Summary
In Vansyckel v. Johnson, 80 N. J. Eq. 117, 70 Atl. 657, the present Chancellor, then sitting as Vice Chancellor, discussed the matter of the intermingling of private charities with those that are not charitable.
Summary of this case from Tichenor v. Mechanics & Metals Nat. Bank of City of NewyorkOpinion
08-13-1908
VAN SYCKEL et al. v. JOHNSON et al.
Paul A. Queen and Bennet Van Syckel, for complainants.
(Syllabus by the Court.)
Bill by Bennet Van Syckel, as surviving executor and trustee under the will and codicil of Aaron Van Syckel, deceased, and others, against William Johnson and others, for construction of the will. On bill and ex parte proofs. Decree for complainants.
Paul A. Queen and Bennet Van Syckel, for complainants.
WALKER, V. C. This bill was filed by the surviving executor and trustee under the will and codicil of the late Aaron Van Syckel, and by other persons beneficially interested in the estate of the testator as residuary legatees, for the construction of the second codicil to the testator's will, and for direction as to the distribution of the trust fund therein created, in case that provision of the codicil shall be held to be invalid. So much of the codicil as is pertinent to this inquiry reads as follows: "Second. I give and bequeath to my executors, or the survivors or survivor of them, the sum of six thousand dollars, in trust, nevertheless, that they or the survivors or survivor of them will invest the sum, either in good railroad securities or good and sufficient bond and mortgage on real estate as in their judgment they may think best, and pay the interest accruing thereon annually, first, to keeping up in good repair and condition that part of the graveyard attached to the Bethlehem Baptist Church, where my family are buried; second, to keeping up in good condition and repair the rest of said graveyard; third, if said Baptist Church shall fail to make up the salary of the pastor of said church, that then and in that case the balance of said interest, or so much of it as is necessary, shall go towards making up the salary of said pastor; and in case the balance of said interest shall be more than is necessary for that purpose, then the balance of said Interest remaining, after the payment of the said salary, shall be added to the fund of six thousand dollars from year to year, and the interest arising from such fund shall he appropriated and invested as is hereinbefore directed—the said several sums to be paid by my executors, or the survivors or survivor of them, either to the persons entitled to receive the same, or to the trustees or trustee of said church, as they shall think proper, and the receipt of the person or persons entitled to receive said interest, or the receipt of the said trustees, or any one of them, shall be a sufficient voucher for the same. And in case the said Baptist Church shall go down, or there shall be no regular Baptist Church service hold in that place, then, after keeping the said graveyard in condition and repair as aforesaid, the balance of said interest shall be divided as I have directed the residue of my estate to be divided in my said will to which this is a codicil; and in case both church and graveyard, shall go down and become extinct, then it is my will and I do order and direct that the whole sum of six thousand dollars, with whatever additions may have been matle thereto, shall revert, and go back, and be considered as part of my estate, and be divided as the residue of my estate is ordered to be divided by said will, to which this is a codicil."
The defendants are the trustees of the Bethlehem Baptist Church and also those residuary legatees under the testator's will who are not complainants in the cause. None of the defendants answered, and the bill was taken as confessed, to the end that such decree might be made as the Chancellor should think equitable and just. The cause was brought on for hearing by the complainants ex parte, and two of the defendants, Daniel Johnson and William E. Johnson, trustees of the Bethlehem Baptist Church, were examined as witnesses. They testified that David Beers, the other trustee, who was made a defendant, was not a member of the church, having taken his letter and joined another church; that there were formerly five trustees, but the others have not acted for four or five years, the last election being held about six years ago; that there were about 45 members, scattered through a farming community; that the last meeting of the board was held five or six years ago; that they have had no regular pastor since the spring of 1904, after which time they procured a supply, who preached every two weeks until the fall of that year (1904), since which time they were without a pastor or any services until the summer of 1907; that during the month of July (1907) they arranged with a pastor for preaching every two weeks in the afternoon of Sundays, at no stated salary, but whatever they could afford to pay; that on August 18, 1907, the members extended the supply pastor a call, no salary being fixed, and he accepted and was to preach Sunday afternoons every two weeks, but he has not been paid, for the reason thatthey have not had funds wherewith to pay him; that the graveyard is in good shape, having been taken care of by some one other than the trustees—in fact, by one of the Van Syckel family, but not out of the fund in question; that they have no regular sexton; that the woodwork of the church, a stone one, has not been painted for about 50 years; that what work has been done to the fences has been done by the Van Syckel family; that without the income from the trust fund they cannot run the church, there not being people of sufficient means (members or not members) to do it, and very little money can be raised; that they are desirous of keeping up the church, but cannot do so without the aid of the fund, for the reason that without its aid the pastor preaching every two weeks will leave, as they cannot raise sufficient moneys to pay him; that other churches have been built (in the vicinity, presumably), and members have moved away and died since the raising of the trust fund by the late Mr. Van Syckel, leaving the church in question in a weak condition.
It is not necessary to decide whether, within the meaning of the codicil, the church has gone down, or that there are no regular Baptist Church services held there, so that, after keeping the graveyard in condition and repair, the balance of interest, arising from the fund, may be divided as the testator directed concerning the distribution of his residuary estate, or whether both the church and graveyard have gone down and become extinct, so that the whole of the trust fund, with its additions, if any, shall revert to and be considered a part of the estate of the testator, to be divided as provided for the disposition of his residuary estate, because, in my judgment, the bequest is void as a perpetuity. In Hartson v. Elden, 50 N. J. Eq. 522, 26 Atl. 501, Chancellor McGill held that a provision by a testator that the interest of a certain portion of his estate should be used to keep in repair the grave of his wife and himself, and that the remainder of the interest should be employed in the general improvement of the cemetery, were void under the rule against perpetuities, because neither trust was for a public charity, which ordinarily is not within the rule referred to, for the trusts under consideration extended no farther than the establishment, preservation, and improvement of private property. To the same effect is Corle's Case, 61 N. J. Eq. 409, 48 Atl. 1027, in which Vice Chancellor Reed held that a gift by a testator to his executor of a certain sum to apply the interest in keeping his burial lot in good order, and any surplus remaining to be used to repair fences around the graveyard, was void as an attempt to create a perpetuity, being neither a charitable bequest, nor a gift to a cemetery association, under Gen. St. 1895, p. 351, § 14.
It will be noticed that the bequest under consideration is not only for the keeping of graves in condition and repair, which is not a charitable use, but also to be applied toward the payment of the salary of the pastor of the church, if the church shall fail to make up the salary of the pastor. This is a gift for the maintenance of religious services, and is undoubtedly a charity, and, therefore, not subject to the rule against perpetuities (Mills v. Davison, 54 N. J. Eq. 659, 35 Atl. 1072, 35 L. R. A. 113, 55 Am. St. Rep. 594); but there is here a mixing of charitable uses with objects not charitable, and it is therefore void (Thomson's Ex'rs v. Norris, 20 N. J. Eq. 489). In De Camp v. Dobbins, 31 N. J. Eq. 671, a trust to a church, to aid the missionary, educational, and benevolent enterprises to which the church was in the habit of contributing, was upheld only because it was shown that the enterprises referred to were legal charities; chief Justice Beasley, who delivered the opinion of the Court of Errors and Appeals, remarking (at page 694): "It is urged that this entire trust cannot be said to be charitable, within the legal signification of that term, inasmuch as the word 'benevolent,' by its natural force, takes in objects and purposes that are not charities. That this term has this latitudinarian meaning was, upon full consideration, decided by this court in the case of Thomson's Ex'rs v. Norris, 20 N. J. Eq. 489. That exposition went on the ground of the intrinsic meaning and the unchecked form of the term, for on that occasion it was considered that there was nothing present tending to hem in or narrow its import." And at page 696: "It appears in the case, by the proofs, that this church has been in the habit of making donations to certain enterprises and objects, such as the foreign and domestic missions, the Bible Society, etc., all of which enterprises are charities in the legal sense of the term. When, therefore, this will declares the trust, and directs the property to be used 'to aid the missionary, educational, and benevolent enterprises to which the said church is in the habit of contributing,' the will itself provides a standard by which the word 'benevolent' is to be measured. The fund is not to be used to aid any benevolent enterprise, but only benevolent enterprises of a certain defined character, and they are charities. The word 'benevolent' is thus, by the context and the subject-matter, cut down into legal dimensions. From the first I have seen no difficulty on this point."
Like the trust which was held bad in Thomson's Ex'rs v. Norris, 20 N. J. Eq. 489, the trust in this case is for purposes charitable and not charitable, and therefore the bequest is bad for uncertainty. When an unascertainable part of a fund is given upon a void trust, and the residue upon a valid trust, the whole fails. Kelly v. Nichols, 17 R. I. 306, 21 Atl. 906, affirmed 18 R. I. 62, 25 Atl. 840, 19 L. R. A. 413. A deliverance precisely in point is that of the Supreme Court of Errors of Connecticut in Coit v.Comstock, 51 Conn. 352, 50 Am. Rep. 20, in which the court held that bequests to two ecclesiastical societies, to be invested as a permanent fund, and the Income, so far as necessary, to be applied in keeping certain burial lots in order, and the remainder to religious services in the societies, was void, remarking at page 386 of 51 Conn. (50 Am. Rep. 29): "But the bequests as they are, although some portion of the income is to be devoted to a charitable purpose, cannot be supported. If it were otherwise, it would be in the power of an individual to make a perpetuity of property to any extent, by devoting some small portion of the undivided income thereof to some charitable purpose. A little charity, in such a case, cannot preserve the entire bequest."
There will be a decree declaring the codicil to the will of the late Aaron Van Syckel to be null and void, and that the trust fund raised by the codicil be distributed as the residue of the decedent's estate is ordered to be divided by his will. As the proofs show the amount in the hands of Judge Van Syckel, the surviving executor, the decree to be entered in conformity with these views may ascertain the exact amount distributable.