families, or keep the wolf from the door. The general education afforded by the state, or by the benevolence of individuals, results in a few persons, in the general number, concentrating in themselves, by superior aptitude, the principles of learning which the books and the teachers have taught them. These few may be enabled to make use of these principles by some practical application, and thus may be able eventually to improve their condition. But it cannot correctly be said that furnishing one with education relieves him from want. Many a student has starved, and many a scholar has suffered from physical privations, which his wealth of learning and stores of knowledge were useless to him to relieve.

The promotion of education in the arts and sciences, and in mechanical and agricultural vocations, means to furnish all with the means of acquiring knowledge, irrespective of their wealth or poverty. I think we could not strictly, and therefore, should not here say that a society constituted to relieve indigence comprehends an original design or purpose to educate persons in the arts and sciences, or to follow a vocation. The objects are sympathetic, as are all the objects of benevolence; but they are distinct in their aim and in their prosecution.

It is quite conceivable that the testator, aware of the absence in Palestine of the opportunities ior the various forms of education, sympathized with the members of his race in their deprivation, and felt that there was a field for benevolent action open, which would strongly appeal to others, who like himself, had had so many advantages offered to them. I think it is quite probable that what the testator intended was, to hold out an inducement to the formation of such a corporation as he describes. He knew there was none such in New York city; but may have hoped that the influence of his example upon the rich and benevolent members of his race, in that city, and the certainty of the eventual acquisition of this fund might result in the incorporation of such a society. I do not think the objects and purposes to which the charter of this society limits it, comprehend the objects and purposes, which the testator prescribes, and it should not, therefore, be permitted to take under this will. In each case, where a corporation claims the right to take under a will, that right may be the subject of severe scrutiny. Its right to take at all is derived from the act of incorporation; without the dispensation of which from the general statutory prohibition, the corporation could not take. This bequest constitutes a trust for a purpose not included within those retained by the statute abolishing all uses and trusts; and unless, therefore, the purpose is comprehended within those which the chartered powers of the- corporation enable it to effect, the bequest must fail.

The respondent cites the cases of the wills of How and of Hallgarten (10 N. Y., 84; 110 id., 678), where legacies were sustained; though in the former case the corporate name of the institution was not stated, and in the latter case, the bequest was to an unincorporated society. The Hallgarten will case (reported as Matter of Wehrhane in 110 N. Y.; 18 N. Y. State Rep , 1030), does not touch the present case; because there the ‘1N ewsboys’ Lodging House ” was a branch department of the Childrens’ Aid Society, to which the testator had already also given a legacy. In the case of New York Institute, etc., v. How's Executors (10 N. Y., 84), the court held that, it was a question of identity, arising upon description, and that the point was whether the legatee can be found.

It was held that though the act of incorporation did not bring the objects of the institution within those described in the will, that “ subseqent legislation had so far modified the charter of the corporation in those particulars, that when the will was made, these several circumstances had been engrafted upon it, and might well enter into a description of its general scope and purposes.” As the court found in that case that “the corporation which claims the legacy completely answers the description which the testator has given,” it was a logical result to sustain its claim.

I admit the principle involved by the respondent, that where the intention is apparent, tne court must give such a construction as wifi support the intention of the testator. It is one too well settled, and too often invoked by judges to be overlooked. It is upon that principle that courts of justice act in construing wills. Where the apparent intention is commendable, as in this case, courts may strain in their effort to give it effect. But we have here a case where the testator’s intention, as derived from the extrinsic circumstances, and from the language of his will, would appear to exclude the respondent society. The omission to name this society, or to describe more aptly its chartered purposes, is as highly significant, as it is certain that the society does not fall within the class of corporations described. In order to execute such a trust, as is here contemplated, some legislative action, or amendment of the charter would be required, which would enable it to comprehend the promotion and maintenance of educational enterprises within the scope of its chartered powers. Now a corporation can exercise no other powers than those expressly conferred by the charter, and those which may be necessary to the exercise of the powers so given. For us, therefore, to sanction the claim of this society to the fund, would be to disregard the provisions of the Revised Statutes, with respect to the powers of corporations, and to hold that a corporation, upon which is conferred the capacity to perform a certain function, may take upon itself the performance of other functions, which are, in their nature, distinct and different.

The appellant has also presented the point that the bequest was void for indefiniteness. The direction of the testator was to pay the money to “ any responsible corporation in the city, existing at the time of the death of his nephew, whose" permanent fund, etc.” Unquestionably, if there were more than one such society in existence at the time, the gift would be void for the uncertainty. The learned justice, at special term, conceded that, and found great difficulty in reaching his conclusion to sustain the claim of this society. He confessed his doubt, but thought, upon the facts of this particular case, the bequest might be sustained. Inasmuch as, in his opinion, this society answered the description of the will, and as it was the only one in existence, he upheld its claim. The learned justice, at general term, thought the bequest sufficiently definite, under the authority of Power v. Cassidy, 79 N. Y., 602. The objection is a very grave one; but, inasmuch as I conclude that this society is not the one described in the will, and that it cannot legally execute the benevolent trust purposed by the testator, I think discussion needless upon this head.

The judgment below should be reversed, and, as a new-trial could not be productive of any different result, judgment absolute should be entered for the appellant, Leo, with costs to be paid out of the estate.

All concur.  