N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al.

them to the purchase and distribution of Common Prayer Books; revoked the bequest to the Theological Education Society, and gave the same to his trustees, in trust, to pay and deliver the same to any Theological School, Seminary or College in this State, formed by the authority of the General Convention of the Protestant Episcopal Church of the United States, for Theological education, at the death of the testator, or within twenty-one years after the death of the last surviving annuitant, in trust, to apply the same to the education of one of his kindred for an Episcopal clergyman, or in default of there being any one fit for such ministry, then to compensate a lecturer on the truth of Christianity during the sittings of the Episcopal Convention. The fund was to accumulate during such portion of the twenty-one years, as such institution was not in existence, and the whole was to lapse, in case of a failure of such institution to exist, into the residue of his estate.

In the year 1824, the testator having purchased some land at NewUtrecht, made a second codicil, by which he directed that to go into the residue of his estate. The trustees named in the will never acted, and letters of administration with the will annexed were granted to the defendants, Andrews and Destowe.

A bill was filed by some of the nephews and nieces of the testator, on behalf of themselves and all other residuary legatees, to procure a construction of the will and distribution of the estate; the last annuitant having died in December, 1844.

At the death of the testator there was a Theological Seminary as described in his will, which is still in existence, incorporated in April, 1822, without any specification of its powers or capacities. The Auxiliary Bible and Common Prayer Book Society was also in existence at the death of the testator, but the charter of the latter expired in 1837, before the death of the last annuitant; but a new society was incorporated in the year 1841, which is still in existence by the name of" The New-York Bible and Common Prayer Book Society"; the former, before its charter expired, assigned to certain trustees all their property, on trust, to assign the same to any society established for similar purposes. These two incorporations claimed the several legacies given to such societies in the will.

The cause was heard before the assistant vice-chancellor, (Robertson,) who decreed as follows:

That the lands in the will and codicils mentioned, were not converted into personal estate by the will, and that the residuary devise to the children of the nephews and nieces of the testator were void as to such children as were living at his death, and were aliens; and that the shares or interests devised to such aliens descended to the heirs at law of the testator, if any of them should be competent to take, and if not, to the residuary devisees; and as to the residue of the residuary devise, that the same was valid, and ought to be carried into effect.

That the legacy of two thousand dollars bequeathed to the trustees of the Protestant Episcopal Theological Education Society in the

N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al. State of New-York, mentioned in the first codicil to the said will, and claimed by the General Theological Seminary, was void, as not being given on the trusts for which the said seminary is entitled to take and hold the same, and as not being given on such lawful charitable uses as are carried into effect in this State by law. And that the amount and increase of the said legacy ought to fall into the residuary personal estate of the testator; but as to the coins and medals in the said will and codicils mentioned, the bequest was valid, and the same ought to go to the said defendants, the General Theological Seminary aforesaid.

That as to the legacy in the codicil, bequeathed to the Auxiliary New-York Bible and Common Prayer Book Society of $1500, by the said codicil directed to be accumulated for twenty-one years after the death of the last of the four annuitants in the will named, or until the same should amount to five thousand dollars, that the same was void, as involving an unlawful accumulation and tending to a perpetuity, and that the amount of that legacy and its increase ought to form a part of the testator's residuary personal estate.

The defendants, the New-York Bible and Common Prayer Book Society, appealed from so much of his honor's decree as adjudged that the legacy bequeathed to the New-York Bible and Common Prayer Book Society of fifteen hundred dollars, and directed by the codicil bequeathing the same to be accumulated for twenty-one years after the death of the last of the four annuitants in the will named, or until the same should amount to five thousand dollars, to be void, as involving an unlawful accumulation and tending to a perpetuity; &c.

The defendants, the General Theological Seminary of the Protestant Episcopal Church, also appealed from that part of his honor's decree which adjudged that the legacy of two thousand dollars in the will bequeathed to the trustees of the Protestant Episcopal Theological Education Society in the State of New-York, mentioned in the first codicil to the said will, and claimed by the General Theological Seminary, was void, as not being given on the trusts for which the said Seminary is entitled to take and hold the same, and as not being given on lawful charitable uses as are carried into effect in this State by law.

Murray Hoffman, in support of the appeal of the New-York Bible and Common Prayer Book Society, made and argued the following points :

I. The assistant vice-chancellor decides against the validity of the bequest, on the ground that a term of twenty-one years after the expiration of a life or lives in being, is never allowed as a term in gross, but only where dependent upon minority.

The case is to be governed by the law before the Revised Statutes; the will and death being prior thereto.

The assistant vice-chancellor has overlooked the case of Bengough v. Edridge, 1 Simons, 173; affirmed in the House of Lords, 7 Bligh,

N. Y. Superior Court-N. Y. Bible and Com. Prayer Book Society v. Andrews et al.

N. Series, under the title of Cadell v. Palmer, (also 10th Bingham, 149.)

By the unanimous opinion of the judges and Lord Chancellor, it was settled that the limit is a life, or lives in being, and twenty-one years afterwards, without reference to the infancy of any person whatever." (Lewin on Perpetuities, Law Library, vol. 36.)

II.-1. The legacy vested in the Auxiliary New-York Bible and Common Prayer Book Society, before the expiration of its charter. [The will is dated Dec. 14, 1821. The codicil 3d Feb. 1822. The testator died April, 1827. The charter of the Society expired March 28th, 1837. 26th March, 1837, date of assignment to F. DePeyster and others. Assignment 1st July, 1837, to the defendants, N. York Bible and Common Prayer Book Society.] Thing v. Ring, 1 Watts, R. S. 205; Packman v. Gregory, 4 Hare, 396; Bech v. Burn, 7 Beavan, 492; Hammond v. Maul, 1 Colyer, Ch. Rep. 281; Goulbourn v. Brooks, 2 Y. & Wel. 592.

2. If the legacy was vested, then it was transmissible and assignable. Lewis v. Smith, 1 Iredell's N. C. Rep. 145.

3. And then it is the naked case of a failure of a trustee, which this court will supply. Gibson v. McCall, 1 Richardson's Rep. 174; Attorney Gen. v. Jolly, 1 Ib. Eq. Rep. 99.

So the defendants may take either by transfer or by appointment of the court as a proper trustee in the room of the former Society.

III. A guarded modification of the English doctrine of cy pres, is not condemned or forbidden by our authorities; is equitable in itself; is requisite to carry out a testator's intention; and is important to carry out and perfect the growing doctrine as to charities in our country. The English cases are of two classes: 1. Where the bounty has been diverted from the intended purposes of the giver, to those different from or repugnant to his principles.

2. When the bounty has been applied to the same purposes as the testator intended, identically, or substantially; but a different body or agent to administer it has been appointed.

Of the first class are such cases as Baxter's case, 1 Vernon, 248, noticed in Modgridge v. Thachwell, 7 Vesey, 73. Under the second head may be classed the following cases, Attorney Gen. v. Bouyer, 3 Vesey, 714; Attorney Gen. v. Wamsay, 15 Vesey, 231; Modgridge v. Thackwell, 7 Vesey, 69 and 13, Vesey, 116. See also Haybets v. Trego, 5 Russell, 113; Story's Eq. § 1176.

3. The doctrine thus modified is not opposed by any authority in the United States, and is supported by some.

The argument of President Tucker, in Gallego v. Attorney Gen., 3 Leigh, 473, does not affect it.

See argument of Mr. Sergeant in Vidal v. Girard's Ex., 2 Howard, 162; Gay v. Wilkite, 2 Dana, 170 Kentucky.

4. If a legacy is given to trustees to distribute in charity, and they die in the testator's life time, although the legacy is lapsed at law, (and if they had taken it to their own use it would have been gone forever,) yet it will be enforced in equity. Story's Eq. Jr., § 1166; Attorney Gen. v. Hickman, 2 Eq. Ca. Ab. 193; Mills v. Farmer, 1

N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al. Merivale, 55, 100; White v. White, 1 Br. C. C. 12; Walsh v. Gladstone, 13 Simons, 1 Phillips, 290, on appeal; Modgridge v. Thackwell, 7 Vesey, 69.

The learned counsel also, in support of the appeal of the General Theological Seminary, made and argued the following points :

I.—The testator intended that any society or incorporation substantially answering the description of a theological school, seminary or college within the State of New-York, formed or established under the authority, or with the approbation and consent of the General Convention of the Protestant Episcopal Church of the United States of America, for the instruction or education of young men intended. for the ministry in the said church, which might be in existence at the death of the last annuitant, should take the sum of $2,000 therein bequeathed.

II. The defendants in this suit were at the death of the testator, and on the 28th day of December, 1844, the day of the death of such last annuitant, an incorporated body, for such purposes, and formed with such authority and consent.

III. The bequest is a mere personal legacy, payable out of any funds in hand at the death of the last annuitant, whether personal estate, rents or profits, or proceeds of real estate. The decision of the assistant vice-chancellor treats it as a devise of land, which it is

not.

IV. If the legacy in question could not be paid out of the proceeds of real estate, then an account of the personal estate should be taken separate and apart, and if a surplus appears after payment of debts and funeral charges and expenses, such surplus should be applied in whole or in part to the payment of the pecuniary legacies.

And in taking such account, any debt of the testator secured by mortgage of real estate, should be treated as payable out of such real estate, and the proceeds thereof. Ram on Assents, 342, and cases; Attorney Gen. v. Thinchelsea, 3 Brown C. R. 381; Williams v. Kenshaw, cited 1 Keen, 244, n.; Rogers v. Rogers, 1 Paige, 188.

The bill admits that the personal estate was inventoried at $56,921 82.

V. The most unfavorable view which can be taken of the question is, to suppose the legacy payable out of the proceeds of real estate, directed or authorized to be sold by the trustees. It would then be a valid gift, even under the Revised Statutes; certainly before them. Orphan Asylum v. Mc Cartee, 9 Cowen, 438; Methodist Church v. Wright, 1 Hoffman's Rep. 202; Shotwell's Exec. v. Mott, 2 Sandford's Rep. 53.

VI.—The real estate was converted under the provisions of the will into personalty, so that all questions respecting the legality of the bequest are to be determined upon the basis of the whole fund being personalty. Methodist Ep. Church. 1 Hoffman's Rep.

VII. The legacy it is clear is perfectly well given, and the defendants, The Theological Seminary, are entitled to it, unless the

N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al.

clause respecting the power of the trustees under the will defeat the gift because those trustees refuse to act.

The legacy is absolute, to a party competent to take for an object recognized as lawful. Solier's Ex. v. St. Gaul, 12 Metcalf, 250.

The trustees under the will were to be trustees for every purpose, this included. Their other duties would necessarily cease at some period after the last annuitant came of age. Their duties in this re- . spect would last for an indefinite period.

But their office, viz., the participation in the selection of students under this part of the will, was in their capacity of trustees-as trustees, they were the donees of the power to select. Therefore a legal change of trustees of the will makes a legal change of persons to exercise the power-creates new donees of the power, so to speak. Manifestly, if the court had been applied to to appoint new trustees on the resignation of the old, the new ones would succeed to these powers under this clause, as well as to any other under the will.

This is the very thing now sought for by the present bill. It is to change or substitute new trustees to execute the will.

The law is laid down in the matter of Fitzgerald, and in other cases, 1 Lloyd & Goold, 20, 23, by Lord Sugden. Lord Sugden was the framer of the English act respecting trustees.

The law is explained by him as this: Before his statute new trustees could only be appointed upon the resignation, death or removal of former ones by a bill filed in the court, making all interested parties. By his act a petition was allowed for the purpose in certain cases. See also Lewin on Trusts, 473, Law Library, 24.

The case of Gibson v. McCall, 1 Rich. Law Rep. 174, and the Attorney Gen. v. Jolly, 1 Rich. Eq. Rep. 99, are very strong to this effect. They were decided in 1844. One great point settled is, that where the object of the trust is legal, the court will never let it fail, if for a charity, for want of a trustee. See also Shotwell v. Mott, 2 Sandford, 53; Kniskern v. Luthern Church, 1 Ibid.

Now it is, I submit, not only the right but the duty of the court, where trustees are made necessary by a party to effect a legal object, and those selected fail, to appoint new ones. It must be remembered in this case that the trust or office is not purely personal as if given to A, but is placed in certain official persons and their official successors.

The court might, therefore, appoint for this particular purpose some of the individuals now holding the situations specified in the will, and their successors in such situations.

Daniel Lord, for the respondents, the executors, made and argued the following points :

I.-1. The legacy to the Auxiliary New-York Bible Society was a gift, at the death of the last annuitant, until which time this legacy was not vested but contingent. Before the death of the last annuitant, the society expired. The legacy, therefore, if valid, lapsed.

2. The legacy, if for a charitable purpose, was yet to be adminis