September Term, 1857
John Porter, for the plaintiff.
George Underwood, for the defendant.
The principal questions which arise in this case are: First. Whether the legacy bequeathed to "The Theological Seminary of Auburn" is valid as a testamentary bequest; Second. Whether the plaintiffs' charter authorizes them to take and hold the legacy, and execute the trust created by the gift; and, Third. Whether the defendant, as surviving executor of Daniel Kellogg, is liable to pay the legacy to the plaintiffs? The validity of the legacy is denied, upon the ground that it is limited to take effect on a contingency which is too remote, viz., an indefinite failure of issue; and, also, upon the ground that the legacy is repugnant to the previous absolute estate given to Chloe Hyde; and upon the ground that the power conferred upon her guardian, to apply all or any part of the testator's estate, as he shall deem necessary, for her maintenance, education and support, is repugnant to the bequest of such legacy. Neither of these objections to the validity of the legacy is well taken.
A will is to be so construed as to render, if possible, every part of it effective; and, in such construction, the intention of the testator must govern, in all cases, where effect can be given to it without violating the rules of law. It cannot be denied that the words in a will, made before the adoption of the Revised Statutes, "dying without lawful issue," standing alone, imply an indefinite failure of issue, and that, when employed in a devise of real estate as descriptive of the event on which such estate is limited over, they create an estate tail in the first taker, which the statute of entails would turn into a fee simple; and, in a bequest of personal estate, would give the first taker an absolute property therein, and that the estate limited over would be void, because limited to take effect on a contingency too remote. But where the testator has used language in his will which indicates that he meant, by the words "dying without lawful issue," issue living at the death of the first devisee or legatee, and not an indefinite failure of issue, then the devise or bequest over, limited to take effect on such failure of issue, will be valid as an executory devise or bequest. (20 John., 483; 16 id., 382, 435, 436; 2 Cow., 333, 392; 10 Paige, 151; 4 Kent's Com., 277, 278; 3 Ker., 280.) It seems that, in bequests of personal property, the American cases have relaxed the rule implying an indefinite failure of issue as applicable to devises of real estate, and have authorized the laying hold of slighter circumstances, in such bequests, than are allowed in devises of real estate, to limit the words "dying without issue" to issue living at the death of the first taker. (4 Kent's Com., 282, 7 th ed.) I think, in this case, that the testator has used language which indicates that he intended, by the words "dying without lawful issue," issue living at the death of Chloe, and not an indefinite failure of issue. He gives and bequeaths, on the death of Chloe without lawful issue, unto "The Theological Seminary of Auburn" the sum of $10,000, c., "to be paid to the said trustees, in four equal annual payments, after the death of the said Chloe." These words indicate an intention that the legacy is to take effect on her death, or not at all; for it is to be paid in four annual payments after her death; that is, the legacy is to vest on her death, and the time of its payment is to be computed from that event. The legacy is therefore not void because limited on the happening of a contingency which is too remote. The legacy is not void because repugnant to the previous absolute estate given to Chloe. It is a familiar and well settled rule, that an executory devise may be engrafted on a previous devise in fee. It is this circumstance which distinguishes contingent remainders from executory devises. (3 Kern., 285.)
Neither is the legacy void on the ground of the power conferred in the will upon the guardian to apply all or any part of the testator's estate, as he shall deem necessary, to the education and support of Chloe. There is no such repugnancy between this provision and the bequest of the legacy as to require the sacrifice of the latter, in favor of the former, upon the ground that it is evidence of the latest intention of the testator. The rule which sacrifices the former of several contradictory clauses is never applied, except where they are totally irreconcilable and cannot possibly stand together. In such cases, to prevent the invalidity of both provisions from uncertainty, the one last in local position will prevail, as denoting a subsequent intention. (2 Paige, 129, 130; 1 Jarman on Wills, 411, 412, 415, 416.) In this case, the two clauses are not totally irreconcilable. The provision conferring power upon the guardian to apply such portion of the testator's estate, in the support of Chloe, as he may deem necessary, is not an absolute disposition of the whole estate in favor of the guardian, nor does the provision confer upon him the power to dispose of the whole estate, if he thought proper to do so. The power actually conferred was merely that of expending so much of the estate as was necessary for the support and education of Chloe, during her minority; a power no greater than that which he, as guardian under the direction of the court, would have had at common law. The amount of the estate was sufficient to apply all that was necessary for the support and education of Chloe, without interfering with the bequest of the $10,000 to "The Theological Seminary of Auburn." Under the will, the guardian had no power to expend, for the support and education of Chloe, any greater amount of the estate than was necessary for that purpose, and the power to do this expired with her minority. No absolute power is given to the guardian to dispose of the whole estate. The large amount of the estate is evidence that the testator did not intend that the guardian should expend the whole estate, so as to defeat the legacy of $10,000.
The plaintiffs' charter authorizes them to take and hold the legacy for the purpose mentioned in the will. It declares that they shall be "capable in law of taking, purchasing, holding and conveying, both in law and equity, real and personal estate,"c., and gives them, the trustees (§ 3), the management of such estate, and power to sell and dispose of the same for the purpose of benefiting the funds of the institution, and of applying the avails of such funds to the purposes of the institution. The purpose of the institution, as declared in the preamble of the act, is the completion of the education of pious men for the gospel ministry. Section five provides for the appointment of tutors and professors of the institution. The testator gives the legacy in express terms "for the purpose of endowing a professorship in the seminary." This object is undeniably within the principal purpose of the institution, and an indispensable means to accomplish such purpose. The invalidity of the objection, that the bequest to the plaintiffs creates a perpetuity, is decisively established by the case of Williams v. Williams (4 Seld., 526). In that case it was decided that the provisions of the Revised Statutes, in relation to the accumulation of personal property, and to expectant estates in such property (1 R.S., 773, 774), do not apply to or affect property given in perpetuity to religious corporations incorporated under the general statute. The powers conferred upon the plaintiffs in their charter are as extensive as those conferred upon such corporations, and the object for which it was granted, viz., "pious uses," belongs to the same class of objects for which religious corporations are authorized by such general statute to be created.
I think that the defendant, as surviving executor of Daniel Kellogg, is liable to pay the legacy to the plaintiffs. The jury find specially that Daniel Kellogg, the executor of David Hyde, did not keep the funds of the estate of Hyde separate from his own private funds; and that they were absorbed in his own estate, and passed as such into the hands of his executors. There being a large surplus of the estate of David Hyde, after payment of debts and legacies, and over and above a sufficient amount necessary for the support and education of Chloe Hyde, it was the duty of Daniel Kellogg to have set apart, and invested in permanent securities, $10,000 of the funds of the estate, and to have paid the income to Chloe Hyde during life; to the end that the principal, on the happening of the contingency stated in the will, viz., the death of Chloe without issue living at her death, might be in a condition to be paid over to the plaintiffs. (2 Paige, 132; 2 Barb. Ch. R., 214.) The omission to do this was a neglect of duty. This neglect of duty on the part of the executor, in connection with the mingling of the funds of the estate of Hyde with his own private funds, and allowing them to be absorbed in his own estate, would have made him personally liable for the payment of the legacy to the plaintiffs, had he survived Chloe Hyde. This personal liability of Daniel Kellogg, and the passing into the hands of his executors the assets of Hyde, as a part of his own estate, are sufficient in law to create a direct liability on the part of such executors to pay the legacy to the plaintiffs. Besides, I think that Daniel Kellogg, in contemplation of law, held $10,000 of the estate to satisfy the legacy to the plaintiffs as trustee for them and Chloe, and not as executor. After all the debts and legacies were paid his duties as executor substantially ceased, and his duties as guardian and trustee supervened. Besides, assets of David Hyde, out of which the legacy to the plaintiffs is payable, are in the hands of the surviving executor of Kellogg, and I can see no good reason why he should not, in this suit, be directed to apply them in payment of the legacy. For these reasons I think that the plaintiffs have a remedy against the executor of Daniel Kellogg for the recovery of their legacy, and that it is unnecessary that letters of administration de bonis non, on the estate of David Hyde, should be taken out, in order to furnish the plaintiffs a remedy for the recovery of such legacy.
The first objection urged against the bequest claimed by the plaintiff is, that it is limited to take effect upon an indefinite failure of the issue of Chloe Hyde, and is consequently void for remoteness. The language used, independently of the words fixing the time of payment, is such as has often been determined to have that effect. Many of the cases are referred to in the very elaborate opinion of the late Supreme Court, delivered by Chief Justice SAVAGE, in Paterson v. Ellis (11 Wend., 259). The will under consideration in that case directed that, if the testator's daughter and legatee died before arriving at the age of twenty-one years, without leaving lawful issue, then the amount of the legacy should be distributed in the manner mentioned in his will as to the general residue of his estate. It was held, in accordance with many of the cases, but, in all probability, against the intention of the testator, that the bequest was absolute, the limitation over being considered as referring to an indefinite failure of issue, and therefore void upon the principle which I have mentioned. But the will we are now examining provides that, if the testator's daughter should die without issue, then he gave to the plaintiff $10,000, to be paid in four equal annual payments, after the death of his said daughter; and the question is, whether this does not so qualify the former language as to show that it was the failure of issue living at the death of his daughter which was intended? I am of opinion that it does so qualify it. It is settled that, where the nature of the ulterior bequest is such as to require the determination of the question, as to its taking effect, to be made after the death of the first legatee or devisee, it is then to be understood of a failure of issue at that time. Several cases have been adjudged upon that precise distinction. In Nicholls v. Hooper (1 P. Williams 198) there was a devise of lands to a person for life, remainder to her son, Thomas Jackson, and his heirs, provided that if the said Thomas Jackson should die without issue of his body, then the testator gave £ 100 a piece to his two nieces, A. and B., to be paid, within six months after the death of the survivors of the said mother and son, by the person who should inherit the premises, and in default of payment as aforesaid, then he devised the lands to the legatees in payment. It was held that the language which would generally have created an estate tail, on account of the personal provision for A. and B., should be taken to refer to a failure of issue at the death of Thomas Jackson. There are two other cases to the same general purpose, Doe v. Webber (1 Barn. Ald., 713) and Doe v. Frost (3 id., 546). In each of these cases the testator directed that, upon the death of the first devisee, without issue, sums of money should be paid, according to the directions of his last will; and this was held to indicate that the failure of issue provided for, referred to the time of the death of that devisee. The provision for payment, by the present will, looks, with at least equal distinctness, to the death of the testator's daughter as the time for determining whether her issue had failed, within the meaning of the will; for, as the first payment on account of the legacy was to be made in one year from that event, it would be absurd to suppose that the testator contemplated an indefinite failure of issue, which might happen one hundred years afterward, when it would be impossible to pay the legacy according to its terms The rules for determining this class of questions are very artificial, and the whole doctrine has been wisely abolished, as to future wills, by the Revised Statutes. In regard, however, to wills to which it still applies, a solution of difficulties can only be safely sought by an examination of adjudged cases. By adopting that test it appears that this limitation in favor of the plaintiff was to take effect upon the death of Chloe Hyde, if she left no issue living at the happening of that event; and, consequently, that the bequest over was a valid executory limitation.
But it is argued that the bequest to the plaintiff is repugnant to the devise and bequest to Chloe Hyde, and is void for that reason. There is, of course, nothing inconsistent in the idea that the whole residue is, in the first instance, given to Chloe, and that afterwards, upon the happening of a certain event, a part of it is given over to the plaintiff. This is an executory limitation of a very usual kind, and involves no repugnancy whatever. ( Norris v. Beyea, 3 Kern., 273.) But it is provided in this will that the testamentary guardian of Chloe shall apply all or such part of the testator's estate as he shall deem necessary, for her education, maintenance and support, until she shall attain the age of twenty-one years, and it is this provision which, as it is argued, brings the case within the principle of those in which a subsequent gift over has been held repugnant to a prior gift of an absolute estate. The cases sustaining this principle proceed upon the construction of the will, and not upon any positive rule of law. If it appeared that the testator intended to confer upon the first devisee an absolute power of disposition, and in his will he afterwards make a gift over, the two dispositions cannot stand together. The absolute power of disposition shows that he intended to give an unqualified title to the first devisee, and it is in the nature of such a title that the property, if not alienated by the owner, shall descend to the heirs, if it be real estate, or go to the next of kin, if it be personal. The gift over is repugnant to this quality of absolute ownership, and it is consequently void. ( Norris v. Beyea, supra, and cases there cited; Jackson v. Delancey, 13 John., 537; Helmer v. Shoemaker, 22 Wend., 137; Hill v. Hill, 4 Barb., 419.) There is nothing in this will, beyond the usual words of limitation appropriate to carry an estate in fee, to denote an intention in the testator that his daughter should have an absolute power of disposition. The purposes to which it might be applied were limited, not general. These purposes were, maintenance, education and support. As to these objects, the guardian had full discretion, but it was, nevertheless, a discretion limited to the purposes mentioned. The estate could not be disposed of at the pleasure of Chloe or her guardian. It was also limited to her minority. True, if the objects required the expenditure of the whole estate, it was all to be used, as she was to be maintained and educated at all events. This purpose was paramount to the desire of making a bequest to the plaintiff's institution. But we are to intend that the testator supposed it probable that there would be a large residuüm, as the event proved there was, and out of this he directed the payment of this legacy. This is very different from an absolute power of disposition, and the case does not, in my opinion, fall within the principle referred to. I am, therefore, of opinion that the legacy to the plaintiff was a valid gift, if there was personal estate remaining, at the death of Chloe Hyde, with which it could be paid.
But it is contended that the defendant, the surviving executor of Daniel Kellogg, who was himself the executor of David Hyde, is not liable for the amount, or any part of it. The defendant, it is true, does not represent the estate of David Hyde. But he, as Kellogg's representative, is bound to account to the representatives of Hyde, and the parties interested in his estate, to the extent of the assets of his testator in his hands, for whatever remains unaccounted for of the estate of Hyde. Kellogg mingled the assets of his testator with his own, and they have passed into the hands of his representatives. I do not think it can be maintained that it was the duty of Mr. Kellogg, as executor, to invest the amount of this legacy in securities, for the purpose of satisfying this contingent gift, in case the right to it should arise. The case of Spear v. Tinkham (2 Barb. Ch. R., 211), cited in the case of this plaintiff against Cole (20 Barb. S.C.R., 321), is inapplicable. That was the case of a vested remainder, and in which the legatee for life took, by the terms of the will, only the use and occupation. In this case, nothing was vested, and it was doubtful during the daughter's lifetime whether the contingency would ever happen upon which the plaintiff would be entitled to the legacy. Mr. Kellogg's duty as guardian terminated when Chloe Hyde came of age. I know of no authority to show that the executors of her father had a right to withhold from her any portion of the residuary estate bequeathed to her, to await the event of her dying without issue living at her death. She survived her minority thirteen years. It is true that, if the whole residue had been paid to her on her becoming twenty-one, the plaintiff's security for the legacy would have been imperfect. It is not necessary now to say what cautionary measures might have been taken to secure it during that time; but to me it seems clear that the executors of the testator were not, during the life of Miss Hyde, made the trustees for this legatee. The further authority referred to by the Supreme Court, in the case against Cole, do not appear to me to bear upon the question. ( Walcott v. Hall, 2 Bro. C.C., 305; Lupton v. Lupton, 2 John. Ch. R., 614; Story's Eq. Jur., § 92.) I cannot, therefore, hold the defendant liable on the ground suggested in the opinion of the court in the case against Cole. But upon the death of Miss Hyde, the plaintiff became entitled to $10,000 out of the property bequeathed by Mr. Hyde to his daughter. I am not able to appreciate the difficulty which the Supreme Court found in decreeing its payment out of the assets in the hands of Cole, the administrator of Chloe Hyde; but I do not think the judgment in favor of Cole is a bar to the relief sought against the present defendant. If upon the death of Chloe, without issue, the plaintiff became entitled to this legacy, as I have supposed, any person who had possession of the estate out of which it was payable, as a trustee for the next of kin of Chloe, might, after a proper demand, be prosecuted for the payment. The positions to be established in such an action would be the legal validity of the bequest, the death of Chloe without issue, and that the defendant was in possession of funds or property out of which it ought to be paid. If there is a balance due from Daniel Kellogg's representatives to the estate of David Hyde, that is a proper fund to the extent of such balance; and it appears by the special verdict that at the death of Chloe there was more than enough to pay this legacy in the hands of the defendant and the co-executors of Mr. Kellogg. Upon that event the plaintiff's legacy arose, and they had no right after that event to pay over the residue without retaining the amount to which the plaintiff was entitled. There is, however, a further difficulty in sustaining the judgment under review. The administrator of Chloe Hyde is a necessary party to the suit. He is a trustee of the next of kin of Chloe, and they are interested in this fund after satisfying all charges upon it, and have a right to be heard upon any claim which tends to take it away for the benefit of another, or to reduce it.
My opinion, therefore, is, that the judgment of the Supreme Court should be reversed, and the proceedings remitted to the Supreme Court, with directions to make an order that the case stand over to enable the plaintiff to make the administrator of Chloe Hyde a party defendant; that, upon this being done, and an opportunity being given to him, according to the forms and practice of the court, to contest the facts found by the special verdict, so far as may be material to show his right, as against the plaintiff, to the amount which will otherwise be required to pay the legacy, the Supreme Court should be directed to proceed to judgment according to the principles above established.
All the judges concurring,