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L. 1909, ch. 45

Future Estates, Charitable Uses, etc.

§ 13

thereto, which they do, the Supreme Court has jurisdiction both inherently and under the provisions of the present section of the Personal Property Law and section 113 of the Real Property Law to entertain an action by the trustees after incorporation for a construction of the will and for instructions as to their powers and duties. Sailors Snug Harbor v. Carmody, (1914) 211 N. Y. 286, 105 N. E. 543, affirming 158 App. Div. 738, 144 N. Y. S. 24, which reversed 77 Misc. 494, 137 N. Y. S. 968.

Effect upon trust where corporate trustee ceases to exist before will becomes operative.— The fact that a corporate body, which is in existence when a will is executed, and which is named as trustee to carry out a charitable trust, ceases to exist before the will becomes operative, cannot defeat the purpose of the trust; the legacy does not lapse, but should be paid into court under the provisions of the present section of the statute, to be controlled and disposed of by the court in accordance with the provisions of the will. In re Deming, (1908) 112 N. Y. S. 170. See also Matter of Powell, (1910) App. Div. 830, 121 N. Y. S. 779.

Exclusive power in trustees to execute trust. — The title to the property bequeathed in trust vests in the trustees named in the will, and so long as any of them survive, they, and not the Supreme Court, are, by the statute, given the power and charged with the duty of executing the trust. Rothschild v. Schiff, (1907) 188 N. Y. 327, 80 N. E. 1030, modifying judgment 103 App. Div. 235, 92 N. Y. S. 1076.

Attorney-general as party to action for construction of will creating charitable trust.— In an action brought for the construction of a will which necessarily involves a determination of the validity of provisions in the will disposing of property for charitable or educational purposes, the attorneygeneral is a proper party. Rothschild v. Goldenberg, (1901) 58 App. Div. 499, 69 N. Y. S. 523.

Right of attorney-general to have trust plans submitted to him.- While the attorney-general, under the present section, undoubtedly has the right to intervene in an action for the construction of a will creating a charitable trust, the court will not, in the absence of proof that the trustee is not performing his duties properly, compel him to submit to the attorney-general his scheme and plan of distribution of the trust funds. Buel v. Gardner, (1915) 168 App. Div. 278, 149 N. Y. S. 803, 153 N. Y. S. 1108.

§ 13. Certain educational and other charitable uses authorized. 1. Personal property may be granted, bequeathed, and conveyed to any incorporated college or other literary incorporated institution in this state, to be held in trust for any one or more of the following purposes:

(1). To establish and maintain an observatory; (2). To found and maintain professorships and scholarships;

(3). To provide and keep in repair a place for the burial of the dead; or

(4). For any other specific purposes comprehended in the general objects authorized by their respective charters.

The said trusts may be created, subject to such conditions and visitations as may be prescribed by the grantor or donor, and agreed to by said trustees, and all property which shall hereafter

§ 13

Future Estates, Charitable Uses, etc.

L. 1909, ch. 45

be granted to any incorporated college or other literary incorporated institution in trust for any of the aforesaid purposes, may be held by such college or institution upon such trusts, and subject to such conditions and visitations as may be prescribed and agreed to as aforesaid.

2. Personal estate may be granted, bequeathed, and conveyed to the corporation of any city or village of this state, to be held in trust for any purpose of education, or the diffusion of knowledge, or for the relief of distress, or for parks, gardens, or other ornamental grounds, or grounds for the purposes of military parades and exercise, or health and recreation, within or near such incorporated city or village, upon such conditions as may be prescribed by the grantor or donor, and agreed to by such corporation.

3. Personal estate may be granted, or bequeathed to commissioners of common schools of any town, and to trustees of any school district, in trust for the benefit of the common schools of such town, or for the benefit of the schools of such district.

4. The trusts authorized by this section may continue for such time as may be necessary to accomplish the purposes for which they may be created.

This section was derived from L. 1840, ch. 318, $$ 1-4, as amended by L. 1841, ch. 261, § 1.

The report of the Board of Statutory Consolidation (1907), page 3924, has the following note relating to this section : “ This section is intended to consolidate L. 1840, ch. 318, SS 1-4, as amended by L. 1841, ch. 261, § 1, in so far as those laws relate to personal property. The same acts in so far as they relate to real property are made section 114 of the Real Property Law.”

Devises of real property for educational and charitable uses: see REAL PROPERTY LAW, § 114. Trusts for parks and libraries in villages and towns : see GENERAL MUNICIPAL LAW, art. 8. Trusts for school purposes: see EDUCATIONAL LAW, § 520 et seq.

Bequest for support or establishment of free or public schools as violation of rule against perpetuities: see 8 Ann. Cas. 928, note.

Effect of enactment.— The statutes of 1840 and 1841, which are embodied in the present section, were passed for the purpose of authorizing the creation of certain special trusts in connection with educational institutions, which could not have been legally created prior to their passage, and their object did not infringe upon the general laws of the state or its policy. Their passage did not repeal those general laws limiting the amount or value of property which corporations might take and hold. Matter of McGraw, (1888) 111 N. Y. 66, 19 X. E. 233, 2 L. R. A. 387, aflirming 45 Hun 354, 10 N. Y. St. Rep. 495, affirmed Cornell University v. Fiske, (1889) 136 U. S. 152, 10 S. Ct. 775, 34 U. S. (L. ed.) 427. To the same effect is Chamberlain v. Chamberlain, (1871) 43 N. Y. 424, modifying judgment 3 Lans. 348. See also Levy v. Levy, (1865) 33 N. Y. 97, reversing 40 Barb. 585.

Cited. - The statute embodied in this section was cited in Cottman v. Grace, (1886) 41 Hun 345, 2 N. Y. St. Rep. 630, reversed (1889) 112 N. Y.

L. 1909, c. 45

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299, 19 N. E. 839, 3 L. R. A. 145, in connection with the discussion of the doctrine of perpetuities. See supra, $ 1l, note, I. Generally. It was cited in Matter of Griffin, (1901) 167 N. Y. 71, 60 N. E. 284, reversing 45 App. Div. 102, 61 N. Y. S. 639, and Adams v. Perry, (1871) 43 N. Y. 487, in connection with the discussion of the question of bequests for charitable purposes. See supra, § 12 note.

The statute was cited and applied in Iseman v. Myres, (1882) 26 Hun 651, and in Betts v. Betts, (1876) 4 Abb. N. Cas. 317. It was cited in Fosdick v. Hempstead, (1891) 125 N. Y. 581, 26 N. E. 801, 11 L. R. A. 715, reargument denied (1891) 126 N. Y. 651, 27 N. E. 382, 37 N. Y. St. Rep. 130.

$ 13-a. Trusts for care of cemetery lots, et cetera. Gifts, grants and bequests of personal property, in trust for the purpose of perpetual care and maintenance, improvement or embellishment of private burial lots, in or outside of cemeteries, and the walks, fences, monuments, structures and tombs thereon are permitted and shall be deemed to be for charitable and benevolent uses; and shall not be deemed to be invalid by reason of any indefiniteness or uncertainty of the persons designated as beneficiaries in the instrument erecting the same, nor shall they be deemed invalid as violating any existing laws against perpetuities or suspension of the power of alienation of title to property. But nothing herein contained shall affect any existing authority of courts to pass upon the reasonableness of the amount of such gift, grant or bequest. 2Any cemetery association may act as trustee of and execute any such trust with respect to lots, walks, fences, monuments, structures and tombs both within its own cemetery limits and outside of any cemetery under its control, but within the county where such cemetery is located, whether such power be otherwise included in its corporate powers or not.

New. Added by L. 1909, ch. 218, and amended to read as above by L. 1911, ch. 430. The amendments are shown in the footnotes.

Trusts for care of cemetery lots: see REAL PROPERTY LAW, § 114-a.

Application of section.— This section relates to private burial lots and not te public cemeteries. Matter of Lyon, (1916) 173 App. Div. 473, 159 N. Y. S. 951.

Bequest for care of cemetery lot prior to enabling statute.- It was held in the case of In re Waldron, (1907) 57 Misc. 275, 109 N. Y. S. 681, that a bequest to a village of a certain sum in trust to be invested and reinvested by the trustees of the village and their successors in office, and to apply the income thereof to keeping the testator's cemetery lot and the stone and monument thereon clean and in good order and repair, was void as creating a perpetuity, the bequest being held to be not for a charitable use. To the same effect see Read v. Williams, (1891) 125 N. Y. 560, 26 N. E. 730, 21 A. S. R. 748; Matter of DeWitt, (1906) 113 App. Div. 790, 99 N. Y. S. 415, affirmed (1907) 188 N. Y. 567, 80 N. E. 1108. It was held, however, in two other

1 Words “ or outside of” new. 2 Remainder of section new.

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L. 1909, ch. 45

cases arising before the present enabling statute, that a devise or bequest to a religious corporation in trust to apply the income to the care of the testator's burial lot is valid where such a purpose comes within the corporate powers of the corporation. Driscoll v. Hewle (1909) 198 N. Y. 297, 91 N. E. 784, affirming 132 App. Div. 125, 116 N. Y. S. 466; Waterford First Presbyterian Church v. McKallor, (1898) 35 App. Div. 98, 54 N. Y. S. 740.

§ 14. Certain gifts for charitable and educational uses regulated. 1. Any person desiring, in his lifetime, to promote the public welfare by founding, endowing and having maintained a public library, museum or other educational institutions, or a chapel and crematory, within this state, may to that end and for such purposes by grant, in writing, convey to a trustee, or any number of trustees, named in such grant, and to their successors, any personal property belonging to such person.

2. The person making such grant may therein designate:

(1). The nature, object and purposes of the institution to be founded, endowed and maintained.

(2). The name by which it shall be known.

(3). The powers and duties of the trustee or trustees and the manner in which he or they shall account, and to whom, if accounting be required; but such powers and duties shall not be held to be exclusive of other powers which may be necessary to enable such trustee or trustees to fully carry out the object of such grant.

(4). The mode and manner, and by whom, the successors to the trustee or trustees named in the grant are to be appointed.

(5). Such rules and regulations for the management of the property conveyed as the grantor may elect to prescribe; but such rules shall, unless the grantor otherwise prescribe, be deemed advisory only, and shall not preclude such trustee or trustees from making such changes as new conditions may from time to time require.

(6). The place or places where, and the time when, the building or buildings necessary and proper for the institution shall be erected, and the character and extent thereof. The person making such grant may therein provide for all other things necessary and proper to carry out the purposes thereof, and especially may such person provide for such lectures, exhibitions, instruction or amusement in connection with such institution as he may deem desirable.

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Future Estates, Charitable Uses, etc.

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3. The trustee or trustees named in such grant and their successors, may in the name of the institution, as designated in such grant, sue and defend, in relation to the trust property and in relation to all matters affecting the institution endowed and established by such grant.

4. The person making such grant, by a provision therein, may elect, in relation to the property conveyed and in relation to the erection, maintenance and management of such institution, to perform, during his life, all the duties and exercise all the

powers which, by the terms of the grant, are enjoined upon and vested in the trustee or trustees therein named. If the person making such grant, and making the election aforesaid, be a married person, such person may further provide that if the wife of such person survive him, then such wife, during her life, may, in relation to the property conveyed, and in relation to the erection, maintenance and management of such institution, perform all the duties and exercise all the powers, which, by the terms of the grant, are enjoined upon and vested in the trustee or trustees therein named, and in all such cases the powers and duties conferred and imposed by such grant upon the trustee or trustees therein named, shall be exercised and performed by the person making such grant, or by his wife during his or her life, as the case may be; provided, however, that upon the death of such person, or his surviving wife, as the case may be, such powers and duties shall devolve upon and shall be exercised by the trustee or trustees named in the grant and their successors.

5. The person making such grant may therein reserve the right to alter, amend or modify the terms and conditions thereof and the trusts therein created, in respect to any of the matters menticned or referred to in paragraphs numbered one to six inclusive of subdivision two hereof; and may also therein reserve the right, during the life of such person, of absolute dominion over the personal property conveyed, without liability to account therefor in any manner whatever, and without any liability over against the estate of such person; and if any such person be married, such person may, in said grant, further provide that if his wife survive him, then such wife, during her life, may have the same dominion over such personal property, without liability to account therefor in any manner whatever, and without liability over against the estate of either of the spouses.

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