author: O’Brien, J.

text:
    Juan Luis Dammert et al., Ancillary Executors, Resp’ts, v. William Henry Osborn et al., App’lts, and The Sociedad De Beneficiencia De Lima, Resp’t.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Will—Foreign—Perpetuities.
    The_ statute against perpetuities applies to domestic wills that by their provisions are to be executed here, and does not render invalid a bequest under a foreign will, which is valid under the law of the country where made, because it is not in conformity with said statute.
    2. Same.
    Our courts cannot confer title to personal property under a foreign will upon a claimant here otherwise than in accordance with the law of the country where the owner was domiciled when he made the will.
    3. Same.
    A resident of Peru, who died in that country, provided by his will that a portion of his estate should be devoted to founding in this state a home for children. No direct bequest of the fund was made to any person or .corporation, but it was provided that it should be managed by a board of managers to be appointed fivm a list of persons named. The will also provided that the founding of the institution should not take place until two years alter the board received the fund, so that the purchase of land and erection of buildings should be done with the income accumulated during that time. The will also provided that a certain society in Lima, Peru, should receive all legacies of public interest. The board of managers selected were incorporated by an act of the legislature by which they were expressly empowered to accept and receive the gift. Held, that the bequest was not invalid under our statutes against perpetuities and accumulations, and that the corporation so created was entitled to the fund.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term adjudging that a bequest in testator’s will was invalid, and directing the fund to be remitted to the courts of testator’s domicil.
    Wm. G. Choate, for app’lts; Frederic R. Coudert and David Milliken, Jr., for resp’ts.

      Reversing 48 St. Rep., 602.

   O’Brien, J.

Jose Sevilla, residing and domiciled at Lima, in the republic of Peni, died there on the 9th of December, 1886, having made and published his last will and testament, bearing date July 2, 1885, by which he disposed of a large estate, consisting mostly of personal properly, a considerable portion of which, or the evidences thereof, was at the time of his death actually within this state. The will was duly proved and establish¿d under the usual and proper judicial proceedings in the courts of the country where the testator was domiciled, having by law- jurisdiction in such cases, and executors appointed pursuant to its provisions. These executors, residing in Peru, together with the appointed heirs and residuary legatees, caused the will or a copy thereof to be recorded in the office of the surrogate of New York, and thereupon, with their assent and upon their motion, the plaintiffs were appointed ancillary executors in this state, and having qualified and entered upon the duties of the trust, took into their possession the personal estate here. The single provision of the will out of which the questions arise which are involved in this appeal is a charitable bequest for the education of poor female children in the city of Hew York.

The several clauses by means of which the testator sought to accomplish this purpose are quite elaborate and formal, and their substance and effect will be sufficient to give a clear view of the general purpose, as well as the mode in which it was to be executed. The testator states in the will that in the previous year, 1884, he executed a will by which he left the larger part of his fortune to found an institution in Hew York under the name of “ The Sevilla Home for Children,” and in which he formulated the details of support and management, but in view of the unfortunate situation of his relatives and various persons dear to him, he deemed it necessary to reconcile this desire with his duties to his family. He then proceeds to declare that it is his will that there be established in the city of Hew York, and permanently maintained, an institution to be known as the “ Sevilla Home for Children,” to be managed by his executors and a board of philanthropic managers, and devoted to the education of poor female children.

He directed that in all matters relating to the institution a prudent economy be observed; that the buildings be adequate to the end to be attained, constructed to receive from fifty to one hundred children and the teachers required, the land to be purchased and buildings erected at moderate prices. The managers were empowered to make rules for the government of the institution in the best manner, not forgetting the following conditions : (1) Only very poor children, from five to ten years of age, fit for apprenticeship and free from ailments, were to be admitted, to remain in the home until they attained the age of sixteen. (2) The food and clothing to be economical and suitable, and the latter to be of uniform pattern and color for all. (3) The instruction to be primary and upon the basis of a moral education, with directions as to the practical branches to be taught. (4) Day scholars to be admitted providing they did not occasion expense, to be kept apart from the boarders in order to preserve the moral tone. He then gives directions for investing any money earned by the children, whenever that was possible, one-half to be paid to them at sixteen, and the other half devoted to the support of the school. The number of children to-be always subordinate to the resources, preference to be given to natives of Peru, upon the recommendation of Peruvian consuls at Hew York or the place where application was made. The fitness of the children being proved, the managers could not, within the limit as to numbers, refuse them admission for any motive whatever. The board of philanthropic managers to be composed of seven prominent citizens of the city of Hew York, to be selected by the surrogate from a list which the testator named. For the purpose of founding and endowing the institution, five hundred thousand dollars was bequeathed in the securities constituting his estate, at par, to be delivered to the board by the executors. The board was directed to postpone the purchase of land and - construction of buildings for two years after delivery of the securities, in order that the school should be founded with the accumulated interest in that period, without reducing the principal sum for that purpose. The executors and appointed heirs were directed to transmit to the municipality of Hew York a copy of the clauses of the will relating to the institution, and the testator requested the municipal authorities to watch over and care for the fulfillment and performance of the will in this regard. The trustees were appointed in conformity with the terms of the will and accepted the trust and have been made defendants in this action. The plaintiffs, as ancillary executors, have possession of the securities devoted by the will to the founding of the home and hold the fund bequeathed, subject to the order and direction of the court. The trustees, or philanthropic managers, as they are designated by the will, applied to the legislature of this state for incorporation, and upon this application chapter 17 of the Laws of 1889 was enacted, by which they and such other persons as they might associate with themselves, in accordance with the provisions of the will, were created a body corporate and politic under the name and title of the “Sevilla Home for Children.” The incorporators were by name declared to be the permanent trustees of the corporation in accordance with the will of the testator, and in case of a vacancy by death, resignation or otherwise, the survivors were empowered to fill it in accordance with the directions of the will, as near as maybe, so that the number should be kept at seven. The trustees were given full power to control and manage the corporation, and for that purpose to make by-laws and appoint such agents and officers as might be deemed necessary, and to fix their tenure of office as well as their own. The corporation was declared to possess all the powers and, except as otherwise provided by the act, to be subject to the provisions of the Revised Statutes. It was expressly empowered and directed to accept and receive the gift bequeathed by the will, upon the terms and conditions there expressed, and power was conferred upon it to enter into any obligation in order to secure compliance with such terms and conditions. In addition to the powers conferred by law upon corporations, it was declared that this corporation should have power and capacity to establish and maintain a home for the education of poor children in the city of New York as provided in the will, and for that purpose to demand and receive the fund bequeathed by the will for that purpose, and to hold, manage and dispose of the same in such manner as might be best calculated to carry out the objects and purposes indicated by the testator. The trustees accepted the trust under the act of incorporation and organized under it. The will contains various other large bequests to relatives and friends and for charitable purposes, the validity of which are not involved in this action, and, so far as appears, they are not questioned by any one. In the thirty-sixth clause the persons are designated by the testator who were empowered to administer the estate and carry out the will, and, in what seems to be the language of Peruvian law, they are called executors and appointed as testamentary heirs, and they were, by the terms of the will, to co-operate with the trustees in founding the institution and administering the gift.

The plaintiffs, in their complaint, state all the facts and ask forth e judgment of the court with reference to the disposition of the fund in their hands. The defendants are the trustees named in the will and the corporate body created upon their application, and the executors, appointed heirs and residuary legatees named by the testator. It appears that they were all served, but none of them answered or made any claim to the fund except the corporation known as the Sevilla Home for Children, the trustees and the Sociedad de Beneficiencia de Lima, one of the residuary legatees. The latter is the only party to the action who really disputes the right of the corporation or the trustees to the fund.

The learned judge before whom the cause was tried at the special term held that the bequest for the Sevilla Home was void, as contravening the statute of this state against perpetuities and for other reasons, and that none of the defendants were entitled to receive the gift, and he directed that the plaintiffs account for the fund to the executors and appointed heirs in Peru, and to that end that the fund be remitted to that country without determining to whom the beneficial interest in the fund belonged. The general term has affirmed the judgment, and the Sevilla Home and its individual trustees have appealed to this court.

At every stage of the inquiry pressed upon us by this appeal it is important to keep in view a fundamental fact, established by uncontradicted evidence at the trial and conceded upon the argument, and that is that the bequest to the Sevilla Home was perfectly valid by the law of Peru, the domicil of the testator, which governed his personal property wherever it was at the time of his death. The validity of the gift by the law of the domicil necessarily involves the conclusion that it is not affected, under that law, by the fact that at the time of the testator’s death there was no trustee competent to take, or that the estate did not vest within a period measured by lives, or by the general and indifinite nature of the trust, nor any other local rule that would defeat the intention of the testator in case it had been a domestic will. The general principle that a disposition of ¡personal property, valid at the domicil of the owner, is valid everywhere, is of universal application. It had its origin in that international comity which was one of the first fruits of civilization, and in this age, when business intercourse and the process, of accumulating property take but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than ever. It would be contrary to the principles of common justice and right upon which the rule is founded to permit a testamentary disposition of personal property, valid by the law of the domicil, to be annulled or questioned in every other country where jurisdiction was obtained over the property disposed of or the parties claiming it, except for the gravest reasons. There are, no doubt, some exceptions to the rule founded upon considerations of public policy and necessity. Foreign contracts or dispositions of property which, if carried out, would endanger the public moral, or the public safety, or undermine the political or social fabric, or subvert the administration of justice, or had other evil tendencies, are not within the rule, as the right and duty of self-preservation is higher and stronger in every community than any obligation founded in comity.

But the object of this bequest, instead of tending to such results, was highly laudable and commendable, and certainly there is no public policy that forbids its execution. The law allows and in every proper way encourages such gifts, and sustains them, when capable of execution, and even when they are not, it does not hold them void, if valid under the law of the domicil, and it is only in cases where there is no adequate legal regulation for administering or carrying them into effect that the property will be remitted to the government of the domicil for administration. None of the parties in this case have acquired any title to the fund in question that they are not given by the law of Peru. Our courts may in certain cases decline to admisister the gift, and remit the property to the principal seat of administration, but they cannot divest the title of one or transfer it to another contrary to the law of the domicil. That law is part of the disposition.and the foundation of all title under it, and it cannot be disregarded to the prejudice of one and the benefit of another any more than the other parts of the instrument. There is no law that forbids gifts to charity here by testators in other countries, or that requires us to reject the gift unless it is made, in all respects, in conformity with our local law. There is no public policy on that subject except what is to be found in the language of the statute, and that provides that “the absolute ownership of personal property shall not be suspended by any limitation or condition whatever for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or, if such instrument be a will, for not more than two lives in being at the death of the testator.” 2 E. S. (6th ed), 1167.

When that statute was passed it was not within the legislative purpose to interdict dispositions made in other countries to take effect here. There is nothing in the language used that indicates such a purpose. There are other statutes that invalidate testamentary gifts to certain corporations unless made within a certain time before death where the testator had wife, children or parents. The purpose of these statutes is evident. They were intended to prevent improvident and hasty bequests to the prejudice or neglect of those natural obligations which the law also imposes upon the citizen. But these restraints applied to members of the political community from which the law emanated, and not to persons in other countries where no such restrictions existed,' and who desired to give according to their own laws. Bequests by such persons to those corporations, without regarding the statutes referred to, would be good if valid at the domicil of the testator. Hollis v. Drew Theo. Seminary, 95 N. Y., 171. It is no part of our public policy to condemn such gifts to charitable or benevolent corporations here. Our law permits the citizens or subjects of other countries to dispense charity here in such measure as they wish and according to such methods as their own laws prescribe. The policy that dictated our statutes against perpetuities and accumulations did not anticipate any danger from abroad, and our recent decisions are to the effect that they are local in their general scope and effect. Cross v. U. S. Trust Co., 131 N. Y., 330; 43 St. Rep., 254; Hope v. Brewer, 136 N. Y., 126; 48 St. Rep., 834.

In the first case cited we held that a testamentary disposition of personal property in trust, by a person domiciled in another state, valid by the law of the domicil, though in some respects contrary to our statute, was not void, and we refused to annul the will of the testator that had taken effect and been acted upon here for many years. In the second case we refused to interfere with a testamentary disposition in a domestic will containing a trust for a charity in a foreign country, where it was valid and capable of being executed and enforced, although perhaps under our law the beneficiaries were not sufficiently defined and it may have been open to other objections. The trend of these cases is unquestionably towards the conclusion that our statutes apply to domestic wills that by their provisions are to be executed here. An accumulation to take effect in another country or a bequest made there to take effect here was not within the intention of the legislature when these statutes were framed. There is, however, this clear distinction between the cases cited and the one at bar. In the former we were not asked to aid in any way the execution of the will or the administration of the trust, but to declare it void at the suit of heirs or next of kin. The parties who stood upon the dispositions of the will simply asked us to allow them to execute the testator’s purpose with respect to his property and to manage their own business in their own way. But in this case we arc asked, virtually, to put the Sevilla Home in possession and control of the fund, and thus give active aid and assistance in the enforcement of a trust which, in a domestic will, would doubtless be void, and therein is the real difficulty which the situation presents. The objection to this relief, which, under ordinary circumstances, might be formidable, has been, we think, greatly obviated, if not entirely removed, by the legislation which has been enacted since the death of the testator. That has a much broader scope and operation than the mere creation of a corporate body. It is an expression of the will of the supreme legislative power that the gift in question should be received and administered in the manner and for the objects designated in the will, as near as may be, and thus every existing legal obstacle to the execution of the testator’s purpose must be deemed to have been suspended or pro tanto repealed. The legislature in effect said that, notwithstanding the indefinite nature of the trust, if it was indefinite, or the circumstance that the testator did not appoint a trustee competent to take, so that the absolute ownership was suspended for a period not measured by lives, this gift shall take effect, according to the intention of the donor, and be administered by a corporate body of its own creation.

The legislature had the power to so enact unless, in the meantime, the title or beneficial interest had vested in heirs, next of kin or legatees, and as, under the law of the domicil, it did not, the power of the legislature to accept a gift that was awaiting a competent trustee to administer it could not well be doubted. It is not important to ascertain or decide where the title to the fund was lodged in the meantime. It was wherever the law of Peru placed it!" Whether in the executors, for the purpose of delivering it to the trustees, or in abeyance, it matters not. So long as that law would not permit it to vest in any other person, and for any other purpose, no property right was violated by the legislation. Had the title vested elsewhere in the meantime, in consequence of the invalidity of the bequest, or for any reason, of course that title could ■ not be disturbed by the legislature. But by force of the law. of the domicil, upon the facts disclosed by the record, if the fund should he remitted to the executors in Peru, pursuant to the judgment, they would, in the discharge of the trust imposed upon them by the testator, he bound to pay it over to the Sevilla Home for the purpose declared in the will, as the legislature had, subsequent to the death of their testator, created a competent body to execute that purpose without affecting any private right. The necessity or expense of such circumlocution is not perceived. Generally whatever the law will permit to be done indirectly may be done directly.

There is another and more recent statute that has some application to this case, as it is the last expression of the legislative will on the subject, and discloses what our public policy is with regard to such bequests. By chapter 701 of the Laws of 1893, entitled “An act to regulate gifts for charitable purposes,” it is enacted that no such gift, when valid in other respects under the law of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries in the instrument creating the same. That in such cases when a trustee is named the title shall vest in him, and if no' person is named as trustee, then the title shall vest in the supreme court, and in all cases of bequests to charitable uses, where the beneficiaries are not definitely designated, that court shall have full control, and it shall be the duty of the attorney-general to enforce the trust and represent the beneficiaries. This statute indicates an intention on the part of the legislature to enforce and uphold charitable bequests not heretofore recognized as valid, and it may be regarded as the first step in the direction of modifying that body of law which this court has built up on the ruins of the system outlined in Williams v. Williams, 8 N. Y., 525.

The result which the second division of this court was constrained to reach in a recent case of public importance, no doubt had some influence in creating the sentiment which-is embodied in the law. Tilden v. Green, 130 N. Y., 29 ; 40 St. Rep., 512.

It seems to be assumed, on the part of the defendants, that these statutes can have no application to this case, inasmuch as they were not enacted until after the testator’s death. That would be so had the property vested otherwise than for the purpose of founding the home; but as it did not under the law of the domicil it could not under the law of the forum. When a court of equity obtains jurisdiction and all the facts are before it by supplemental pleading, as they are here, it may and generally does adapt the relief to the situation existing at the close of the litigation. Peck v. Goodberlett, 109 N. Y., 181; 15 St. Rep., 182; Mad. Ave. Bap. Ch. v. Oliver St. Bap. Ch., 73 N. Y., 83.

The case turned in the court below upon views of public policy with respect to the enforcement of the donor’s will, but what that policy actually is should be determined by the situation existing at the time the court is required to make its decree disposing of the fund, and the statutes referred to have an important bearing upon that question.

It is urged that the corporation created at the request of the philanthropic managers, and known as the Sevilla Home for Children,” is not the instrument or agency which the testator selected for the execution of his purpose, and that to permit it to receive the fund and found the institution is practically making a new will. We are not impressed with the force of this objection. The testator did not profess to be and evidently was not informed with respect to the legal formalities and details which were necessary in another country to carry his purpose into effect The trustees were, therefore, charged with the duty of making effective the object he had in view through such legal organization as became necessary, and if it became essential, as it did, do clothe themselves with corporate powers, that was fairly within the scope of the general scheme just as it would be to organize the board in any other way. Moreover, it is reasonable to conclude that when the testator charged the municipal authorities of New York with the duty of watching over the institution which he desired to found and to see to it that his purpose was earned out, he contemplated some action on the part of the government within whose jurisdiction the institution was to exist, and so the state, in the exercise of its plenary power, created a corporate body to receive and administer the gift to the end that the purpose of the donor should not be frustrated. This was in aid of the general scheme and did not divert the fund to other hands or subject it to control and management not fairly within the testator’s intention. The appeal which he made to public authority was a fair subject for the consideration of the legislature, and it was heard in a manner that did not contravene the law under which the disposition was made, or ignore his will.

The interference of the legislature for the purpose of validating gifts to charity in foreign wills to take effect here, which would be invalid in domestic wills, is not a new or extraordinary exercise of its authority. Chapter 241 of the Laws of 1876 was passed, for that purpose, and effect was thereby given to such a bequest in a Massachusetts will, where it was held to be valid by the courts of that state, and, but for the statute, would have been void here. Fellows v. Miner, 119 Mass., 541.

The discussion thus far has left entirely out of view the claim of the defendant, the Sociedad de Beneficiencia de Lima, as residuary legatee. It not,necessary to refer to all the questions involved in the argument in its behalf, as they are all disposed of by a few propositions which, I think, are controlling. In its answer it is expressly admitted that the will is valid under Peruvian law, but it is alleged that, by the terms of the instrument, it became entitled to receive the bequests to the institutions named therein in case the donees refused to receive them, and when the designated beneficiary was unable to take, or when the bequests prove to be inadequate for the specific objects, but it is not alleged that any of these contingencies have happened, or that any of the conditions upon which the alleged right depended exist. The claim to the fund is founded upon the will, and that alone. The meaning of the language which the testator employed, and its legal effect and construction, must be determined by the law of the domicil, and it is not alleged or claimed that when thus construed any title or interest in the fund in question are vested or can vest in this defendant, but the contrary is clearly involved in the admission that the bequest to found the home is valid under the foreign law. The contention of the Sociedad seems to be that the bequest is not one that would be recognized as valid in a domestic will, and, therefore, our courts should construe the will, and adjudge it to be entitled to the fund. This position is based upon a misapprehension in regard to the true nature and character of the jurisdiction which courts have long been accustomed to exercise in such cases.

Our courts cannot confer title to personal property under a foreign will, upon a claimant here, otherwise than in accordance with the law of the country where the owner was domiciled when he made the will. That law must first determine where the title goes. We may adopt our own methods for ascertaining by proof, or otherwise, what the foreign law is, as a question of fact, but once ascertained, it must be applied in determining the rights of parties who have invoked the jurisdiction of our courts for the settlement of their claims to the property. When the exercise of this jurisdiction involves the violation of some rule or principle of public policy the courts may decline to proceed any further, and remit the property or its proceeds to the home tribunals. Despard v. Churchill, 53 N. Y., 198. The Sociedad does not in its answer, or in the argument before this court, ask us to remit the fund to Peru, but to adjudge that it is entitled to it under the will, construed by our law, contrary to the law of the country which conferred upon the testator the power to make it, and which is the source from which its owrn corporate existence and capacity to hold property are derived. This would require us to disregard not only the rules of comity that prevail and are recognized and acted upon by all civilized nations, but principles of common justice applicable to property rights as well. There is still another answer to the contention. We have seen, that the only issue that the Sociedad made in the courts below was one of title to the'fund under the will when construed according to our law. The trial court was .requested in various forms to rule and decide that the title to the fund vested in it, and that it was entitled to receive it, which requests were refused and exceptions taken.

The appeal to the general term by the Sociedad resulted in an affirmance-of the judgment, but it has taken no appeal to this court, and in this state of the record I am unable to see how its claims on the questions which it raised below are before us.

It is proper, however, to say that we have examined the clauses of the will upon which the- claims are based, and are of the opinion that, even if we feel at liberty to construe the language for ourselves, as in cases of domestic wills, instead of adopting the construction which the law of Peru imports into the instrument, the testator did not intend, upon any contingency that has occurred, to vest the title in this defendant.

The will probably does confer upon it some power with reference to the collection, receipt and disbursement of the assets of the estate, but even this could hardly be held to apply to the fund in question, unless at the time of the testator’s death the property was in Peru. There is nothing in the language used that would require a court to hold that the testator required the securities found here to be first transmitted to the Sociedad in Lima, before they could be devoted to the founding of the home. The contingencies upon which certain bequests were to fall into the residuary fund are to be understood in the light of the law under which the disposition was made, and, thus construed, this is not a ease where the gift fails for want of a beneficiary or trustee competent to take.

There are some minor questions in the case, but the view taken in regard to the effect of the law of the domicil and the legislation of this state upon the rights of the parties renders it unnecessary to consider them, and this necessarily leads to the conclusion that the defendant corporation, the Sevilla Home for Children, is entitled to the fund for the purpose indicated in the will and the act of incorporation.

This court has the power to direct a final judgment that the plaintiff or ancillary executors discharge the debts of the testator, if any, remaining in this state, and pay the balance of the fund to the home. Code, § 2701. There are no disputed questions of fact, and there seems to be no necessity for another trial. Final judgment should, therefore, be directed in accordance with the principles herein stated.

The judgment should be reversed, and final judgment directed in favor of the Sevilla Home for Children, with costs to all parties as awarded by the court below, and to the plaintiffs in this court, payable out of the fund.

All concur.