Limits to Testamentary Disposition.

While the law has generally granted the privilege of testamentary disposition, it has not deemed it expedient or politic to give the absolute and unrestricted power, so that a person can make a posthumous disposition of his property in any way he thinks proper. For the public welfare, it has seemed judicious to impose certain restrictions on the right exercised by a person in distributing his property after his decease. It is well known that if an uncontrolled, absolute power were given, that individuals would sometimes disregard the claims of those who have a natural right to their bounty, and gratify their pride, their whims, or their vagaries in disposing of their property by will.

The possession of a large amount of property during a man’s lifetime gives him such a consciousness of power and authority, that it is difficult to disabuse his mind of the idea that he cannot perpetuate his name, his influence and control, after his death, by distributing and disposing of his property according to his pleasure.

The law is full of instances where men have attempted, by schemes in devising their property, to establish a name and an influence that would abide long after the mind that conceived them had ceased to act or control.This has been the ambition, we may call it the infirmity, of some great minds; indeed, it seems sometimes a special characteristic of such persons to desire to live thus in the memory of posterity, by some remarkable and striking mode of disposing of their property after their decease, so as to leave some visible token of their influence and prestige, either in an institution or in a family,[206] either in a charity or a monument.

When properly and judiciously exercised, this desire has led to the foundation of those noble institutions for the relief of the indigent and helpless, for the promotion of knowledge and education, for the development of science and art, and for the furtherance of various benevolent designs, which are the boast and glory of our modern civilization, and which have done so much to foster and advance that civilization.

But at an early period this desire or infirmity was made use of by the clergy, who wielded such vast influence over the dying, to induce testators to dispose of property for enriching churches and monasteries, and various other institutions. So great did the evil become, and so many grievous abuses sprung up, that the public welfare was threatened and endangered, and in consequence of this, a bitter and determined struggle ensued between the civil and spiritual powers, lasting through centuries and giving a peculiar bias to certain legislation. As soon as some means would be devised to check the abuses, and to limit the power of the clergy, some new device would be contrived by their ingenuity to evade the rules or nullify a law. The establishment of the law of Uses and Trusts is a good example of these ingenious devices to evade a statute.

The several Statutes of Mortmain had their origin in this effort of the civil power to curb the influence of the spiritual power, and check a dangerous tendency to enrich corporations of a religious or eleemosynary character. These several acts occupy a prominent place in English history, and characterize a very important epoch of that history. Their influence has extended to us, who have gathered experience from the past, and this is plainly evinced in our Statutes of Wills in the different States, which disqualify corporations from taking by devise unless expressly authorized.[207]

It was found, however, that an indiscriminate prohibition would prevent the foundation of many worthy and useful institutions, which, instead of being a menace, would be a safeguard to the welfare of the State; and hence a distinction arose between such bequests as were for charitable uses, and those for superstitious uses, the latter of which were so obnoxious to the law, and forbidden by it. A superstitious use is thus defined in Bacon’s Abridgement.[208] It is, “where lands, tenements, rents, goods, or chattels are given secured, or appointed for and towards the maintenance of a priest and chaplain to say mass; for the maintenance of a priest or other man, to pray for the soul of any dead man, in such a church, or elsewhere; to have and maintain perpetual obits, lamps, torches, etc.,[209] to be used at certain times, to help to save the souls of men out of purgatory; these and such like uses are declared to be superstitious.”

Devises to charitable uses were supported in England at an early period in the common law, which is supposed to have derived its maxims on this head from the civil law. Lord Nottingham says, in the case of the Attorney-General v. Tancred,[210] that devises to corporations, though void under the Statute of Wills, were good in equity if given to charitable uses.[211]

The Statute of the 43d of Elizabeth enumerates what charitable uses were. They were, according to this statute, gifts for the relief of aged, impotent, and poor people; for maintenance of sick and maimed soldiers and mariners; for ease of poor inhabitants concerning payment of taxes; for aid of young tradesmen, handicraftsmen, and persons decayed; for relief, stock, and maintenance of houses of correction; for marriages of poor maids;[212] for education and preferment of orphans; for schools of learning, free schools, and scholars in universities; for relief or redemption of prisoners or captives; for repair of bridges, ports, havens, causeways, churches, sea-banks, and highways.But as it was found that persons “dying and languishing”—in extremis—were frequently unduly influenced to dispose of their property to such charitable purposes, against the rights of their family or kindred, it was enacted by the Statute of Mortmain, 9 George II, that no property in land, or arising out of land, could pass to such purposes, unless by deed indented, sealed, and delivered in the presence of two or more credible witnesses, twelve calendar months before the death of the donor or grantor.[213] Of course, these statutes have no operation in this country, unless by special enactment. The statute of Elizabeth not being in force in New York, it was therefore insisted that no devise to charitable uses was, in consequence, valid.

The fluctuations of the law on this point present a remarkable and not a very satisfactory example of varying judicial opinion in that State. The earlier decisions of its highest court have lately been overruled, and the earlier doctrines on the subject discarded. Thus, in Williams v. Williams,[214] it was held that the law of charitable uses was not founded on the statute of Elizabeth, but was a part of the common law, which is still in force here, so far as conformable to our polity and adapted to our institutions; and that a court of equity, exercising the chancery jurisdiction of the English courts, will carry out the purpose of a testator; and that, notwithstanding the statutory prohibition against devises of lands to corporations, a devise of a charity, not directly to a corporation, but in trust for a charitable corporation, would be good. Subsequent cases followed this decision of Williams v. Williams; but later cases have altered the law in New York. The case which effected a change, and finally determined the law, is of historical as well as legal importance, and deserves a detailed statement.

It is the case of Levy v. Levy,[215] most learnedly and ably argued and examined in the various courts of the State. Commodore Uriah P. Levy, the testator, was an eminent and wealthy officer of the United States navy, of the Jewish religion, who became the owner of the famous farm of Jefferson, at Monticello, in Virginia, and who died in New York in March, 1862, leaving property valued at over half a million dollars. In his will, after making various bequests, he provided:

“After paying the above legacies and bequests, or investing for the same, and subject to my wife’s dower and use of furniture, I give, devise, and bequeath my farm and estate at Monticello, in Virginia, formerly belonging to President Thomas Jefferson, together with all the rest and residue of my estate, real, personal, or mixed, not hereby disposed of, wherever or however situated, to the people of the United States, or such persons as Congress shall appoint to receive it, and especially all my real estate in the city of New York, in trust, for the sole and only purpose of establishing and maintaining at said farm of Monticello, in Virginia, an agricultural school, for the purpose of educating as practical farmers, children of the warrant officers of the United States navy whose fathers are dead. Said children are to be educated in a plain way in the ordinary elementary branches to fit them for agricultural life, and to be supported by this fund, from the age of twelve to sixteen, and each of them to be brought up to do all the usual work done on a farm; the said farm to be so cultivated by the said boys and their instructors as to raise all they may require to feed themselves, and the schoolmaster and one other teacher, and one superintendent of the said farm. I also give and bequeath, for the purpose of giving such fuel and fencing for said Monticello farm-school, two hundred acres of woodland of my Washington Farm, called the Bank Farm, in Virginia, the said two hundred acres to be taken from said farm hereby devised to my nephew Ashel, and to be designated by said Ashel.

“In establishing said farm-school, I especially require that no professorships be established in said school, or professors employed in the institution; my intention in establishing this school is charity and usefulness, and not for the purpose of pomp. In proportion to the smallness of number of the teachers, so will industry prevail.

“The institution must be kept within the revenue derived from this endowment; and under no circumstances can any part of the real or personal estate hereby devised be disposed of, but the rent and income of all said estate, real and personal, is to be held forever inviolate, for the purpose of sustaining this institution. The estate and lands in New York can be leased to great advantage for that purpose.

“Should the Congress of the United States refuse to accept of this bequest, or refuse to take the necessary steps to carry out this intention, I then devise and bequeath all the property hereby devised to the people of the State of Virginia, instead of the people of the United States. Provided they, by acts of their legislature, accept and carry it out as herein directed. And should the people of Virginia, by neglect of their legislature, decline to accept this said bequest, I then devise and bequeath all of my said property to the Portuguese Hebrew Congregation of the city of New York, the Old Portuguese Hebrew Congregation in Philadelphia, and the Portuguese Hebrew Congregation of Richmond, Virginia: provided, they procure the necessary legislation to entitle them to hold said estate, and to establish an agricultural school at said Monticello for the children of said societies who are between the ages of twelve and sixteen years, and whose fathers are dead, and also similar children of any other denomination, Hebrew or Christian.

“I direct my executors hereinafter named, or such of them as shall qualify, to invest the funds arising from said estate in some safe, paying stocks as fast as they accumulate, and to hold the whole of the property and estate hereby devised and bequeathed for said school, and in their hands, until the proper steps have been taken by Congress, or the legislature of Virginia, or the said Hebrew Benevolent Congregations, to receive the same and discharge said executors.”

The court, in its decision, extensively reviewed preceding cases, and held that, at common law, the trust would be void for want of a certain donee or beneficiary of the use or trust, whom the law could recognize. That it was uncertain which class of beneficiaries would be the parties in interest, and if the class were ascertainable, that the individuals thereof were indeterminate and unascertainable, and there was no ascertained beneficiary in whose favor performance might be enforced.

The court determined that the law of charitable trusts, as existing and enforced in England, being based on the statute of Elizabeth, was abrogated and annulled in the State by the act of 1788, which repealed the statute of Elizabeth; and that the legislature by that act intended to abrogate the entire system of indefinite trusts, which were understood at the time to be supported by that statute alone, as being opposed to the general policy of our government and to the spirit of our institutions.

The court also determined that the trustees named, viz., The People of the United States, or the State of Virginia, were incompetent to take as trustees, they being created for certain determinate political purposes, and having no other function or existence.[216] Nor could the Hebrew Congregations, it was held, so act, as the trust was not within the acts or province of their incorporation; the one in New York could only take property for its own use, and the foreign corporations could not take and act as trustees of lands in this State. The court was further of opinion that the whole of the peculiar system of English jurisprudence, for supporting, regulating, and enforcing public or charitable uses, is not the law of the State of New York when in conflict with statutory prohibitions relative to uses and trusts.[217]

This case was afterwards followed by Bascom v. Albertson,[218] holding and approving the views of Levy v. Levy, which may now be considered as finally settling the law on this head in New York.

The statement of the law, as decided in New York, is not in harmony with the decisions in a large majority of the States. There is unquestionably a difference of opinion on this subject. The gist of inquiry is: Does the law of charitable uses exist in those States where the statute of Elizabeth is not in force, or has been repealed? Or, is the law appertaining to this subject founded on the common law, or is it the creation of the statute? There is no question that the weight of judicial opinion is greatly in favor of the doctrine that the law is not a creation of the statute, but is founded on the common law jurisdiction in the Court of Chancery, and as such can be administered by the courts in the absence of any special statute.[219]

The statute of Elizabeth is in force in Massachusetts, Pennsylvania, North Carolina, and Kentucky. It is not in force in Maryland, Virginia, California, and New York.

In some of the States, corporations are specially empowered by statute to take a certain amount of property by devise.[220] In New York, there is a statute, passed in 1860, which prohibits a person having a husband, wife, child, or parent, from devising or bequeathing to any charitable or literary corporation more than half of his or her estate, after payment of debts.

The most frequent and dangerous propensity which law has to check and guard against in testators is that of perpetuating in their family for generations vast property and estates. The desire of founding a family of vast wealth and influence to preserve one’s property is not an uncommon one; it appeals to some of the dearest and most personal feelings of a man’s nature; it is peculiarly gratifying to pride and pomp, and, if not limited and checked, would be dangerous to the public welfare, as it withdraws from the channels of trade and enterprise a large extent of property. Hence, every civilized country finds it necessary to define the extent of a man’s control over his property, how long his volition can regulate its use after death, and to what purposes it shall be put. The common law permitted a control in this respect which would be entirely incompatible with our republican institutions and equality of our citizens.

Under that law, a man had the power to tie up his property and suspend the power of alienation, as it was termed, for any number of lives in being, and twenty-one years and a fraction afterwards. He could order the accumulation of the rents, income, or profits for a similar period. The case which first drew attention to the danger of such a power was one of the most famous in English law, and one that has since been a warning and an incentive to legislation both here and in England. Perhaps, for the amount involved, the tediousness and length of the litigation, and the singularity of the provisions, there has never been a more famous case than that of Thellusson v. Woodford,[221] tried before Lord Chancellor Loughborough, in the year 1798. The case afforded a remarkable instance of the unnatural meanness and ostentation of the testator, in depriving his immediate descendants of their just share of his fortune, not to found any noble charity, but that his fortune might accumulate in the hands of trustees, for the miserable satisfaction of enjoying in anticipation the wealth and aggrandizement of a distant posterity who should bear his name.

Peter Thellusson was born at Paris, of Swiss parentage, his father being a minister from Geneva to the French court. He settled in London as a merchant at an early age, was naturalized, and, on the foundation of a fortune of £10,000, raised the princely possessions which afterwards became the subject of litigation. It is said that he was generally respected, and, though a severe economist, lived in a style suitable to his wealth. His three sons were all members of Parliament. In the sixty-first year of his age, being at the time in perfect health and legal sanity, he made and executed his last will, bearing date April 2d, 1796, and thereby disposed of his property upon trust during the natural lives of his three sons, and of the sons of each of these then in being, and of any such issue as any of his grandsons might have as should be living at the time of his decease. During the lives of the survivors or survivor of these persons mentioned, the trustees were to collect and receive the rents and invest them, and, upon the decease of the last survivor, all the accumulated estates should be divided into three lots, of equal value, and settled upon the eldest male lineal descendant then living of each of his three sons; and, if there should be a failure of male descendants of two of his said three sons, the sole male lineal descendant of the testator should become entitled to the whole three lots, consolidated into one huge mass of landed property. The property was thus tied up in the hands of trustees, and kept from enjoyment for three generations. Shortly after executing this extraordinary will, on 21st July, 1797, Mr. Thelusson died. The money which the will sought to accumulate was estimated at £600,000. An accountant of that time calculated the accumulation—limiting it to seventy-five years, the shortest possible period during which the property would be tied up—at £27,182,000, an immense sum, but which he deemed would be considerably less than the sum it would be likely to reach when the improvement of money at a higher rate and the lengthened duration of the last survivor were taken into account. It was estimated, by one of the counsel in the case, that if there were three descendants to take, each would have an income of £650,000 a year; if only one, he would have an income of £1,900,000 a year, more than double the revenue of the king’s civil list, and surpassing the largest territorial fortune then known in Europe. Chancellor Kent, regarding it from his time, has said that if the limitation should extend to upwards of one hundred years, as it might, the property will amount to upwards of one hundred millions sterling.

The children brought an action to have the will set aside, but the court decided against them, and gave judgment confirming the trusts. The case attracted wide and deep attention from the magnitude of the fortune sought to be reared, and from the important principle of public policy involved. It was argued on both sides by the most eminent counsel at the bar, but nevertheless the Chancellor was compelled to hold the will valid, much, it is said, against his inclination. Next year, he was instrumental in getting Statute 39 and 40 Geo. III passed, restraining dispositions by way of accumulation to the life of the grantor, or twenty-one years after his decease, or the minority of any party living at the time of his decease.[222]The property was accordingly left to accumulate; but the ambitious and vain visions of the testator and the alarm of the public were destined to disappointment. The structure which threatened even to overshadow the land in its ascending greatness has not risen to a disproportionate size. The operation of the trusts has proved practically a failure, as the accumulated mass of wealth is likely to fall far short of the amount which fanciful calculators had predicted. It has shared the inevitable fate of all such vast estates that get into the grist-mill of the lawyers. The litigation has been so expensive, that what with fees of lawyers, fees of courts, commissions to trustees, and the expense of management, the corpus of the estate has been pretty well eaten up. The expenses of management from January, 1816, to 1833, exceeded £122,700. The only increase in respect of income was £8,356, and an accumulation of capital of £326,364.

The extent of time to which property is allowed to accumulate is very carefully and strictly defined in our statutes. It is generally only during a person’s minority, as in New York and California, and the same is believed to be the rule in general.[223]

The power of suspending the alienation of property by a devise is limited to lives in being in some States, or in others to two lives in being,[224] and no matter how short may be the duration, the suspension will be invalid if it is not made to depend on life as the condition of the limitation.[225] On this account, some very worthy and benevolent schemes of testators have failed.

The two lives must be designated. This may be done either by naming two persons in particular, or else by describing a class of persons, and bounding the suspense of alienation by the lives of the two first who shall die out of the class. The limitation may be restricted for a shorter period than two lives—it may be for a single life. The estate may also be limited so as to depend on some event besides life, provided it must vest within two lives; as an estate to A for ten years, if B and C, or either of them, shall so long live; here, the estate may determine either by the lapse of the ten years, or by the death of B and C; but it can in no event exceed two designated lives. So, an estate during minority, widowhood, or other stage of existence, through which two individuals may pass, would be good, because it could not by any possibility extend beyond two designated lives.[226]These technical rules have rendered many a noble scheme abortive, and frustrated the benevolent and reformatory intentions of many a testator.

In the following instance, a testator’s paternal solicitude for the reform of a wayward son, and his disapproval of his mode of life, were emphatically expressed; and an unfortunate oversight of this inflexible rule hindered the restraint the parent thought to place on his son after his decease. The father, however, with the usual confidence of a parent, had not abandoned all hope as to his ultimate recovery, for he thought fit to make him one of his executors, and thus placed him in the rather novel position of being a censor of his own conduct.

In the seventh clause of his will, after certain clear devises and bequests to other persons, was this recital and provision, viz: “Whereas, my son P, to whom sundry bequests are made in the following will, has unfortunately contracted habits of inebriation, and in consequence of which, I fear he would squander or misuse the bequests to him made, I do, therefore, annul and make void this will as to him, unless he reforms and continues a sober, industrious, and moral man, for the space of two years after my decease, giving to my executors satisfactory evidence and assurance of a thorough reformation. And, therefore, it is my will, that the property so willed to him should be held in trust for him, not to exceed three years after my decease; and if within that time such reformation does not take place, I desire my said executors to divide his portion among such of my heirs as may seem to them most to need and deserve the same.”[227]

It was held that this provision of the will was void, both as a trust, and as a power in trust; and that the son took the bequest notwithstanding.

The court deemed it “an unusual and extraordinary provision”; and as the period of suspension was measured by time alone, and not by life, this of itself rendered the provision nugatory.

It has been decided that if a bequest be made to certain trustees, to hold during the life of two persons designated, or until the legislature incorporate a hospital during the lifetime of the said persons, it is good.[228] It was in this way the will of Mr. Roosevelt was drawn, through which the Roosevelt Hospital in New York was founded. He bequeathed the residue of his estate, after other bequests, to nine trustees, five of whom were presidents of certain charitable institutions, for the establishment of an hospital for the reception and relief of sick and diseased persons, and directed them to apply to the legislature for a charter to incorporate the same, and in case the legislature should refuse to grant this within two years next after his death, provided two lives named in his will should continue so long, then the trustees were to pay over the same to the United States for a similar purpose.

It was held that this provision did not violate the statute of perpetuities, but that the corporation could take only in case the charter was granted within the two lives named. There was no need to consider the validity of the devise to the United States. The charter was granted in February, 1864, and now the hospital stands conspicuous among the charities of New York city.

An oversight in the observance of this rule against perpetuities caused the failure of a grand and meritorious scheme conceived by the late Mr. Rose of New York. He died in 1860, and left a large amount of property—estimated at two millions of dollars—to found an institution called the “Rose Beneficent Association,”[229] whose object it was to educate and train waifs picked up on the streets, and make them useful citizens. He gave the bequests upon the contingency of raising $300,000 from other sources within five years. If that sum was not so raised, the estate was given to other charitable beneficiaries. The utmost limit of the suspension was five years, but it was not circumscribed by lives as the Statute of Perpetuities requires, and it was adjudged to be void. It should be stated as a warning that this will of Mr. Rose was drawn by himself.The case occupied a long time in litigation, and the subject of charitable bequests was most exhaustively examined.[230]