
    Ross C. Scott, as Executor of the last Will and Testament of Willard Ives, Deceased, Plaintiff, v. Lucina M. Ives et al., Defendants.
    (Supreme Court, Jefferson Special Term,
    February, 1898.)
    1. Bequest o£ more than one-half of an estate to charitable, etc., corporations — Status of foreign corporation.
    A testator is prohibited from devising to any corporation, which comes within the definition- of chapter 360 of the Laws of 1860, more than one-half of his .property, and this, regardless of the status of the corporation, either as to the provisions of its charter or as to the laws of the state of its domicile; as the prohibition of the statute is directed against the testator and not against the corporation.
    2. Same — Declarations of a wife to an attorney that she would not contest her husband’s will — Code Civil Procedure, § 829.
    Proof, that, after a testator had been informed by his attorney that he had made a will which offended against chapter 360 of the Laws of 1860, his wife was summoned, that the imperfections of the will were explained to her and that she, after objecting to the provision made for her, told the attorney that she would not contest the will and that he, about the same time, prepared a codicil which cut off her bequests if she made a contest, does not establish any valid agreement upon her part not to contest the will, nor one made upon a valid consideration; and the evidence of the attorney, as to the wife’s declarations, is, as a privileged communication, properly excluded under section 829 of the Code of Civil Procedure.
    3. What is a contest of a will — Estoppel of beneficiary by conduct.
    Proof, that a widow did not contest a will and codicil of her husband when they were offered for probate, that she continued to live in a house upon a farm in which she "had been devised a life interest, that, in the absence of action by the executor, she made arrangements for the occupation of the farm by a tenant, that she accepted, but without prejudice to her rights to contest the will, some semi-annual payments of an annuity given her by it, and that, upon being made a defendant in an action brought by the executor to construe the will, she raised the question whether it was valid under chapter 360 of the Laws of 1860, does not establish the fact that she has contested the will and, by its terms, has thereby precluded herself from taking under it; nor has she estopped herself, by her conduct, from questioning the validity, under said statute, of certain bequests to religious, charitable, etc., institutions.
    
      This action is brought to obtain a construction- of certain provisions of the last will and testament, and codicil thereto-, of Willard Ives, deceased, and for instructions to the executor.
    Smith & Smith, for plaintiff.' ¡ 1
    Rogers & Atwell, for defendant Lucina M. Ives.
    G. S. & H. L. Hooker, for G. S. Hooker, as guardian ad litem, for Florence M. Howes et al.
    John Conboy, for Mary Bliven.
    Bradley Winslow, for Jennie H. Smith et al.
    W. A. Nims, for American Bible Society et al.
    B. A. Field, for defendant Elmer T. Hall.
    Kellogg & Cobb, for defendant Emily Foot.
    Purcell & Carlisle, for defendants J. A. White et al.
    E. R. Wilcox, for defendants George H. Hall et al.
    I. L. Hunt, for defendant Julia A. Weidman.
   McLennan, J.

Willard Ives, who resided in the city of Water-town, Jefferson county, Hew York, died on the 19th day of April, 1896, leaving neither father, mother, sister, brother, child or descendant of any child, but left a widow, the defendant Lucina M. Ives. At the time ,of his death he was about 90 years of age, and his widow was about 77 years of age. He left a last will and testament which bears date October 17, 1891, and a codicil thereto which bears, date February 17, 1896. By said will and codicil, Mr. Ives assumed to dispose of.his entire estate, consisting of both real and personal property, and amounting in the aggregate to about $175,000. The real estate constituted a very small" part- of the ■ estate, and did not exceed in value the sum of $10,000.

By the will the testator bequeathed to his wife, Lucina M. Ives, the use of a farm of the value of about $5,000, during her natural life; also the personal property thereon-or connected therewith, absolutely, but which amounted to only a few hundred dollars. He also bequeathed to her an annuity of $1,000, $500 to be paid semiannually during her natural life, and he directed his executors to select such securities belonging to his estate, or to invest such sum as would be sufficient to pay such annuity. All the rest, residue . and remainder of his estate he bequeathed to' the “ following institutions, to be permanently invested by each of said institutions, and the income of such several investments to be used in the manner to be determined by the several boards of trustees of said institutions, and each of said investments shall be styled The Wil- ' lard Ives Fund, namely:

“TheAmerican Bible Society, 25 per cent, of my estate, including both real and personal property.

' “ The Missionary Society of the Methodist Episcopal Church, 25 per cent, thereof.

“ The Ives Seminary, 15 per cent, thereof.

“ The Freedmen’s Aid Society of the Methodist Episcopal Church, 10 per cent, thereof.

“ The Methodist Episcopal Hospital in the city of Brooklyn, 5 per cent, thereof.

“ The American University, 5 per cent, thereof.

The Union Missionary Training Institute, 5 per cent thereof.

“ The Board of Church Extension of the Methodist Episcopal Church, 5 per cent, thereof.”

The will further provided as follows:

“And it being my intention to dispose by this will of all my estate, real and personal, I hereby give and bequeath any and all residue and remainder of my property that may not have been disposed of by the foregoing paragraphs of this will, to the several institution's hereinbefore named, in the same ratio and proportion by which I have made the several bequests to them severally hereinbefore.”

And it further provided:

“And in case any of said institutions or corporations shall not accept or shall be incapable of taking under this will, then I give what would otherwise have gone to such corporation or corporations to the other ¡corporations named, in the ratio and proportion by which I have made the several bequests to them severally.”

By the said will the testator appointed the defendant Lucina M, Ives, Ms wife, and the plaintiff, Boss O. Scott, of WatertoWn, H. Y., executors, and clothed them with the power of sale in the following language:

“And I hereby authorize them to sell and convey, by proper deeds, any and all of my real estate or to' contract for the sale of the same, and to lease the same or any part thereof, and for the purposes of this will, reserving always, however, the life estate hereinbefore .created in favor of my beloved wife. And I authorize them to convert my property into money, or to deliver to said institutions securities and stocks at their market value, in payment of the said several legacies in part or in ful), upon their election to receive the same. My said executors may select from my securities sufficient of stock and securities to yield the said semi-annual payments of $500 to my said wife, or'make investments for that purpose.”

•It is evident that the testator by the will as thus made, intended that his wife, the defendant Encina M. Ives, should have the use of the farm above referred to, during her natural life; that she should have the personal property upon said farm and connected therewith, the household furniture, etc., absolutely; arid that in' addition she should have $500 semi-annually during her natural life, to be derived from the income of securities owned' by the testator, or to be derived from investments made by his executors out of his property. The balance of his estate then remaining, if any, or remaining after the death of' his wife, whether consisting of real or personal property, he devised to the several institutions above named, according to the percentages therein, named, and that if any of said institutions were for any reason incapable of taking, the institutions capable of taking were to receive the share of the institutions incapable of taking, in proportion, to the percentages ' named in the will.

As before said, on the 15th day of February, 1896, the said Willard Ives executed a co'dicil to his said will, in and by which he revoked and annulled the bequests to the Ives Seminary and the Union Missionary Training Institute, contained in said will, and in place thereof assumed to bequeath to the Ives Seminary the sum of $30,000-by the following language:

“By this my' codicil to my last will and testament, I give to the Ives Seminary located at Antwerp, Jefferson county and state of Hew York, an institution of learning incorporated by the Board of Regents of the state of Hew York, the sum of thirty thousand ($30,000) dollars, to be safely invested by the said Ives Seminary, and. the income thereof to be applied for the benefit of the said-Seminary, so long as and upon the condition that said Seminary shall be in good faith recognized and supported as a Seminary under the charge and supervision of the Conference of the Methodist Episcopal Church, within whose jurisdiction said Seminary shall be. The Board of Trustees of said .Seminary shall invest said moneys in good, safe, income-paying securities, and keep the principal sum unimpaired,' and the income thereof shall be applied according to the directions of the said Board of Trustees. In case the said Conference of the Methodist Episcopal Church shall at any time cease to exercise supervision over said Seminary, and shall cease to give to the same moral support, -this bequest shall terminate, and in such case I give and bequeath absolutely said principal sum to the American University, named and described in my will.at paragraph 2, subdivision 6.”

And in addition to the annuity of $1,000, $500 to be paid semiannually, bequeathed to his wife-, the defendant Encina M. Ives, he gave to her by the codicil an additional sum of $500, .payable semi-annually -during her natural life* which would make her annuity the sum of $2,000 per annum, the payment of such annuity to be secured in the same-manner as provided in and by the will.

The said codicil also contained this provision:

“All bequests to my said wife in my will and in this codicil shall not take effect if for any reason she contests my will or this codicil; but I do not expect she will object to the plan of my will and codicil, and I have always believed her to be in sympathy with my benevolent designs. I hereby, as modified by this my codicil, ratify my last will and testament as aforesaid, and as so ratified my will and this codicil express my clear purpose that my property shall forever benefit the good.”

It is clear that the purpose of the testator by his will, as modified and changed by the codicil, was that his wife, the defendant iucina M. Ives, should have the use of his farm, situated in Jefferson county, Hew York, during her natural life; that she should have absolutely the personal property upon said farm or connected therewith, the household furniture, etc.; and that she should have annually an income of $2,000 during her natural life, to be paid to her from the income of securities from his estate, or from investments made by his executors from the avails of his estate; and that then the Ives Seminary should have $30,000, and that the other institutions above named should receive the remainder in the proportions named in the will, and that, after the decease of his said wife, the farm and the property or securities from which the annuity of ■ $2,000 a year to her was to be derived, should be distributed between such institutions above named, except the Ives Seminary, in accordance with the percentages named in the will; and that if any of said institutions named were-incapable of taking, that ■the institutions capable of taking would receive the share of the institution or institutions incapable of taking, in the proportion named in the will.

The said will and codicil were duly admitted to probate without-•objection on the 30th day of July, 1896, and the plaintiff duly qualified as sole executor, the other executor named in the will, the defendant Lucina M. Ives, having refused to qualify. The plaintiff as sole executor brings this action to obtain a construction of the will and codicil, and the widow the defendant Lucina M. Ives, the institutions named as legatees above named, also the heirs and next of kin of the testator, are all made parties defendant.

It is raged on behalf of the widow, Lucina M. Ives, and on behalf of the defendants' the heirs and next of kin of the testator, that the bequests to the institutions above named, in excess of one-half of the estate of the testator, are void under chapter 360 of the Laws of 1860, and that as to, such one-half of his estate Willard Ives died intestate. The attorney’ for the institutions above named insists that the bequests to them are valid to the full extent of the personal property at least, for the reason that the widow is estopped from questioning the provisions of the will, and that she has elected to take under the will. This.is also the contention of the plaintiff.

It is also contended that certain institutions are not affected by the statute of 18,60, and that, therefore, under the provisions of the will, such institutions are entitled to take the share or the proportion of the share which would have gone to the institutions, which are subject to the provisions of the statute in case such act applies.

The act of 1860 above referred to, provides as follows:

• “ Ho person having a wife shall by his or. her last will and testament devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society or corporation, in trust or otherwise, inore than one-half of his or her estate, after the play-meat of Ms or her debts, and such devise or bequest shall be valid to the extent of one-half and no more.” «

It is conceded that the defendants, the American Bible Society, the Missionary Society of the Methodist Episcopal Church, the Ives Seminary, the Methodist Episcopal Hospital, in the city of Brooklyn, and the Board of Church Extension of the Methodist Episcopal Church, fall witMn the provisions of the act of 1860, but it is urged that the defendants, the Freedmen’s Aid Society of the Methodist Episcopal Church, and the American UMversity, being foreign corporations, and there being no inMbition in their charter against taking by devise any part of the testator’s estate^ the statute is not operative as to them, and that, therefore, the property of the testator, in excess of one-half, should go to said two institutions under the residuary clause of said will.

Concededly, all of the institutions named in the will are either benevolent, charitable, literary,' scientific, religious or missionary in their character, and so come within' the provisions of the act of 1860. The fact that the two Mstitutions, the Freedmen’s .Aid Society of the Methodist Episcopal Church and the American UMversity are foreign corporations, or that their charter or the laws of the state of their domicile do not restrict them in the matter of receiving or taking bequests, is of no consequence.

This was expressly held in the case of Amherst College v. Ritch, 151 N. Y. 282. At page 333 the court say, per Vann, J.: “ The statute in question (the act of 1860) is not a mortmain act.- The policy of the state upon the subject appears in a few general and many special statutes passed at various times. The Revised Statutes present an example of the former when they provide that 1 no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter or by statute to' take by devise.’ 2 E. S. 57, § 3. The charters of various corporations illustrate the other class of legislation by limiting the amount they can take by devise or otherwise! Matter of McGraw, 111 N. Y. 66, 107. The object of all these statutes is to ‘ prevent accumulations of property in the hands of institutions which take no part in the productive activity of the commumty.’ They act upon the power of corporations to take and hold, not on the power of a testator to give. The.authorities relied upon by the appellants are to a great extent judgments pronounced when these statutes, thus expressing the policy of the state against the concentration of wealth in mortua manu, were under consideration by the courts. The decisions under the mortmain acts of England are equally inapplicable, when the ,difference between those acts and the act of 1860 is borne in mind. That statute (act of 1860) is of a different character from any of those mentioned. It does not prevent charitable corporations from taking, but forbids a testator who has a wife, child or parent from’giving more than one-half of his estate ■ after the payment of his debts. Chamberlain v. Chamberlain, 43 N. Y. 424, 440. It does not prohibit charitable gifts altogether, but only under certain circumstances, to a certain extent and by a certain method. If the gift is not made by will, or if made by will.and the testator leaves no surviving relative of the degree named, or it is to charities other than those mentioned, there is no prohibition. It does not compel a testator to leave his property or any part thereof -to relatives; It does not prevent him from’ giving all that he has to charity during his lifetime. It is aimed simply at the giving of an. undue proportion to charity by will, when certain relations have, .in. the opinion of the legislature, a better claim.

“As was said by Judge Allen in Chamberlain v. Chamberlain, 43 N. Y. 424, 440: Its object was to prevent a person upon, whom othérs standing in near relation had claims, from disappointing their just expectations ¡ and disinheriting them from pio-us or - philanthropic motives, and the. intent was to include all public objects, whether religious, charitable or literary.’ Its theory is not to keep property away from charitable corporations, but to prevent a testator from giving more than one-half of his net estate at the expense of his wife, child or parent. Its sole purpose is to protect those natural objects of his bounty from improvident gifts to their neglect.”

It would seem, therefore, upon authority, that each of the defendants, associations or corporations above named, are subject to the restrictions of the act, and that they cannot receive under the will of the testator to exceed in the aggregate one-half of the property of which he died seized, and. this. regardless of the fact that some of such 'associations dr corporations may have been organized under the laws of a foreign state, and ■ that their charters or the laws of such state may not in any way have limited their right to receive bequests of the character in question.

In other words, it would seem to be the settled law of this state, that a testator is prohibited from devising to. any corporation which comes within the- definition of the act of 1860, more than. one-hall of his property, regardless of the status of such corporation, either as to the provisions of its charter, or as to the laws of the state in which, it is domiciled; that the statute is not aimed against the associations or corporations, but is against the testator, and prohibits him in case he has a wife,, child, etc., from devising more than one-half of his property to any benevolent, charitable, scientific or missionary society.

It would seem, therefore, independent of any other fact or consideration, that "Willard Ives died intestate as to all of his property in excess of one-half of the same, and that if there were no other considerations the personal property would go- to- his widow, the defendant Lucina M; Ives, and the real estate to his heirs and next of kin.

It is urged, as before suggested, on behalf of the plaintiff, and also on behalf of the associations above named> that the defendant Lucina M. Ives is estopped from claiming under the will of the testator, in excess of the amount bequeathed to her, for the reason, first, that she assented to the provisions of the will and codicil made by the testator, and agreed not to contest the same; and second, because she has accepted the benefits under such will, and, therefore, is estopped from objecting to the same.

It, therefore, becomes important to determine what was the attL . tude of the defendant Lucina M. Ives, in respect to the will and codicil in question. The will was made and executed in the ordinary way, so far as appears. The testator was informed by the attorney who drew the will that its" provisions might be annulled or modified by reason of the act of 1860. " Notwithstanding such information on the part of his attorney, he insisted on making the will in question. He was told, apparently, in order that the institutions named as defendants might receive the bequests named in the will, that it would be necessary that no one should contest the same. In other words, that the" provisions of the will were illegal,' and that any one interested "was competent to have such illegality declared". "It also "appears that he was informed that he could intrust his property to his executor, relying upon the good faith, and integrity of his executor to carry out his, the testator’s, intention in respect to his property, but without any directions so to do; that the testator;"under all 'the circumstances, decided to make the will" as it now is. ' ' " '

After such .will was prepared and executed, and when the testator was sick and" his life despaired of, the attorney who prepared . the will, and who Was the confidential adviser of the testator, sent' for his wife, the defendant Encina H. Ives, and explained to her the imperfections in the will under the statute, and stated that such provisions could not be effectual unless she consented thereto. . It is offered to be proved in this case by the attorney that the widow, the defendant Encina M. Ives, thereupon stated to: the at- ■ torney who had sent for her, that she was satisfied, with the provisions of the will, and that in no case would she raise any objections to the same. Upon the trial it was held that such evidence was incompetent -under section 829 of the Code of Civil Procedure, upon the ground that it was a privileged communication, and that notwithstanding. the fact that she, the wife, had not employed the attorney, but because she was sent for and consulted by him as attorney, in respect to' her rights under the provisions of her husband’s will, that what she said upon that occasion respecting her rights and interest under such will, were privileged communications.

A careful examination of the authorities cited has led me to the 'conclusion that the. holding was correct, and that such evidence.' should not be permitted in the case. •

It was also offered to'be shown that at the time the codicil in question was made, the testator and his wife, in the presence of the attorney, had a conversation in which the provisions, of the will and of the codicil were discussed; that.the defendant Encina'M. Ives insisted that more ample provisions should be made for her, . but that When that Was denied her by the testator, she said in substance that under .no circumstances would she contest or object to-his purposes in the distribution of his property. -

It is believed that such evidence was immaterial for any purpose in this case; that it is not competent by oral agreement to make a will different from that expressed by the formal instrument. In other .words, it is sought by oral conversation ■ to. establish a Will in contravention óf the statute, and evidently with the intent of the evasion of the "statute. If the purpose of the statute, as has been said, is to prevent a person when- approaching death, under religious fervor or excitement, from disposing of his ' property fpr religions purposes to' the exclusion of his kindred, then it is equally important that the wife or child should be protected against, such influences as might induce her, in the presence.., of death,, to assent to the consummation of such purposes.

It .is believed, and so-held, that the conversations between the attorney and the defendant Eticina M. Ives,..so far as material upon any issue in this case, were privileged communications, and, therefore, properly excluded upon the trial.

It is not pretended that any valid agreement was made between the testator and his wife, in regard to the provisions of his will. Certainly no consideration passed to her to support such agreement At the most, he told her he was going to do just what he did do in respect to his property. She objected; declared in substance that he ought to make more ample provision for her. But when she found he was determined, she said in substance that he might do as he liked; that she would not interpose any objection. That the testator did not rely upon such statement is clear from the words of the codicil: “ But I do not expect she (my wife,) will object to the plan of my will and codicil, and I have always, believed her to be in sympathy with my benevolent designs.”

These words clearly indicate that no agreement had at that time been made between the testator and his wife, that she would not object'to the plan of his will and codicil. It is further evident that no secret trust was created. The testator did not give to his wife any property, or add to or omit from his will or codicil any clause or provision on account of the fraud or misrepresentation of his wife. She made no promise or suggestion as to what she would or would not do, in case any part of the estate came to her. A secret trust has never been declared under such circumstances. It cannot be said that any act or word of the wife induced the testator to make the will he did make. On the contrary, she urged him not to malee it. She practiced no fraud; made no statement which induced him to act; made no promise which he relied upon; and. it is, therefore, held that the conversation sought to be given by the attorney for the testator was immaterial, as bearing upon any of the issues involved in this action.

By the original will the testator bequeathed to the defendant, the Ives Seminary, 15 per cent, of his entire estate, and the balance of his estate was bequeathed to the other institutions named in the will. By the codicil he gave to Ives Seminary $30,000, and to the remaining institutions named in the will the balance of his estate according to the percentages named therein. There is nothing to indicate that the purpose of the testator wás changed in respect to the Ives Seminary, to the extent, at least, of providing that it should have the full amount'of $30,000, independent of what sum the other institutions might take. ■ It is, believed that as the bequests to the other institutions must of necessity, under the provisions of the statute of I860., be reduced one-half, that the bequest to Iv.es Seminary should also be reduced one-half.

It is .not believed that the defendant Encina M. Ives is estopped from taking under the will, by reason of her attitude in réspeet to it, or in respect to this litigation. When the will and codicil were offered for probate she made no- objection; she commenced no action to hav.e the will or any of its provisions declared void. ■ The executor, as before stated, commenced this action, and made her a defendant. She then, through her Counsel, made certain suggestions by her answer and upon the trial, which would present the legal questions involved, uniting substantially with the plaintiff in asking ■that the provisions of the will and codicil be interpreted in accordance with the laws of the state: This is not a contest on her part, within the meaning of the will, and she is, therefore, not precluded from talcing under its provisions. ,

ETeither has'her action in respect to the property since the decease of the testator, in any way disqualified her from asserting her full rights. She continued to live in the house and upon "the farm where the "testator died, the use of which, by the terms of the. will; she was given during, her natural life. The term for" which the'farm was rfented having expired, and the executor having neglected" to make arrangements with another tenant, she assumed to do so with his full consent and authority. In other words, she made arrangements by which the fapn of which she was given the life use, shoiild be cared for, looked after and cultivated in a proper manner. Certain of the semi-annual payments had been made tó her-by the executor, but always, as appears by the evidence, under the express understanding and agreement between her and the acting executor, that the' receipt of such payments by her should in no way" affect" her rights under the will, or to the property of the -testator.

It follows that the exact" amount of the property, both real and personal, of which the testator died seized, should be "determined; that the amount of the costs allowed and directed to' be paid out of" the "estate should be deducted from the entire amount of such property; that one-half of the remainder of the estate should go to' and be paid to the following institutions named -in the will, to-wit:

Fifteen thousand dollars' to Ives Seminary.

Twenty-five seventy-fifths of the remainder of said one-half to the American Bible "Society. ' .

Twenty-five seventy-fifths thereof to the Missionary Society of the Methodist Episcopal Church.

Ten seventy-fifths thereof to thó Ereedmen’s Aid Society of the Methodist Episcopal Church.

Five seventy-fifths thereof to the Methodist Episcopal Hospital in the city of Brooklyn.

Five seventy-fifths thereof to the American Hniversity.

Five seventy-fifths thereof to the Board of Church Extension of the Methodist Episcopal Church.

It will be observed that after giving to Ives Seminary the $15,000, only 75 per cent, of the one-half of the testator’s property is specifically devised by percentages, and that the remainder of said one-half, to-wit: 25 per cent., is to be divided in the same proportion and so on as to each remainder indefinitely, but clearly it was the intention of the testator to dispose of his entire estate, and, therefore, it is proper that the one-half of the testator’s property remaining after the payment of the bequest to. Ives Seminary, should be distributed among the other institutions named. This result it is believed is accomplished in the manner above stated.

All of said bequests to' said institutions. above named should be paid out of the personal property of the testator. The balance of the personal property of which the testator died seized, after paying the bequests above named, should be paid to the widow, Lucina M. Ives. The widow is also entitled during her natural life to the use of the farm of the testator, situate in the city of Watertown, Jefferson county, FT. V., and she is also entitled to receive the personal property upon said farm and connected therewith, the household .furniture, etc., absolutely. All of the real estate of which the testator died seized, belongs to and should go to the defendants, the heirs and next of kin of the testator mentioned and described in the complaint, and after the death of the defendant Lucina M. Ives, the said farm described in the complaint should also go to and belong to said heirs and next of kin.

If the parties to this action do not agree as to the value of the personal property of which the testator died seized, or as to the value of the real estate of which he died seized, further proof may be taken upon that question, or a referee may be appointed to take the evidence in respect thereto.

Ordered accordingly.  