
    CRUIKSHANK v. HOME FOR THE FRIENDLESS.
    
      N. Y. Supreme Court, First District, Special Term;
    
    
      February, 1887.
    1. Suspension of power of alienation. . Gift to society to be incorporated after testator's death.] A gift of testator’s residuary estate, consisting of real and personal property, to Ms executors, in trust to employ the same or the proceeds thereof to the establishment, support, and endowment of a charitable institution, to be located in the city of Hew York, and to be styled with a designated name, the objects of such institution and the class of persons to be relieved and benefited being expressed to be similar to the objects and recipients of a designated existing charitable institution, the executors being authorized and directed to apply to the legislature of the State of Hew York as soon as practicable for an act of incorporation of the same; and being further authorized and empowered to make all such by-laws and ordinances relating to the management and government of such institution, and further to do and perform all such acts and deeds as shall in their judgment and discretion most promote and effect the testator’s benevolent and charitable intentions, is, where the acts to be so performed are not limited upon the duration of any lives in being at testator’s death, void as creating a perpetuity, the suspension of the power of alienation and of the absolute ownership being indefinite and dependent upon the action of the legislature in granting a charter, as well as of the executors in applying for an act of incorporation.
    2. The same.} A provision in a codicil to such will recommending and directing the executors to apply for and obtain the act of incorporation within ten years after testator’s death, if possible, but as early as practicable, and authorizing them to make application to the Supreme Court for such orders as shall enable them to carry out testator’s intentions by amending the form or expression of the devise so as to prevent it from being inconsistent with any law or statute, is ineffectual to preserve or validate such provision, as the court has no power to manufacture testamentary instruments or amend illegal dispositions of property.
    3. The same.} Under a subsequent provision that “in the event that this bequest and devise of my residuary estate should be adjudged or prove invalid, or its execution be impossible, either by judicial decision or from any other cause, that then all the real and personal estate bequeathed and devised thereunder shall be sold, and the proceeds of such sale shall be equally divided and paid over ” to certain charitable and religious institutions mentioned in former parts of the will—the bequest and devise to such institutions take effect immediately at testator’s death, and are valid, the word ‘1 then ” being synonymous with the phrase “ in the event.”
    4. Wills; equitable conversion.} In such case the direction for a sale and distribution of proceeds to the institutions named works an equitable conversion of the real estate for the purposes of division, and consequently rents and profits intermediately accruing become'a portion of the fund passing to such beneficiaries.
    5. Wills-, cy pres power.] A provision in a will authorized and empowered the executors “if they or their counsel in the law shall deem it to be expedient or requisite, to make an application to .the Supreme Court of the State of Hew York for such order or orders in the matter as shall enable them to perform and carry out my intentions by so amending tile form or expression of such devise as far as may be necessary to prevent it from being inconsistent with any law or statute of said State, and in that case I hereby authorize them to perform and execute such order or orders, which as far as necessary to secure and establish the validity of said devise, I hereby accept and assume as a modification and qualification of said devise as though the same were herein fully expressed." Held, that as the cypres power is not exercised by the courts of this State, which have no power either to manufacture testamentary instruments or to amend illegal dispositions of property, the provision was inefliectual to sustain an attempted devise and bequest, which violated the statutes against perpetuities.
    Trial by the court.
    James Cruikshank brought this action as executor of the will of John F. Delaplaine, deceased, against the devisees and legatees named in said will and the heirs at law and next of kin of the testator, to obtain a judicial construction of said will and to judicially determine the validity of certain of its provisions.
    The testator died in 1885, seized of both real and personal property, and leaving a last will by the earlier clauses of which certain specific provisions were made for designated beneficiaries, and by the ninth and tenth clauses of which the sum of nine thousand dollars was directed to be set apart to be equally divided between nine designated charitable and benevolent societies. The eleventh clause of the will was as follows:
    “Eleventhly. Whereas, I am unmarried, and haveno direct heirs to my estate other than my said two nieces, brother and sisters, for whom I entertain a sincere affection,' hut who possess ample wealth and whose happiness would not, in. my opinion, be increased by their receiving more than I have already given to them, I therefore decide to follow the impulses of my own heart, and to make such disposition of the remainder of my property as my sense of duty and desire of usefulness both urge and induce me. Accordingly I hereby give, devise and bequeath to my executors hereinafter named all the rest, residue and remainder of my estate, both real and personal, in trust, nevertheless to apply and dispose of the same in the man. ner and for the purposes hereinafter expressed and set forth. 1 direct, authorize and require them to apply and employ such estate, both real and personal, or the proceeds arising from the sale of all or any part of the same (which I hereby empower them to make at such time or times as they shall deem expedient or advantageous) to the establishment, support and endowment of a charitable institution to be located in the city of New York, tobe styled or named ‘ TheDelaplaine Institute for the Belief of the Friendless.’ My desire is, that the object of the same, and the class of persons to be relieved and benefited thereby, should be similar to the object and to the recipients of the charity of the institution in- the city of New York now known as 6 The Home for the Friendless,’ my wish being to make it similarly useful. I authorize and direct my executors to apply for and obtain from the legislature of the State of New York, as early as practicable an act of incorporation of the same, and I also fully authorize and empower them to make all such by-laws and ordinances relating to the management and government of the same, and further to do and perform all such acts and deeds as. shall in their judgment and discretion most promote and effect my benevolent and eharitaable intentions. It is, moreover, my will and desire, that in the event that this bequest and devise of my residuary estate should' be adjudged or prove invalid, or its execution be impossible, either by judicial decision or from any other cause, that then all the real and personal estate bequeathed and devised thereunder shall be sold, and the proceeds of such sale shall be equally divided and paid over to the nine charitable and religious institutions mentioned in the ninth and tenth clauses of this my will, also the American Bible Society and the American Missionary Association.”
    By a codicil to the will testator provided with reference to the same subjeet as follows:
    “ Seventhly. In order to obviate, as far as I may be able, any chance or possibility that the devise to my executors in trust of my residuary estate for the establishment and endowment of an institute for the relief of the friendless be delayed or defeated by reason of any uncertainty or limitation therein expressed, or any defect therein, although it is my belief and intention to have effectually guarded against such event by my having invested my said executors with absolute power to do and perform all such acts and deeds as shall in their judgment and discretion most promote and effect my intentions, I now further recommend and direct my executors to apply for and to obtain if possible the act of incorporation, as in my will mentioned, before the expiration of ten years after my decease, while I repeat my desire that they endeavor to obtain it as early as practicable; and I further hereby authorize and empower them,if they or their counsel in the law shall deem it to be expedient or requisite, to make an application to the Supreme Court of the State of New York for such order or orders in the matter as shall enable them to perform and carry out my intentions, by so amending the form or expression of such devise as far as may be necessary to prevent it from being inconsistent with any law or statute of said State, and in that case I hereby authorize them to perform and execute such order or orders, which, as far as necessary to secure and establish the validity of said devise, I hereby accept and assume as a modification and qualification of said devise as though the same were herein fully expressed.”
    The complaint alleged that questions and doubts had arisen as to the true construction of the. eleventh clause of the will and the seventh clause of the codicil, and as to the validity of the provisions thereof, and asked the judgment of the court as to whether the provisions for the establishment and endowment of a charitable institution to be styled “ The Delaplaine Institute for the Belief of the Friendless ” is valid, and how far and to what «extent; whether an equitable conversion of testator’s real property into personal property was effected for such purposes; and whether in the event of such provision being invalid, the societies named in the ninth, tenth and eleventh clauses of the will were entitled to receive the legacies bequeathed to them in such event. The answers of certain of the societies referred to and of certain heirs at law and next of kin of testator claimed that the provision for founding the Delaplaine Institute was void as attempting to create a perpetuity, and the latter further claimed that the gift over to the eleven societies was void for the same reason.
    
      M. H. Cardozo (Billings & Cardoso, attorneys), for plaintiff.
    
      E. T. Bartlett (Bartlett, Wilson dh Hayden, attorneys), for defendant, The Home for the Friendless.
    
      Dunning dh Fowler, for defendant, The Society for the Relief of Respectable Aged Indigent Females.
    
      Hojgjpin dh Talbot, for defendant, The Woman’s Hospital.
    
      Eddards dh Odell, for defendant, The N. T. Magdalen Benevolent Society.
    
      James A. Briggs (Devlin dh Miller, attorneys), for defendant, The Roman Catholic Orphan Asylum.
    
      Hash An Hingsford, for defendants, The Demilt Dispensary, and The St. Luke’s Home for Indigent Christian Females.
    
      Austin Abbott (James MeG. Smith, attorney), for defendants, The American Home Missionary Society, The American Board of Commissioners for Foreign Missions, and The American Missionary Association.
    
      Chernies E. Tracy (C. D. Bidgway, attorney), for defendant, The American Bible Society.
    
      L. B. Chase, for defendants Julia A. Chase and Edward Chase.
    
      G., B. Schieffelin, for defendants Julia M. Schieffelin and others.
    
      
      Wm. L. Findley, for defendant Claribel Findley.
    
      Joseph A. Welch. for defendant Talbot W. Chambers.
   Beach, J.

The bill is filed for a judicial construction of the last will and testament of John F. Delaplaine, deceased. There is no ambiguity of expression requiring the ascertainment of testator’s intent, his wishes being plainly expressed and readily understood. The residuary estate is devised and bequeathed to executors in trust, to establish, support and endow an institution, to be located in the city of ¡New York, named “The Delaplaine Institute for the Relief of the Friendless.” The executors are directed to obtain an act of incorporation within ten years after testator’s death, with an expressed desire that they endeavor to obtain the charter as early as practicable. They are also authorized to apply to this court for such order or orders as shall enable them to carry out the plan, by amending the form or expression of the devise, as far as may be necessary, to present it from being illegal. In the event of this disposition proving invalid, a sale of the real and personal estate is directed, the proceeds to be equally divided and paid over to eleven specified charitable and religious institutions. By the ninth and tenth clauses of the will, nine thousand dollars is bequeathed to the executors, in trust, to pay the same within one year after testator’s death, in equal portions of one thousand dollars, to the then treasurers of nine named charitable or religious societies. The questions for adjudication involve the legality of the provision for “The Delaplaine Institute for the Relief of the Friendless,” and if invalid, what is the ultimate legal disposition of the residuary estate 1

The intent of testator to devote the residuum of his estate to charity is clearly indicated, while it is- equally apparent that his plan for the endowment and support of an institution bearing his name is within the statute against perpetuities. There is no limitation upon lives in being at his death, and the suspension of the power of alienation is indefinite, being dependent upon action of the legislature in granting a charter, as well as of the executors in applying for an act of incorporation. The adjudications are so numerous and well defined, it seems almost unnecessary to cite them, upon a conclusion so necessarily resulting from perusal of the eleventh clause. Those most directly in point are specified (Bascom v. Albertson, 34 N. Y. 584; Leonard v. Bell, 1 Supm. Ct. (T. & C.) 608 ; Levy v. Levy, 33 N. Y. 97). A portion of the opinion of the court, by Wright, J., in case last cited, merits quotation. “ It was a condition precedent to the devolution of the estate (which, by the express terms of the will was in the executors), that the congress of the United States, or the legislature of Virginia, should, by their action, signify an acceptance of the trust attempted to be created, and provide for its execution ; or that the Hebrew congregations (in case of the United States or the .State of Virginia declining to accept and execute the particular trust devolved on them) should obtain the necessary legislation, to enable those congregations to hold the property and perform the trust alternately confided to them. The period during which these things are to be done is not legally defined or limited. The power of suspending the alienation of estates in land, and the absolute ownership of personalty is expressly limited by statute upon life. Life must, in some form, enter into the limitation ; and any other term of limitation, however short, is unlawful. Here certain acts arc to be done by congress or the legislature of Virginia, or other States, and the performance of these acts is a precedent condition to the devolution of the estate. Their peri formance is not limited in life. This is a limitation in contravention of the statute. ■ The legislative power might never be exercised. If exercised at any period after the. death of the testator, say within a year, and in that case would be valid, it would be valid, if exercised at the termination of one hundred years. The suspension of the estate would, therefore, in each case, depend, not on the statutory limitation, a life or two lives in being, but upon the' volition of some legislative body to be exercised at some indefinite time, or perhaps never to be exercised. The estate might thus be suspended, forever.”

The benevolent intention of the.testator is apparent and commendable, but its fruition is impossible, because the plan provided, so far as relates to a non-existent institution, contravenes the statute and an unbroken current of judicial interpretation. In my opinion, the eleventh clause of the will is void. The seventh provision of the codicil is also void. This court has no power either to manufacture testamentary instruments, or amend illegal dispositions of property. In Beekman v. Bonsor, 23 N. Y. 298, 311, Comstock, C. J., says: “ As judicial power is exercised in the interpretation of wills, and in establishing them as made by testators, and not in framing them, this ■ difficulty is incurable. In England the ey pres power would be exerted in such a case; and a scheme would be devised by a master of the court of chancery, or the crown would appoint the charity under the sign manual. In either mode of exercising' that power, it rests upon prerogative, and is a creative energy, which, ás we have seen, does not belong to our judicial system.”

The power of sale given under these provisions to the trustees, does not remove or nullify the controlling objection of their invalidity under the statute against perpetuities (Brewer v. Brewer, 11 Hun, 147; Hobson v. Hale, 95 N. Y. 588).

It becomes needful to consider the ultimate disposition of the residuary estate affected primarily by the specified portions of the will. This is controlled by a direction in the eleventh clause, that in event of the residuary disposition before considered being adjudged or proved invalid, or its execution be impossible, either by judicial decisions or from any other cause, that then all the residuary estate so devoted■ should be sold, and the proceeds equally divided, and paid over to eleven specified charitable or religions institutions. Upon- the trial, each of these showed itself competent to take. The first attempted disposition being void, it was so at testator’s death, and in nowise affected any legal devise or bequest to take effect in that event, The word <e then” used in the clause, worked no suspension of power to alienate, but is synonomous with the phrase “ in the event,” previously used. The bequest and devise to the institutions took effect at the testator’s death (Rice v. Barrett, 102 N. Y. 161; Fowler v. Depau, 26 Barb. 224; Schettler v. Smith, 41 N. Y. 328 ; Barnum v. Barnum, 26 Md. 119).

The direction for sale and distribution of proceeds to the institutions, worked an equitable conversion of the realty, for the purposes of division, consequently rents and profits intermediately accruing, became a portion of the fund passing to these beneficiaries, including the lapsed devise to Emily L. Fuller (Lent v. Howard, 89 N. Y. 169; Moncrief v. Ross, 50 N. Y. 431).

A decree is ordered to conform with these views.  