Opinion
09-20-1897
SIEDLER et al. v. SYMS et al.
Washington B. Williams, for complainants. Charles L. Corbin, for trustee.
Bill by Grace Siedler and others against Parker Syms, executor of the estate of Samuel R. Syms, deceased, and others, for the construction of a will.
Washington B. Williams, for complainants.
Charles L. Corbin, for trustee.
STEVENS, V. C. The controversy arises over the sixth clause of the will of Samuel R. Syms, who died in November, 1891. The clause, so far as material, reads as follows: "Sixth. I direct my executors to transfer to such person as shall at the time of my death be the acting cashier of the First National Bank of Hoboken, New Jersey, eighty shares of the capital stock of said bank, now in my name, to be held and used by said cashier and his successor and successors in office in trust for the following uses and purposes, to wit: To collect and receive during the corporate existence of said bank, either under its present charter, or by virtue of any renewals or extensions thereof, the dividends made and declared payable from time to time thereon, and upon the first days of January in each and every year thereafter to divide and distribute such dividends equally among all the clerks and employes (including the cashier and janitor) of said bank who shall at the time of such distribution be actually employed therein, and whose employment in said bank shall have continued for a period of at least two years. * * * In case said bank shall, by dissolution or otherwise, cease to exist, then and in that event I give and bequeath the said eighty shares of stock, together with any increase of shares thereon as aforesaid, or the money payable in lieu thereof, to the Bank Clerks' Mutual Benefit Association of the City of New York, to be held and invested by said association as a part of its permanent fund, and the income arising therefrom to be used and employed as may be directed by the constitution and bylaws of said association." It is plain that neither the bequest to the cashier of the First National Bank nor the bequest over to the Bank Clerks' Mutual Benefit Association is charitable. Not being charitable, the objection made to these bequests is that they violate the rule against perpetuities. The gift, in the first instance, is to the cashier of the bank and his successors, in trust to collect and receive during the corporate existence of the bank, either under its present charter, "or by virtue of any renewals or extensions thereof," the dividends received, and "on the first days of January of each and every year thereafter to divide" them among the employes designated. If this is a trust which is to continue more than 21 years from the death of the testator, it is invalid. The bank was incorporated on June 19, 1865, for the period of 20 years. Its corporate life would have ceased on June 19, 1885, had it not been extended for a further period of 20 years under the provisions of the federal law of 1882. Its charter will therefore expire on June 19, 1905. It is admitted that at testator's death there was no act of congress under which any further extension was authorized, nor is there now. If the testator had limited the gift to the corporate existence of the bank, I should have thought—as we could only deal with the facts as they were at the time of testator's death, and as one of those facts was that the charter of the bank would expire within 21 years, and could not be extended beyond that time—that the gift was unobjectionable for the reason that the trust must have been completely performed within the legal period. But the testator has not limited the trust to the legal period. He has expressly declared that it shall continue during all renewals and extensions of its present charter. He has thus, in terms, provided for its indefinite prolongation,—for a prolongation which might perpetuate it far beyond the legal period. It is true that the life of the bank might terminate in 1905, either because of the refusal of congress to legislate further on the subject, or because of the refusal of the bank to continue its existence. But in the class of cases we are dealing with the question is not whether in the event that has happened or may happen the gift will have complete effect within the time prescribed, but, in the language of Baron Rolfe in Dungannon v. Smith, 12 Clark & F. *575, whether the gift, in all its different contingencies, must have such effect. It is an invariable principle in applying the rule in those cases, says Mr. Jarman, that regard is to be had to possible, not to actual, events; and the fact that the gift might have included objects too remote is fatal to its validity, irrespective of the event. 1 Jarm. Wills, *233. The decision in the case of First Presbyterian Church v. National State Bank, 57 N. J. Law, 27, 29 Atl. 320, affirmed in error, seems to me to have some pertinency to this part of the argument. There the bank had given to the church a sealed instrument in which it was agreed that, so long as the church would refrain from extending its buildings westward so as to obstruct the light on the south side of the bank building, "we [the bank] will pay to them [the trustees of the church] the yearly sum of $700, in quarter yearly payments, commencing on the first day of July next, and after that rate for any portion of a year." It appears from the record in that case that the bank was organized in 1865, and was to continue for 20 years. The covenant was made in 1872, and before any act of congress had authorized banks to prolong their existence. The bank took advantage of the act of 1882, and extended its corporate life for 20 years. One of the questions was whether the covenant was binding after the expiration of the original charter. I was counsel for the bank, and, both in the supreme court and in the court of errors, strenuously contended that this covenant must be read in connection with the charter and the act of congress, and that, so read, it was a contract to pay only during its original charter life; that at the time the covenant was entered into the law provided that at the end of 20 years the bank must terminate its existence, and that it must not thereafter perform any corporate act, except the act of winding itself up. But both courts, in adjudgingthe covenant binding on the bank in the year 1892, necessarily adjudged that it was a covenant to pay, not only during the period of the bank's existence under the original charter, but during such further extension of that existence as congress might thereafter authorize, and the bank choose to accept. This case decides that it was lawful to make, and that the parties did in fact make, a contract which was to operate beyond the time prescribed by the charter, and by the law as it then was, for the bank to exist, and that, too, without any words which in terms provided for such a continuance. In the face of this decision, it seems impossible to assert that it was not competent for the testator to provide, in terms, that his gift should be enjoyed by the employes of the bank under future extensions of the charter, if they should be authorized by congress. That he has done so is clear. The words, "by virtue of any renewals or extensions thereof," cannot be rejected without materially changing the scope of the bequest,—a bequest as much intended for the benefit of those employed by the bank 25 years hence, if the bank is then in existence, as now. His gift, therefore, being for the benefit of those who may be employes after as well as before the expiration of the legal period, will not, in all its different contingencies, have complete effect within the time prescribed.
It seems impossible, in the light of the adjudications, to split the bequest into two by reading it as a gift in trust—First, for such persons as might be employed by the bank under its present charter; and, secondly, for such as might be employed under future renewals and extensions of that charter. "When," says Baron Rolfe in the case I have mentioned, "a testator has made a general bequest embracing a great number of possible objects, there is no authority for holding that a court can so mold it as to say that it is divisible into two classes, the one embracing the lawful and the other the unlawful objects of his bounty." And that case, decided by the house of lords after hearing the opinions of 11 of the judges, affords the strongest possible illustration of the stringency of the rule. In the present case the court would give more effect to the testator's intention to confer a benefit on the employes of the bank, of which he had been so long president, if it declared that the gift was good, not only for the 14 years subsequent to testator's death (during which it would exist under its present charter), but also for such further period as would, with this 14 years, make up a term of 21 years, than it would if it declared that the gift was valid during the 14 years only. It would hardly be contended, however, that this could be done. If it could, it might with equal propriety have been done in the case of Detwiller v. Hartman. 37 N. J. Eq. 347, and in all those cases in which the testator has attempted to create a trust, not charitable, to continue indefinitely, or for a period beyond the legal one. As the first trust is void because it may endure too long, of course the gift over, which is not to take effect until the first trust is completely performed, must be void also.