Opinion
November, 1901.
Weil Weil, for plaintiff.
Robert Imrie, for De Witt C. Hay Library Association.
Redding, Kiddle Greeley, for U.S. Cremation Co., Limited.
C.S. C.C. Lester, for Saratoga Hospital.
De Forest Brothers, for N.Y. Infirmary for Women and Children.
Rogers, Atwell Rogers, for Camp, Trustee, and Presbyterian Society of Sacket Harbor, N.Y.
W.J. Townsend, for Tarrytown Historical Society.
O.F. P.P. Davis (Oscar Englander, of counsel), for Mary G. Ames.
W. De Graff, for Amy Beach Ewers.
Robert Imrie, guardian ad litem for Daniel Ferguson Imrie, an infant.
The plaintiff asks for a construction of the will of Marietta P. Hay. The will is dated December 27, 1900, and the testatrix died February 13, 1901. The defendants, De Witt C. Hay Library Association, the Saratoga Hospital and the New York Infirmary for Women and Children, are among the beneficiaries named by the testatrix. As these corporations were organized under statutes (Laws of 1848, chap. 319, § 6; Laws of 1875, chap. 343, § 5) prohibiting them from taking devises or bequests made in wills executed less than two months before the death of the testator, the bequests made to them must fail. See Stephenson v. Short, 92 N.Y. 433; Hollis v. Drew Theological Seminary, 95 id. 166. The charter of defendant United States Cremation Company, Limited, provides that the company may take by devise or bequest "land, tracts, buildings, machinery, rights or chattels" for the purposes of incorporation or any of them; and the purpose of incorporation is "to cremate the human dead in the quickest, best and most economical manner." Although the testatrix, in making the bequest to said corporation, did not in any manner limit the gift, it would seem a fair implication that the gift was made for corporate purposes. If this conclusion is correct, the legacy to said corporation is valid. The testatrix gave certain property in trust forever, the income to be used for the purchase of new books and works of art "for the Pickering and White Library and Chime Tower, and care of the same and for no other purpose whatever"; and also gave other property in trust, the income each year to be used "to keep chime tower and bells in good condition and aid in playing said bells at Sacket Harbor, N.Y." It appears that the tower referred to is part of the church of the Sacket's Harbor Presbyterian Society. Prior to the enactment of chapter 701 of the Laws of 1893, there is no doubt that these trusts designed by the testatrix would be invalid. The Court of Appeals has held (Allen v. Stevens, 161 N.Y. 122) that the act named has restored the ancient law touching charitable uses for indefinite beneficiaries, and under such liberal construction the trusts made by the testatrix are valid. The objects of the trusts are educational and religious within the meaning of the statute of 1893. The bequests to the Tarrytown Historical Society are also valid. This new society was organized for the express purpose of receiving the bounty of the testatrix, and there is not the slightest doubt that the testamentary dispositions were made for its benefit. The question raised as to the existence of the old corporation ought not to defeat the gift. The restriction of the act of 1848 (chap. 319, § 6) does not affect corporations organized under chapter 559 of the Laws of 1895. Matter of Lampson, 161 N.Y. 511; Pritchard v. Kirsch, 58 A.D. 332. The testatrix bequeathed a part of her residuary estate directly to "Pickering White Library and Chime Tower and Bells at Sacket's Harbor, New York." There is no such person or persons, either natural or artificial, as the said library and tower and bells. Even under the liberal construction given by the Court of Appeals to the act of 1893 before referred to, it does not seem that this disposition can be upheld, and it must be declared invalid. The gifts to Amy Beach Ewers, Mary G. Ames, Daniel Ferguson Imrie and Rosetta Beaman are valid. The legacies to United States Cremation Company, Limited, Tarrytown Historical Society, Allen C. Beach and Walter B. Camp, trustees; Mary G. Ames, Rosetta Beaman, and to Amy Beach Ewers, in so far as the same consist of securities, are general legacies. Tifft v. Porter, 8 N.Y. 518; Holt v. Jex, 48 Hun, 528; Newton v. Stanley, 28 N.Y. 61; Brundage v. Brundage, 60 id. 544; Matter of Van Vliet, 5 Misc. 169. Under the general residuary clause of the will, the illegal bequests fall into the residuary estate (Booth v. Baptist Church, 126 N.Y. 215; Matter of Benson, 96 id. 499; Riker v. Cornwell, 113 id. 115), and the void bequests to residuary legatees go to the next of kin. Settle decree on notice.
Judgment accordingly.