
    (56 Misc. Rep. 201.)
    FARMERS’ LOAN & TRUST CO. v. SHAW et al.
    (Supreme Court, Special Term, New York County.
    October, 1907.)
    1. Wills—Construction—Power of Appointment.
    Testator devised his residuary estate in trust to pay the income for life to A., and, on her decease, to convey the estate, or so much thereof as might remain, in trust to such persons as A. should have directed by her will, and, in default of a will, to convey on further trust to the same persons and in the same shares as if testatrix had died intestate. Reid, that there was a general power of appointment in A. without limitation.
    [Ed. Note.—For cases in point, see Cent. Dig. voi. 49, Wills, § 1654.]
    2. Same.
    A will established a trust, and gave a power of appointment to A., the beneficiary of the trust. A. died, leaving a last will under which the trustee of the first will was appointed executor and by which A. exercised in full the power of appointment. Reid, that the power of appointment “to such persons and in such manner as she' shall have directed’’ was not limited to natural persons, but included a foreign charitable corporation.
    3. Perpetuities—Suspension of Power of Alienation.
    Where a will created two separate trust funds for the benefit of persons in being at the time of the death of testatrix, such disposition was not invalid; the power of alienation not being suspended for a longer period than during the continuance and termination of two lives in being at the death of testatrix.
    [Ed. Note.—For cases in point, see Cent. Dig. voi. 39, Perpetuities, §§ 46-48.]
    4. Wills—'Nature of Estate—Trust.
    Though a gift to a foreign corporation expresses a desire on the part of testatrix that the fund should be treated as a memorial of one deceased, and used as a scholarship fund, it does not in any way limit or qualify the Absolute gift, and is not a trust not authorized by law.
    5. Same—Capacity to Take by Devise—Foreign Corporations.
    Laws 1894, p. 271, c. 136, providing that foreign corporations may take by devise any real estate in the state and hold it for not more than five years from the time the right of possession accrues, authorizes a foreign charitable corporation to hold real estate devised under a will.
    [Ed. Note.—For cases in point, see Cent. Dig. voi. 49, Wills, §§ 19, 21.]
    6. Same—Restrictions—Devise to Charity.
    Laws 1860, p. 607, c. 360, prohibiting the disposition of more than one-half an estate to charitable institutions, cannot be considered 'as affecting the validity of a devise by testatrix holding a power of appointment under a will under which she was a beneficiary authorizing the disposition of the trust fund, on the complaint of her husband, testatrix not disposing of her own property, but of the property of the original testatrix under the power of appointment.
    7. Trusts—Accounting by Trustee.
    AYhere a will creates a trust fund, the income to be paid to the beneficiary for life, with power in the beneficiary to dispose of so much as may remain in the manner that the beneficiary may by will direct, on stating the account of the trustee under the first will, there should be'turned over to him an amount sufficient to pay the debts of the beneficiary, the transfer tax on the property passing under her will and the expenses of administration.
    Action by the Farmers’ Loan & Trust Company against W. A. Shaw and others to construe a will. Judgment rendered. ,
    
      Turner, Ralston & Horan, for plaintiff.
    A. C. Cowan, for defendants.
   BISCHOFF, J.

Under the will of Catharine Ann Ten Eyck, so far as_ material to be considered, testatrix gave her residuary estate to plaintiff in trust to invest and pay over the net income during life to Mary E. Shaw, and in trust upon the decease of Mary E. Shaw “dispose of, convey and pass over all and singular the said trust estate, or so much thereof as may then remain, and to be held upon trusts herein declared, to such person or persons, and in such manner as she, the said Mary E. Shaw, shall have directed and appointed by any last will and testament duly executed by her, and in default of such will, or as to any of the trust property not disposed of by such will, upon the further trust to convey, pass over and distribute the said trust estate, or so much thereof as may then remain, to the same person or persons, and in the same shares and proportions as the law of the state of New York would designate, appoint and regulate had I then died intestate, and to his, her or their respective heirs, executors, administrators and assigns forever.” Catharine Ann Ten Eyck died, leaving certain of the defendants who would come within the clause to take in case of Mary E. Shaw’s failure to exercise the power of appointment given her and herein-above quoted, and to whom the former gave life legacies under her will. The plaintiff, as trustee, received from the executors of Catharine Ann Ten Eyck both personal and real property. Mary E. Shaw died about March 10, 1905, leaving her last will and testament under which plaintiff was appointed executor, and which was admitted to probate in New York county, and under which plaintiff has qualified. She owned no real property, and her personal property was less in amount than debts due from her. A transfer tax of $2,274.69 was fixed upon the property of Catharine Ann Ten Eyck which passed under the will of Mary E. Shaw. Under her will Mary E. Shaw exercised the power of appointment given her, and disposed of the whole estate over which she had authority.

The principal controversy is raised by the contention of certain of the defendants who would take undfer the will of Catharine Ann Ten Eyck and the statutes of distribution, provided the will of Mary E. Shaw does not pass, by virtue of the power given her, the remainder of the estate of the testatrix, and largely to determine as to whom plaintiff should distribute and pay over such residuary estate this action has been brought. In the absence of any statutory limitation of the power, it is clear that the language of the will of Catharine Ann Ten Eyck must be given its plain and ordinary meaning, and that such leaves it open to Mary E. Shaw to direct the transfer of any part or all of the fund referred to in the quoted paragraph of Catharine Ann Ten Eyck’s will, “upon the decease of said Mary E. Shaw to dispose of, convey and pass over all and singular the said trust estate, or so much thereof as may then remain and be held upon the trust herein declared to such person or persons, and in such manner as she, the said Mary E. Shaw, shall have directed and appointed by any last will and testament duly executed by her,” is plain, clear, and in no way ambiguous. This appointment must be read in determining its effect, as though it had been incorporated in the original will; the rule being that:

“The question of the validity of an appointment is to be determined by reading it as though contained in the original instrument conferring the power of appointment” Maitland v. Baldwin, 70 Hun, 267-272, 24 N. Y. Supp. 29, 32.

There does not seem to be the slightest indication, so reading the original will and that of Mary E. Shaw, of an intention on the part of Catharine Ann Ten Eyck to limit this power of appointment to her heirs at law and next of kin. She did, it is true, provide for her heirs at law and next of kin in the contingency of the nonexercise of the power of appointment by will, or as to any of the trust property not disposed of by such will, and, indeed, expressly said that “in default of such will, or as to any of the trust property not disposed of by such will,” the property should be held upon the further trust to convey, pass over, and distribute to the certain heirs at law and next of kin or class as therein specified. It was therefore a general power of appointment without limitation. Cutting v. Cutting, 86 N. Y. 522. The intent of the testatrix, Catharine Ann Ten Eyck, to give this unlimited power of appointment to Mary E. Shaw is so clear in view of the language used that the citation of further authorities seems needless, particularly under the well-settled rule that effect must be given to the clear intent of a testator as indicated by the language used. The contention that the residuary property could be paid over only to natural persons who were nominated as remaindermen by Mary E. Shaw also seems to be entirely disposed of by the language of the fourth clause of the will of Catharine Ann Ten Eyck, which says, “to such person or persons, and in such manner as she, the said Mary E. Shaw, shall have directed,” and which can have no limitation to natural persons only in the absence of language expressly so limiting the meaning of the word “person.” Matter of Fox, 52 N. Y. 530, 11 Am. Rep. 751; Pembina Mining Co. v. Pennsylvania, 125 U. S. 189, 8 Sup. Ct. 741, 31 L. Ed. 650. In the last case cited it is said:

“Under the designation of person there is no doubt that a private corporation is •included. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name- and have a succession of members without dissolution. As said by Chief Justice Marshall, ‘the great object of a corporation is to bestow the character and properties of individuality on a collective and changing body of men’ ”—citing: Providence Bank v. Billings, 4 Pet. (U. S.) 514, 7 L. Ed. 939.

The testatrix, Catharine Ann Ten Eyck, created two separate trust funds of the sum of $10,000 each for the benefit of the defendants Annie Johnson and Sarah Porter, both of whom were conceded to have been in being at the time of the death of Catharine Ann Ten Eyck, one of whom was the mother of Mary E. Shaw, and the other a beneficiary under the Ten Eyck will. These dispositions were valid under the statutes, and the power of alienation was not suspended beyond the statutory period computed from the time of the death of Catharine Ann Ten Eyck; that is, for a longer period than during the continuance and until the termination of not more than. two lives in being at the date of the instrument containing such limitation or condition, or, as in the case at bar, for not more than two lives in being ,at the death of the testatrix. 1 Rev. St. (1st Ed.) p. 773, pt. 2, c. 4, tit. 4, §§ 1, 2; Real Prop. Law, Laws 1896, p. 583, c. 547, § 158_ Hillen v. Iselin, 144 N. Y. 365, 39 N. E. 368.

_ The contention that the gifts of remainders after the life estate of Mary Johnson and Sarah Porter to the Tuskegee Normal and Industrial Institute are void as being trusts not authorized by the statutes of this state seems to have no merit. The gifts to the Tuskegee Institute of the two remainders, one of $5,000 and the other of $10,-000, are by the terms of the will absolute gifts, and without qualification. There is nothing to indicate by the terms of the will that the Tuskegee Institute was not to become the absolute owner of these residuary funds. It is true that a ^clause in the will relates to treating this fund as a memorial to Ethel Shaw, and to its use as a scholarship fund, but- such can be considered as nothing more than the expression of the desire on testatrix’s part.Rs to the use to which such money was to be put, and it does not in any way limit or qualify the absolute gift. Raney v. Laing, 58 Barb. 453; Matter of Zimmerman, 84 N. Y. St. Rep. 395, 50 N. Y. Supp. 395. This gift being absolute, the contention that the institute is not authorized to take the property for any such limited purpose falls, as well as the question raised that, if male-students are entitled to attend the institute, the limitation of the use of such property to female students renders the bequest void. The fact that chapter 136, p. 271, Laws 1894, which provides that “any foreign corporation * * * may take by devise any real property situated within this state and hold the same for not exceeding five years * * * from the time when the right to possession thereof passed into such devisee and convey it by deed or otherwise in the same manner as a domestic corporation,” was in effect at the time of the death of Mary E. Shaw, and that the possession of the real property in question herein was then in the Farmers’ Loan Sr Trust Company, as trustee,1 effectually disposes of the contention that the Tuskegee Institute was not competent to hold real estate because it was a foreign corporation. It certainly cannot by any rule of construction be claimed that the Tus.kegee Institute took any interest or estate, either present or by way of remainder, in this property until after the act of 1894 had gone into effect, as it took by virtue of the will of Mary E. Shaw, and Mary E. Shaw died in 1905. Matter of Stewart, 131 N. Y. 274, 30 N. E. 184, 14 L. R. A. 836; Richards v. Hartshorne, 110 App. Div. 650, 97 N. Y. Supp. 754. Mary E. Shaw’s husband, whom she left surviving, has no right to invoke to his advantage chapter 360, p. 607, Laws 1860, which prohibits the disposition of more than one-half of an estate under certain conditions to charitable and benevolent institutions, Mary E. Shaw not disposing of her property, and the statute in question could have no application to her applying the power of appointment given to her under the will of Catharine Ann Ten Eyck. The statute invoked provides that:

“No person having a husband * * * shall by * * * her last will * * * devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half and no more.”

Mary B. Shaw was not disposing of her property, but was by her power of appointment disposing of the property of Catharine Ann Ten Eyck. The object of this statute undoubtedly is to protect the persons who would be the natural recipients of the bounty of the testators, and would benefit by an intestacy- on the part thereof, and hence can have no application to the case of an exercise of a power such as was given to Mary E. Shaw. The mere fact that Mary E. Shaw had this power of appointment over the property gave her no estate therein. She was not the owner of the property, and could convey the fee only in the exercise of the power given by the will. Dana v. Murray, 122 N. Y. 604, 26 N. E. 21; Eells v. Lynch, 8 Bosw. 465.

No other question presented by defendants requires serious consideration, and findings should be submitted providing for a referee to take and state the account of plaintiff as trustee under the last will and testament of Catharine Ann Ten Eyck in the usual form, and for turning over to the plaintiff an amount sufficient to pay the debts of Mary E. Shaw, the transfer tax upon the amounts passing under her will, and sufficient to pay the expense of the administration of the estate of Mary E. Shaw to the Farmers’ Loan & Trust Company as executor of the last will and testament of Mary E. Shaw, and providing for the distribution of the balance of the funds as directed in the last will and testament of Mary E. Shaw.

Judgfiient accordingly.  