Probate Lawyer from the records, the instant case involves a will contest as regards the legacy of the decedent. The decedent died in 1905. By her will she bequeathed $10,000 to a Hose Company ‘to be kept at all times intact and the income derived from the safe and judicious investment thereof to be devoted to the reasonable and proper uses of said company for whatever purposes its members acting as an organization may see fit to direct.’ If, however, the legacy for any reason ‘shall lapse or fail or for any cause not take effect in whole or in part,’ she bequeathed it to the one who survived her.
The Hose Company was a corporation organized for the purpose of aiding in the suppression of fires in the village. It could only engage under the statute in such business as properly belongs to hose companies. In taking part in the prevention of fires it was placed under the control and subject to the orders of the village fire authorities. Annually its trustees must file an inventory of its property and an affidavit that it has not directly or indirectly engaged in any other business. Before its certificate of incorporation could be filed it had to be approved by the trustees of the village. It might take and hold personal property bequeathed to it, and it was further said to be capable of taking and holding property for the purpose of its incorporation and for no other purpose. It was named after the father of the decedent. To it the legacy was paid in 1906.
The issue raised before the court is whether or not the company is authorized to received the legacy.
An Estate Lawyer the court held that, the gift created no trust. And, the title of the property vesting at once, there was no suspension of its ownership or of its alienability. The purpose for which the gift was made is reasonably clear. The income is to be applied ‘to the proper uses of the company.’ These purposes are defined by its certificate of incorporation and by the statute. They are uses incidental to the end of fire protection for the village. Whether the hose company is a charitable corporation within the meaning of that term wherever it may be used in our statutes we need not decide. Section 61 of the Real Property Law, as to accumulations, and section 221 of the Tax Law, as to taxable transfers, refer generally to such corporations. So does section 4 of the Tax Law, but this latter reference was not thought sufficient to cover the real property of an incorporated association of volunteer firemen. Section 4, subd. 8. Yet the provision that formerly existed. as to the amount that might be given by will to a body incorporated under chapter 397 by one having a wife, child, or parent has been repealed very possibly with the idea that the matter is sufficiently covered by section 17 of the Decedent Estate Law. Be that as it may, it is certainly a charitable corporation, and this is a charitable bequest in the broader sense of the term.
Nassau County Probate Lawyers said the doctrine of charitable uses involving the idea of a trust and indefinite beneficiaries did not become part of the law of New York. We thought it better to limit a charitable gift in perpetuity to those instances where it was made absolutely to a corporation whose objects were approved by the Legislature and which was authorized to accept it under such conditions as the Legislature might impose. Yet the kind of uses called charitable are of assistance in deciding what is a charitable purpose. The Statute of 43 Elizabeth enumerates what were considered charitable uses, and subsequently a charitable use was said either to be one included in this enumeration or one created for some analogous public purpose. The statute spoke of such a use as for the repairs of bridges and highways as well as of uses for religious, educational, and benevolent purposes, and it was held that a charitable use is not confined to the relief of the poor or to the assistance of learning and religion, but includes the advancement of objects of general public utility. Thus a trust that tends to reduce taxation and lessen the burdens of government was a charitable use.
A Staten Island Probate Lawyer said the definition of the Kentucky Statutes as to a public charity, the purposes of this particular corporation as defined in its act of incorporation, its freedom from public control, and the failure to impose upon it any public duties differentiated it from such a corporation as that which we are now considering. The bequest we are considering was given for the advancement of an object of general public utility. It was for a public purpose, even if this purpose was not charitable within the common and narrow sense of the words. It does carry the implication of public benefit, and ‘when the purpose accomplished is that of public usefulness unstained by personal, private, or selfish considerations, its charitable character insures its validity.’ The mere fact that the gift is intended as a memorial does not affect its public character. It being, therefore, for a charitable purpose, to a corporation authorized to receive it, the hose company held this legacy for ten years. It took it for the purpose of its organization. To this end it was bound to devote it. To divert it to other purposes would have exceeded its powers. To do so would subject it to action by the state.
As this bequest was of personal property, assuming it was upon a condition subsequent, the condition would not become operative unless upon its breach there was a gift over, and a general gift of the residue is not such a gift over. We do not understand, however, that any claim to this fund is made by the administrator and trustee of the decedent’s estate. It is said, however, that the gift to the hose company was subject to a conditional limitation. The contingency which limited the title of the company has arisen. Therefore the title vests either to the one who survived the decedent. It is difficult to see any basis for the first claim. Concededly the limitation over, if one there be, was to them as individuals, and not as trustees. Whatever title vested in them on decedent’s death vested in them as tenants in common. Such an expectant estate is descendible and alienable. But, unless some estate did in fact vest in one or both, we need not discuss their respective rights. The gift to the hose company is absolute in its terms. As we have seen, it creates no trust. It is true the principal is to be kept intact, but the income is to be used for fire purposes. We cannot find that such a gift has ever been held to impose a condition.
As to the conflicting claims of the members of the hose company, to whom the Special Term awarded the fund, and the city, to whom it was given by the Appellate Division in trust to be used for the protection of its inhabitants against fire. Holding as we do, that this was a bequest for a charitable purpose to a corporation authorized by its charter to receive bequests for that purpose, the answer to this problem is clear. Upon the dissolution of such a corporation, personal property bequeathed to it, dedicated to public and charitable purposes, was disposed of by the state with due regard to the objects to which it was dedicated. It was not the property of the corporation to be divided among its members as would be the property of a purely private or business corporation. It held the property in trust-not a trust imposed by the donor, but by the charter which required the corporation to perpetually devote its funds to such purposes. To hold otherwise would be to permit the destruction of the greater part of the charitable bequests made in this state during the last century.
In this state jurisdiction on its behalf to supervise the due administration of corporations has been confided in the Supreme Court. To it was given power to prevent the dissipation of their funds. When dissolution came it either appointed officers to see that those funds were properly distributed, or itself provided for such distribution. In the case of a charitable corporation it would require the personal property to be applied to such charitable purposes as the state might direct. In 1893, however, by the so-called Tilden Acts, greater power was conferred upon it. These acts (now section 12 of the Personal Property Law and section 113 of the Real Property Law) did more than make applicable to this state the doctrine of charitable uses. The court itself is authorized to apply the cy pres rule not only where a trust existed, but where property had been devised or bequeathed to a corporation authorized to take and hold it for charitable purposes. If circumstances have so changed that a literal compliance with the terms of the gift is impracticable, then it may order the gift to be administered so as best to accomplish its purpose. Over such gifts it is given general control, and, while it is said the court may make such an order ‘on the application of the trustee or the person or corporation having the custody of the property,’ the language should not be construed as limiting the power of the court to act only when application is so made. It may act on information by the state. It may act of its own motion.
The situation in the case at bar asked to award this fund to individuals, the court has refused so to do. It has held that it is impressed with a public trust. It has said that it results from a gift for charity. It has determined that to award it to the city, to be held in trust for fire protection, will most effectually accomplish the general purpose of the bequest under which the fund was created. The exercise of the cy pres doctrine always involves a large measure of discretion. Nothing in the record before us shows the improper exercise of that discretion. The judgment appealed from should be affirmed.
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