Preston v. Howk

Hardin, P. J.:

Plaintiffs’ complaint particularly described two parcels of real estate owned by the deceased at the time of her death, and is framed *46 for the purpose of having partition of such real estate between the plaintiffs and the defendant, Delia 0. Hicks, who are alleged to be the heirs at law, and to whom it is alleged the' property of the testatrix descended.

The prayer of the complaint, among other things, asks that “ The pretended devise to the trustees of the Presbyterian Church at Ontario Center,” mentioned in the will, “be declared null and void, and that the said instrument, so far as the said bequest to said-trustees and to said church is concerned, be adjudged to be invalid and in no wise to affect the disposition of her said real estate.” It demands further relief according to the usual course and practice in actions for partition.

Upon the trial proof was given tending to show that in 1844 the Ontario Congregational Society was organized at Ontario Center, and that in 1868 • the form of the government of the church was changed' voluntarily from Congregational to Presbyterian, and that thereafter the church was known as “ The Presbyterian Church.” It was shown by the evidence -that there was no other church known or called the Presbyterian Church, in the town of Ontario, and that the .testatrix for many years attended that church, being a member thereof, and being “a constant and regular attendant upon the church services ” until a few weeks before her death.

Apparently the church was incorporated under the statute of 1813 (Chap. 60, Revised Laws of 1813 [2 R. L. 212]). (M. E. Union Church v. Pickett, 19 N. Y. 482 .)

The statute of 1813, as amended by chapter Y9 of the Laws of 18Y5, gave to the church power to “ take .and receive by bequest or devise any real or personal estate, the net annual income of which shall not exceed $12,000, subject, however, to the provisions of chapter 360 of the. Laws of 1860, entitled ‘An act relating t.o wills.’ ” (See, also, chapter 443 of the Laws of 1SY5.) In the 4th section of chapter Y9 of 18Y5 it .was provided, viz.: “ The trustees of any church, congregation or religious society, incorporated under said section three of the above-mentioned act, shall administer the temporalities thereof, and hold and apply the' estate and property belonging thereto and the revenues of the same, for the benefit of such corporation.” The proofs'given at the trial were sufficient to warrant the finding that the Congregational society had *47 changed to Presbyterian, and that the Presbyterian church mentioned in the will was the one known in law as the Ontario Congregational Society, and the misnomer does not affect or defeat the intention of the testatrix. (Lefevre v. Lefevre, 59 N. Y. 440 .)

In the fourteenth clause of the will the testatrix used this language : “ I give and bequeath the use or interest of all the rest, residue and remainder of my estate, both real and personal, to the trustees of the Presbyterian Church at' Ontario Center, N. Y., which is to be used by them to help defray the expense of preaching the gospel in said church, from- year to year.” It is contended in behalf of ■ the appellants that the effect of the language used is to create a trust in the trustees • named. It is quite apparent, however, that the language used, which has just been quoted, together with the other language found in the will was employed by the testatrix for the purpose of giving to the corporate body the property mentioned in the will, and that the property vested at the close of the testator’s life. [Matter of Wesley, 43 N. Y. St. Repr. 952; Currin v. Fanning, 13 Hun, 458 ; N. Y. Institution for the Blind v. How’s Executors, 10 N. Y. 84 ; Chamberlain v. Chamberlain, 43 id. 424; Wetmore v. Parker, 52 id. 450.)

In the further provisions of the will the testatrix authorized her executor to convert all of her estate, real and personal (not otherwise disposed of), into money, and gave to him authority to bargain, sell and alien in fee simple all of her lands; and gave to him full power and authority to grant, bargain, alien, sell and convey and assure “ all the same lands to any person or persons and their heirs forever in fee simple.” This language does not seem to have been used for the purpose of creating a trust in the executor for the benefit of another person. It seems to have been used for the purpose of granting a power to enable the beneficiary to, have and enjoy the estate of the testatrix intended to be carried by the residuary clause of her will to the church. The language of the will is sufficient to confer upon the residuary legatee “ the use or interest of all the rest, residue and remainder of my estate, both real and personal; ” and by the use of this language there was a. gift by implication of the corpus of the estate to the church “ for the purpose of aiding the corporation in the discharge of some of its corporate functions.” (Bird v. Merklee, 144 N. Y. 544 ; Paterson v. Ellis, 11 Wend. 298 ; Smith v. Post, *48 2 Edw. Ch. 526 ; Hatch v. Bassett, 52 N, Y. 359-362. That case was approved in Locke v. F. L. & T. Co., 140 N. Y. 146 ; Whitney v. Whitney, 63 Hun, 59 , and cases cited at page 78.)

The foregoing views lead to the conclusion that the Special Term committed no error in stating the conclusions of law found in its decision, and the judgment thereon should be affirmed.

(2) Upon affidavits presented at a Special Term held by the same judge who heard the case on the merits, an application was made for an additional allowance. Affidavits were read in behalf of the defendants tending to show the value of the property involved, and a moderate allowance was authorized, to wit, $150. Ho conflicting affidavits appear in the record; and we discover nothing Upon an inspection of the affidavits used, and the circumstances disclosed by the appeal book, indicative that the Special Term abused its discretion. We, therefore, should sustain its order. (Burke v. Candee, 63 Barb. 552 ; Delcomyn v. Chamberlain, 48 How. Pr. 413 ; Tolman v. S. B. & N. Y. R. R. Co., 31 Hun, 403 ; Gooding v. Brown. 21 Wkly. Dig. 47 ; Eames Vacuum Brake Co. v. Prosser, 88 Hun, 343 .)

■ All concurred, except Adams, J., not sitting.

Judgment and order affirmed, with two bills of costs, payable out of the estate.