Summary
In Nichols v. Newark Hospital, 71 N.J. Eq. 130 (Ch. 1906), testator bequeathed the residue of his estate to the Newark Hospital.
Summary of this case from Montclair National Bank & Trust Co. v. Seton Hall College of Medicine & DentistryOpinion
05-04-1906
NICHOLS v. NEWARK HOSPITAL et al.
Mr. Titsworth, for complainant. Cortlandt Parker, for Newark Hospital. Mr. Harris, Mr. Nichols, and Mr. Coe, for other defendants.
Bill by Joseph O. Nichols, executor of the estate of Joseph Nichols, against the Newark Hospital and others, for instructions as to the execution of the will. Cause referred.
Mr. Titsworth, for complainant. Cortlandt Parker, for Newark Hospital. Mr. Harris, Mr. Nichols, and Mr. Coe, for other defendants.
STEVENS, V. C. It seems to me that the principle upon which this ease is to be decided is clear. The "Newark Hospital" was incorporated by special act of the Legislature, approved February 27, 1857. P. L. p. 44. An organization under the charter was perfected shortly thereafter, but first the panic of 1857 and then the Civil War put a stop to the raising of the subscriptions necessary to put the hospital on its feet as a going charity. The corporation has never done anything more than organize. Most of its directors and all of its officers, with the exception of its vice president, are now dead. There does not, so far as the proofs go, seem to be a quorum for the transaction of business. By his will dated March 21, 1861, Joseph Nichols bequeathed and devised all the residue of his estate to the Newark Hospital, its heirs and assigns, and he described it as "a benevolent society lately incorporated by the Legislature of New Jersey." He died July 1, 1866. The residue, with its accumulations, now amounts to $24,812.78. Why the surviving executor did not file his bill for directions before does not appear and is not now material.
The question is, to whom shall the executor pay the money? That the Newark Hospital is a charity is admitted. Hadden v. Dandy, 51 N. J.Eq.154, 26 Atl. 464, 32 L. R. A. 625; Same v. Methodist Society of Ireland, 51 N. J. Eq. 330,30 Atl 429; American Bible Society v. Amer. Tract Soc., 62 N. J. Eq. 219, 50 Atl. 67. Its charitable object, as stated in the preamble of its act of incorporation, Is the "erecting of a general hospital in the city of Newark, fitting it with all proper conveniences and appurtenances and furnishing necessary attendance for the sick and disabled." This object it has, confessedly, never executed. It is now without funds, and without effective organization, and it is apparently incapable of doing any work. But nothing is better settled than that the law does not permit a charitable trust, capable of execution, to remain unexecuted for want of a competent trustee, and if the trust cannot be literally performed the court itself, to use the words of Judge Green in MacKenzie v. Trustees (N. J. Err. & App.) 01 Atl. 1036, "will apply the property as nearly as possible according to the donor's intentions, when those intentions cannot be exactly carried out." Pennington v. Metropolitan Museum of Art, 65 N. J. Eq. 11, 55 Atl. 468. If the present trustee of this charity cannot act, then it would appear that the donor's intentions can be effectuated, cy pres, by giving the fund to one or more hospitals in the city of Newark having the same object: viz., "the furnishing necessary attendance for the sick and disabled," and inasmuch as the seventh section of its charter provides "that no regulation of said directors shall allow of any preference being shown in the admission of patients or in granting relief to the sick or disabled on account of difference in religious faith or on account of the birthplace or parentage of the parties," it would seem that the designated hospital must be in a position to comply with this proviso.
There should be a reference to a master to ascertain whether the Newark Hospital is now able to execute the trust imposed upon it or will, within a reasonable time, be in a position to do so; and if not, then the master shall consider and report a scheme for the management and disposition of the trust funds upon the lines indicated in this opinion.