
    The People, App’lts, v. Alfred L. Simonson et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 28, 1891.)
    
    1. Will—Trusts—Suspension op power op alienation.
    Testator by his will gave a large sum to a hospital to be called by his name, and directed his executors to apply for a charter therefor, and, in case of the death of the longest lived of them before it was granted, gave the fund to the city of New York for such purpose. Four executors were named, of whom three qualified. By a codicil he revoked the bequest and applied it to founding a musical college, and directed that appropriate legislation be adopted to perfect its incorporation as near the plan with regard to the hospital as possible. Held, that the will was void as suspending the power of alienation beyond two lives in being.
    2 Same—Attorney-general.
    It is not the province of the attorney-general to enforce the rights of the next of kin where it is claimed that there has been malversation in office by trustees or executors.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment dismissing plaintiff's complaint.
    
      B. E. Valentine, for app’lts; J. T. Marean and E. Schenck, for resp’ts.
    
      
       Affirming 28 N. Y. State Rep., 97.
    
   Gray, J.

The institution of this action by the attorney-general of the state was with the object of establishing a testamentary trust for public and charitable purposes, under the provisions of the will of Samuel Wood, deceased. The complaint charged the executors of the testator with wasting, squandering and appropriating to their own uses a large part of the residuary estate, and with having undertaken, by collusive proceedings in the courts, to defeat the testator’s charitable provisions. The defendants in their answers objected, among other things, that the charitable trusts attempted to be created by the will were invalid. When the issues came on for trial the defendants’ counsel moved for a dismissal of the complaint, inasmuch as upon its face it disclosed no cause of action, for the reason that the disposition of the residuary estate, made by will and codicil, was void. The trial judge took that view of the complaint and dismissed it, and his decision has been sustained by the general term.

We think their judgments were right. The testamentary dis-1 positions in question were illegal, because they clearly contravened those provisions of the law which limit the period of time during which the ownership and power of alienation of estates may be lawfully suspended. That is the only proposition we are asked to review upon this record. The determination below, adversely to the claim of the People, concluded their action at once, whatever other questions were raised upon the pleadings or might have been discussed. The charges against these executors are most grave and may not be without foundation as to their administration ; but the testator’s next of kin are the persons affected and the law affords adequate remedy for any malversation in office by trustees or executors. That is not the province of the attorney-general in such cases.

By his will Samuel Wood gave his residuary estate to his executors in trust “ to create, endow and forever maintain an institution in the city of New York to be called ‘The Samuel Wood Benevolent Institute,’ ’’ and he directed them, upon his decease, to apply to the legislature for an act incorporating it, with power to take and hold real estate and “ to be governed as hereinafter provided.” He then proceeds to define the purposes and object for which that institution should be entrusted with the property to be conveyed to it by his executors. By a subsequent clause of the will, “ in order' to secure harmony, efficiency and unity in the management of said institute,” he appoints his executors its “sole and permanent trustees,” and required that “they be inserted in any act of incorporation as such trustees,” and provided that they should fill vacancies occurring in their body “so long as such institute shall exist as a corporate body or otherwise.”

By a codicil the testator makes changes in his.will and directs “ that the devise and bequest provided in my said will, with regard to the founding of “The Samuel Wood Benevolent Institute, * * * be changed and the provisions thus made therefor be applied to the founding of a musical institution, to bo known and called ‘The Samuel Wood Musical College.’ * * * It is my wish that a college of music be formed in the city of New York and that appropriate legislation and means be adopted to perfect the incorporation and general plan of the institution as near or similar to the plan or method given in my will with regard to the formation, of ‘The Samuel Wood Benevolent Institute.’ ”

For some undisclosed reason the testator, by this codicil, abandoned his previous testamentary scheme for a benevolent institution, the general purposes of which, beyond the care of certain relatives, contemplated the maintenance of a hospital, and he directed the creation of a college of music; but, as it is quite apparent from the language he used in changing the application to be made by his executors of his residuary estate, the college of music was to be incorporated and organized upon the same plan as the Benevolent Institute. He says that the provisions made for the latter were to be applied to the founding of the musical college; so that it would be the duty of the executors, in carrying out the later residuary scheme, to have recourse to the directions in the will, in relation to such matters as concerned the period of time within which the charter should be obtained, and the plan for the government of the corporation which the act of incorporation should prescribe.

The effect of this codicil is to substitute for the direction to the executors in the main will, to found and incorporate the Benevolent Institute described there, the direction to found a public institution with another object, namely, the musical education of the people. There was no revocation of the testator’s will effected, by the codicil, save only as to the nature of the public institution designed to be incoporated and endowed. The effect practically was to write into the will “ The Samuel Wood Musical College,” in the place of “ The Samuel Wood Benevolent Institute,” as the beneficiary intended for the residuary gift, and to apply to it the same provisions as to incorporation and for a plan of corporate management. We have then, as we had in the will, the case of a gift to an unincorporated, non-existent institution, as in Cruikshank v. Home for the Friendless, 113 N. Y., 337; 22 N. Y. State Rep., 738 ; an authority which I think must be controlling upon the disposition of this appeal. Since the case of Burrill v. Boardman, 43 N. Y., 254, the non-existence of the corporate object of the testator’s bounty cannot be urged as a fact of itself sufficient to defeat a testamentary trust. In that case the residuary bequest was for the founding- and maintenance of the Roosevelt Hospital, in Hew York city. The trustees were directed to apply to the legislature for an act of incorporation and a limitation of two lives was inserted in the gift as the time within which the legislature must act; failing which action a gift over was made to the United States government. In that case it was determined, as a new question, that the non-existence of the corporation intended as the object of the testator’s bounty would not defeat his gift, if the incorporation was directed to be effected within the period allowed for the vesting of future estates.

An executory bequest to the use of a corporation so to be created was upheld as valid. That case was a very pronounced departure from what was supposed to be the rule governing charitable bequests. The principle of the decision was that the bequest was not one to take effect as a gift in presentí upon testator’s death, but was limited to take effect upon the formation of the corporation designed; and as the contingency upon which the limitation depended was possible and must happen within the period allowed by the law for the vesting of future estates, the bequest was as good in law as though it had been' to the use of an unborn child. The application of that legal principle prevented the avoidance of the bequest on the grounds urged, by Judge Comstock, the appellant’s counsel, that the corporate donee was uncertain, and that the doctrine of charitable uses could not be invoked in its support. The decision was placed without the sphere of that argument and within the doctrine and rules of law which govern in cases of executory bequests. Since that case to the present day, through various decisions of this court, of which Shipman v. Rollins, 98 N. Y., 311, and Cruikshank v. Home for the Friendless, 113 id., 337; 22 N. Y. State Rep., 738, are prominent exponents of our views, the non-existence, or non-incorporation of the corporation designed by the testator cannot be considered as facts determinative of the invalidity of the testamentary bequest. The question of validity is to be determined by a consideration of whether the conditions of the law are met as to the vesting of estates. Those conditions are to be strictly maintained and their violation sedulously guarded against. Since the decisión of Bascom v. Albertson, 34 N. Y., 584, which definitely held that the English law of charitable uses had been cast off in this state, it has been no longer open to question that a trust, or a use, is only valid when within our statutes which regulate the creation of uses and trusts and the period within which the ownership and the power of alienation of estates may be suspended. They constitute the sole guide in determining the validity of all trusts. The effect of the decision in Burrill v. Boardman, supra, was to extend the protection of the statutes to cases of executory bequests where the corporate beneficiary, in which the equitable title was to vest, might be non-existent; and to sustain the trust because the corporation was possible of creation and could take within the lawful period for the vesting of future estates. ■ The intended beneficiary, if capable of being incorporated under the law, in the manner and for the purposes described by the testator in his will, would not be obnoxious to the particular objection of indefiniteness.

In the recent case of Cruikshank v. The Home for the Friendless, supra, the executors were to apply as soon as practicable to the legislature for an act incorporating the home. The trust was held incapable of being sustained, for the reason that the incorporation was dependent upon the will of the legislature, and its consent, however reasonably to be anticipated, nevertheless, was not a certain result of the application to be made to it, and there would be a period of delay contingent upon the action of the state and not measured by lives.

In the present case it is contended that as at the time of testatator’s death a general law bad been enacted and was in existence, authorizing the kind of corporation mentioned by the testator, there was no necessity of applying to the legislature for a charter. The law referred to is contained in chapter 176 of the Laws of 1875, and was passed by the legislature before the making of the codicil and undoubtedly comprehended the several objects designed to be promoted by the testator by the use of his residuary estate. If the bequest were to a corporation to be created by the trustees of the will and which could be at once incorporated and organized under that general law, a new and interesting queS' tion would be presented. It might very well be said, in such a case, that as it would be the duty of the trustees of the will to act at once in procuring the incorporation, the delay in the incorporation would be but a mere incident to a certain result. Robert v. Corning, 89 N. Y., 225 ; Cruikshank v. Home for the Friendless, supra. The argument of appellants’ counsel upon this subject would find some apparent support from the reasoning in the opinions in the cases of Burrill v. Boardman and Cruikshank v. The Home for the Friendless.

If by the terms of a testamentary gift in trust of property its ownership must be necessarily uncertain for a period of time not measured by the statutory lives, the statute intervenes and condemns it. But where the delay is merely incidental and caused by the formalities and details of incorporation of the body to take, and its creation is possible and certain to be effected under the general law, in accordance with the directions of the testator, it might present a fair question whether the law would be violated, if we apply to such a case the principles stated in the opinions in Burrill v. Boardman and Robert v. Corning. But we are not called upon to decide that question now. Such is not the case before us.

It was argued in the Cruikshank case, in the endeavor to save the trust, that the home might be incorporated under the general law; but the argument was ineffectual. We held that the testator had not intended such a corporation, but had specifically required one formed under a special charter and that we could not substitute something different and outside of his expressed purpose. In the present case the same difficulty arises, if we would strive to sustain the trust for the musical college. The general law, enacted in 1875, requires incorporation under its provisions upon a different plan. The corporation to be created must have not less than seven trustees, whereas the testator here requires that the management shall be by his three executors as “sole and permanent trustees,” and provides for their being a self-perpetuating body. This requirement is in an especial clause of the will, following after the direction for the creation of the benevolent institute. It appears to be of the essence of the testamentary scheme and is the mode of government referred to in the previous direction for the creation of the institution by the language “to be governed as hereinafter provided.” These provisions are not revoked by the codicil, neither actually nor constructively. On the contrary, they are explicitly retained and made applicable to the institution substituted by the codicil in the place of the one mentioned in the will.

Thus, if we consider the argument that the musical college could be incorporated under the act of 1875 and thereby become competent to take-the testamentary gift, we are met by the difficulty that the restrictions of that act make it inappropriate to the testator’s design, an objection, which, under our decision in the Oruilcshank case, cannot be disregarded and passed over. If the argument is that appropriate legislation may be had, modifying the general law in the respects desired by the testator, so as to permit of the incorporation, we would still encounter the objection stated in the Cruikshank case that the creation of the corporation would be dependent upon the will of the legislature; and, hence, a delay would be certain to ensue, contingent not upon lives, but upon the consent of the legislative body, which might be withheld. As the period of time for obtaining a charter for an institution, of similar design in plan or method to that required for the benevolent institute, was limited by the testator to be within the life of the longest liver of his executors, of whom there were three named in the will, and in the codicil the number was increased to four, the delay in the vesting of the bequest would exceed that permitted by the law, which limits the suspension of ownership and of the power of alienation of property to two lives in being.

These views lead to an affirmance of the judgment. The respondents should have their costs of the appeal to he paid by the appellants.

All concur.  