Jenkins v. Guarantee Trust & Safe Deposit Co.

The opinion of the court was delivered by Gummere, J. This case presents for consideration the question of the validity of a legacy given to the Presbyterian Hospital, one of the ■respondents, by the will of Margaret K. Maxwell, a' resident ■of the State of Pennsylvania, and who, at the time of her death, 'was domiciled in that state. The facts upon which the decision ■of this question turns are these: In 1878, Mrs. Maxwell joined with her husband in executing a deed conveying to the Guarantee Trust and Safe Deposit Company (respondents herein) certain lands belonging to him and lying in New Jersey, in trust, to hold said lands for the benefit of the grantors, or the survivor of them, during their lives, and, at the death of the survivor, to hold the same for the benefit of such person as said survivor might by will appoint. And in «default of such appointment &c. Mr. Maxwell died in 1886, and, by his will, left all his estate, real and personal, to his wife. Mrs. Maxwellsurvived her husband several years, and died on August 8th, 1891, leaving a last will and testament, executed five days before her death, in which, among other things, after reciting the above power of appointment, she made the following provision: “ Now, therefore, as such survivor, and in exercise and pursuance of said recited power and authority, I hereby direct, limit and appoint, and I devise the said trust estate and lands in said deed mentioned, and I also give, devise ■•and bequeath all the rest and residue of my estate, real and personal, to the Guarantee Trust and Safe Deposit Company [her executor] in trust, to hold the same &c., and I give, devise and bequeath my said residuary estate, and I direct my said trustee to pay out of the same the following legacies, namely: 'To the Presbyterian Hospital in Philadelphia the sum of five thousand dollars ; to [certain other legatees] one thousand dollars each, &e.; after payment [201] •out of my said residuary estate of said legacies, should any of the residue remain undisposed of, I give, devise and bequeath the same and I direct my -said trustee to pay over and convey the same to and among my brothers and ■sisters, share and share alike, their heirs and assigns. * * * “ I authorize and empower my executors and trustees for the purpose of paying debts and legacies and also for the general purposes of this will * * * •to sell at public or private sale all and any part of my real estate which I ■ may own, or over which I may have any power of disposition” &e. It is admitted that the estate left by Mrs. Maxwell, exclusive •of the land in New Jersey which was embraced in the trust deed, was insufficient to pay her debts, and it cannot be controverted that her will operates to dispose of those lands either as an appointment under the power created by the trust deed, or else as a devise of the property which came to her by virtue of her husband’s will. In this condition of affairs, the Guarantee Trust and Safe Deposit Company filed its bill in the court of chancery,, as executor -and trustee under Mrs. Maxwell’s will, asking the direction of >that court as to the payment of the legacy of $5,000, given to ■the Presbyterian Hospital, out of the proceeds of the sale of the property embraced in the trust deed. It was insisted, in the court below, on the part of the other :beneficiaries under the will of Mrs. Maxwell, that the legacy to ■the hospital, having been given by a will which was made only five days before the death of the testatrix, was void by virtue of -the provision of the eleventh section of the act of the legislature •of the State of Pennsylvania, relating to estates held for corporate, religious and charitable uses, which reads as follows: “No estate, real or personal, shall hereafter be bequeathed or deyised to any body politic, or to any person in trust for religious or charitable uses, except ■the same be done by will, attested by two credible, and at the time disinter■ested, witnesses, at least one calendar month before the decease of the testator; and all dispositions of property contrary hereto, shall be void and go to the •residuary legatee or devisee, next of kin, or heirs, according to law.” The learned vice-chancellor who heard the case considered that this insistment was without force, and that the hospital was entitled to be paid its legacy out of the proceeds of the sale of [202] the New Jersey land, notwithstanding the prohibition of the-Pennsylvania statute just cited; and he puts his decision upon the ground that there was no conversion of the land directed by the will, and that the laws of Pennsylvania, restricting testamentary power, can have no application or force in New Jersey so far as real estate located here is concerned. It seems to me that this decision rests upon an erroneous-basis, and that the question whether or not there was an equitable conversion of this land by the will of the testatrix is one which is of no materiality in the determination of this cause. There has been no devise of this land to the hospital; the testatrix has merely bequeathed to it a pecuniary legacy of $5,000, aud lias directed its payment out of her residuary estate. It is true that she has authorized the Guarantee Trust and Safe-Deposit Company, as her executor and trustee, to sell this land for the purpose of paying debts and legacies generally in case it. should be advisable to do so, but this does not in any way alter the character of the gift to the hospital, which still remains a-money legacy, and not a devise of land situate in New Jersey.. The law of the situs of this land merely regulates its sale, when that shall take place as provided in the will, and the passage-thereof to the purchaser. That is all. It has nothing to do-with the distribution of the proceeds of such sale among the creditors and legatees of the decedent. That distribution is-regulated by the law of the testatrix’s domicil, which, at the time of the making of her will and of her death, was Pennsylvania. Bruce v. Bruce, 6 Brown P. C. 550; Doglioni v. Crisbin, L. R. H. L. Cas. 301; Ennis v. Smith, 14 How. (U. S.) 400; Shultz v. Pulver, 3 Paige 182; Banta v. Moore, 2 McCart. 97; Harral v. Harral, 12 Stew. Eq. 279. The gift to the Presbyterian Hospital, contained in Mrs. Maxwell’s will, being a pecuniary legacy given by a person who was a-resident of and domiciled in the State of Pennsylvania, to a corporation of that state, is invalid by force of the eleventh section of the statute of that state relating to estates held for corporate, religious and charitable uses, hereinbefore referred to, having203 been made by a will which was executed less than thirty days before the death of the testatrix. The legacy being void, it must consequently fall into the residuary estate of the testatrix and be distributed therewith. The decree below should be reversed and the record remitted, in order that a decree may be made in accordance with these views. For reversal — The Chief-Justice, Dixon, Gummere, Lippincott, Van Syckel, Bogert, Brown, Krueger — 8. For affirmance — Magie, Reed, Sim:s — 3.