#### TRUSTEES OF AMHERST COLLEGE et al. v. RITCH et al.

(Supreme Court, General Term, First Department.

December 18, 1895.)

1. Wills—Estate of Legatee—Promise to Hold for Another.

Where a testator devises his residuary estate to his executors absolutely,, but with the understanding that they shall distribute the same among certain beneficiaries named in the will, the residuary legatees acquire no-personal interest in the residuum, but take it as trustees.

2. Same—Bequest to Charity—Validity.

Laws 1860, c. 360, § 1, providing that no person having a husband, wife,, child, or parent, shall bequeath to any charitable corporation more than one-half of the estate after payment of debts, etc., is for the protection of the class of persons specified therein, and if they, voluntarily and for a valuable consideration, release their interests under the will, no one else-can impeach its validity.

Appeal from special term, New York county.

Action by the trustees of Amherst College, the trustees of Dartmouth College, the trustees -of Hamilton College, the University of Rochester, and the president and trustees of Williams College against Thomas G. Ritch and others. Judgment was ordered directing that the residuary estate devised and bequeathed to defendants Ritch, Bulkley, and Vaughan was received and held by-them in trust for plaintiffs Yale College, Cornell University, Wesleyan University, Trinity College, the Hampton University of Virginia, Lincoln University, the University of Virginia, Randolph and Lincoln College, Columbia College, Union College, and the-*577Northwestern University, and that defendants be enjoined from distributing the residuary estate, and that they account for moneys received by them under the will before a referee appointed to take and state their accounts.1 From said judgment, defendants Thomas G-. Bitch, Justus L. Bulkley, and Henry B. Vaughan (individually and as trustees and executors of the last will and testament and codicils of Daniel B. Fayerweather, deceased), John B. Reynolds and Morris B. Beardsley (as executors of the last will and testament of Lucy Fayerweather, deceased), Mary W. Achter, Emma S. Drury, the president and fellows of Yale College, Rutgers College, the University of the City of New York, the Woman’s Hospital, the Brown University, the Peter Cooper Union, the New York Cancer Hospital, Barnard College, the Manhattan Eye & Ear Hospital, the New York Eye & Ear Infirmary, Trinity College, Elmira Female College, the Presbyterian Hospital, the Shattuck School, the University of Pennnsylvania, Haverford College, the Montefiore Home for Chronic Invalids, Wells College, trustees of the College of New Jersey, the Mount Sinai Hospital, the president and fellows of Harvard University, Vassar College, the trustees of Union College, St. Vincent’s Hospital, the Manhattan Dispensary, the Methodist Episcopal Hospital, St. Luke’s Hospital, and the trustees of Columbia College, appeal.

Affirmed.

This action was begun in June, 1893, by 5 of the 20 legatees (all educational corporations) mentioned in the ninth clause of the testator’s' will, to recover a judgment declaring that Thomas G. Bitch, Justus L. Bulkley, and Henry B. Vaughan took the property devised and bequeathed to them (the-residuary estate) in trust under the tenth clause, as modified by memorandums signed by the testator for said 20 educational corporations. The executors of the testator’s widow, his heirs, next of kin, his executors, devisees, legatees, and the beneficiaries in the deed of gift executed by Bitch, Bulkley, and Vaughan, February 21, 1891, are defendants. In addition to the appellants, the following defendants filed and served answers herein: Lincoln University, Lafayette College, Northwestern University, Park College, Wesleyan University, Marietta College, St. Vincent’s Hospital, the president and trustees of Bowdoin College, the rector and visitors of the University of Virginia, Cornell University, Maryville College, Wabash College, and the Union Theological Seminary. It was held at special term that the residuary estate devised and bequeathed to Bitch, Bulkley, and Vaughan was held intrust by them, under the tenth clause of the will and memorandum of March 22, 1889, for the following purposes: (1) To pay to the Northwestern University $100,000, with a proportionate share of the income of the residuum, (none of the litigants contesting); and (2) to divide the remainder equally among the 20 educational corporations mentioned in the ninth clause. None-of the parties, except those designated as appellants in the title of this-opinion, have appealed, and they are divisible into four classes: (1) The executors of Lucy Fayerweather (the testator’s widow) and two of the testator’s heirs and next of kin, who assert that by the will and codicils the testator devised and bequeathed to Bitch, Bulkley, and Vaughan the residuary estate in trust to be divided equally among said 20 educational institutions, and that, under chapter 300 of the Laws of 1800, only one-half of the testator’s estate could be legally devised and bequeathed to such institutions. (2) Thomas G. Bitch, Justus L. Bulkley, and Henry B. Vaughan, the residuary devisees and legatees, who assert that under the will and codicils they took the residuary estate, with power to dispose of it, and that the beneficiaries mentioned in their deed of gift are severally entitled to *578hold the sums assigned to them. (3) The donees under the deed of gift. (4) The trustees of Columbia College, one of the 20 corporations mentioned in the ninth clause, wherein it is bequeathed $200,000, and one of the 6 residuary beneficiaries mentioned in the deed of gift, which appealed, but filed no brief in this court.

October G, 1884, Daniel B. Fayerweather, a resident of this city, executed his last will and testament, by which he made various specific devises and bequests to individuals, the validity of which is not questioned, and none of its clauses require consideration, except the eighth, ninth, and tenth, which are as follows:

“Eighth. After the payment of the legacies and bequests hereinbefore made, I give and bequeath to the Presbyterian Hospital, located in the city of New York, the sum of $25,000; to St. Luke’s Hospital, in said city, $25,000; to the Manhattan Eye and Ear Infirmary, in said city, $25,000; to the Woman’s Hospital, in said city, $10,000; to Mount Sinai Hospital, in said city, $10,000.

“Ninth. Subject to the conditions and limitations in this paragraph hereinafter contained, I give and bequeath to Bowdoin College, at Brunswick, Maine, the sum of one hundred thousand dollars; to Dartmouth College, at Hanover, New Hampshire, the sum of one hundred thousand dollars; to Williams College, at Williamstown, Massachusetts, the sum of one hundred thousand dollars; to A&herst College, at Amherst, Massachusetts, the sum of one hundred thousand dollars; to Wesleyan University, at Middle-town, Connecticut, one hundred thousand dollars; to Yale College, at New Haven, Connecticut, three hundred thousand dollars, of which one hundred thousand dollars shall be used for the purposes of the Sheffield Scientific School, connected with said college; to Columbia College, in the city of New York, two hundred thousand, dollars; to Union Theological Seminary, in the city of New York, the sum of fifty thousand dollars, as a special fund to be used as an endowment of what are known as ‘cadetships,’—such use, however, being subject to the direction of the board of directors of such institution. I also give and bequeath unto Hamilton College, at Clinton, New York, one hundred thousand dollars; to the University of Rochester, at Rochester, New York, one hundred thousand doilars; to Cornell University, at Ithaca, New York, two hundred thousand dollars; to Lafayette College, at Easton, Pennsylvania, fifty thousand dollars; to Lincoln University, at Lower Oxford, Pennsylvania, one hundred thousand dollars; to the University of Virginia, at Charlottesville. Virginia, one hundred thousand dollars; to Hampton University, at Hampton, Virginia, one hundred thousand dollars; to Maryville College, Maryville, Tennessee, one hundred thousand dollars; to Marietta College, at Marietta, Ohio, fifty thousand dollars; to Adelbert College, at Cleveland, Ohio, fifty thousand dollars; to Wabash College, at Crawfordsville, Indiana, fifty thousand dollars; to Park College, at Parksville, Missouri, fifty thousand dollars. In case the condition and circumstances of any of the institutions named in this paragraph of my will shall be so changed that, in the judgment of my executors, it is not expedient to pay over all or any of said moneys to such institution, I authorize and empower my executors, in the exercise of their discretion, to withhold or reduce the amounts herein directed to be given. If my estate shall not be sufficient to pay in full all the legacies and bequests in this my will contained, the legacies and bequests provided for prior to this paragraph of my will shall be first paid in full, and the bequests contained in this paragraph shall be paid pro rata.

“Tenth. All the rest, residue, and remainder of my estate, real and personal, of which I shall die possessed, I give, devise, and bequeath unto my executors, to have and to hold the same, in trust, nevertheless, to sell and to convert into cash, and to divide the same equally among the several corporations mentioned in the ninth paragraph of my will, share and share alike.”

By the eleventh clause, Justus L. Bulkley and Thomas G. Ritch were nominated as executors of the will, and as trustees of the estate, with power to sell and convey all of the real estate not specifically devised.

*579Upon the execution of said will the testator delivered it and the following certificate to Thomas G. Ritch, for safe-keeping:

“New York, Oct. 6, 1884.

“This certifies that I have executed my will of this date, having been advised by my counsel of the provisions and restrictions of the law of this state relative to benevolent corporations. I trust my heirs will permit the provisions of this my will to be carried into effect. D. B. Fayerweatber.”

December 13,1884, the testator executed a codicil by which he confirmed his will, except as therein modified. He revoked the tenth clause, and provided by the third clause in the codicil as follows:

“III. All the rest and residue of my estate, of whatsoever character and. wheresoever situated the same may be, of which I shall die possessed, and remaining after the provisions of the first nine paragraphs of my will have been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley and Thomas G. Ritch, named in the eleventh paragraph of my said will, to them and their heirs forever.”

Upon the execution of said codicil the testator delivered it and the following memorandum to Thomas G. Ritch, for safe-keeping:

“New York, Dec. 11th, 1884.

“Private Memorandum.

“I have made Messrs. Bulkley and Ritch my residuary legatees, in the confidence that thereby my intentions, as expressed in my will, shall be carried into effect, and without litigations on the part of any person or persons interested. In case of my death, I trust they will take such steps, by will or otherwise, as will protect my estate against the contingency of the death of either before my estate is settled and distributed. D. B. Fayerweatber.”

January 7, 1888, the testator executed a second codicil, by which he gave three legacies, aggregating $15,000, and nominated Henry B. Vaughan as executor of his will an,d trustee of his estate, in addition to Justus L. Bulkley and Thomas G. Ritch, and conferred the same powers on the three as were conferred by the will on Bulkley and Ritch.

March 19,1889, the testator executed a third codicil, by which he ratified his will and codicils, except as therein modified: He directed that $5,000 be expended in the purchase of a lot in Woodlawn Cemetery, and in the erection of a suitable monument. He increased an annuity to Anna Amelia Joyce from $1,000 to $4,000. He increased legacies to Charles M. Baker and Henry M. Baker from $2,500 each to $5,000 each, and legacies to Mary W. Achter and Emma S. Fayerweatber (now Drury) from $10,000 each to $20,000 each, and also bequeathed to nine individuals legacies aggregating $11,600. Upon the execution of this codicil the testator delivered it and the following memorandum to Thomas G. Ritch for safe-keeping:

“Private Memorandum.

“Having made inquiries with regard to Hampton and Lincoln Universities, it is my judgment that the bequests to them should be withheld. I think the bequest to Cornell University should not exceed $100,000. If the Northwestern University at Evanston, Illinois, is in a prosperous condition, I would recom-mend that $100,000 be given to it. If the following persons are in my employ at the time of my death, I suggest that they receive the following sums: Rogers and Blake, $500 each; Gould, Campbell, and Stone, $300 each; and Carpenter, $250; also James, who now opens and closes the store, $100; John Dixon, $200. I also wish that $1,000 be given Miss Joyce immediately after my decease, by addition to the provision made for her in my will.

“Mch. 22, 1889. D. S. Fayerweatber."

On the 13th of November, 1890, Mr. Ritch, upon the testator’s order, delivered his will, and the first, second, and third codicils, to Henry B. Vaughan, who on the same day delivered them to the testator. On the next day the following letter was delivered to Mr. Ritch:

*580“11 East Fifty-Seventh Street, N. Y. City, “November 13, 1890.

“Mr. Thomas G. Ritch—Dear Sir: I have examined my original will, and the first, second, and third codicils thereto, handed by you to Mr. Vaughan at my

request. By the tenth article oí my will, I left my residuary estate to my

executors, in trust, to be equally divided among certain corporations and institutions. By the first codicil, it seems that I revoked this tenth article of my will, and then made the following disposition of my residuary estate: ‘III. All the rest and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed, and remaining-after the provisions of the first nine paragraphs of my will have been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley and Thomas G. Ritch, named in the eleventh paragraph of my said will, to them and their heirs forever.’ Please advise me at once, in writing, what is the legal effect of this clause, and to whom and how would my

residuary estate go in case of my death, supposing this first codicil to remain in force.

“Yours, truly, D. B. Fayerweather.’*'

To this letter Mr. Ritch replied as follows:

“18 Wall Street, New York, November 14th, 1890.

“D. B. Fayerweather, Esq.—Dear Sir: The intention of the change in

question was to enable Messrs. Bulkley and myself to cany out the intentions of the will as modified by the various private memoranda in my possession. Neither Mr. Bulkley nor myself would have any moral right to treat any portion of your estate otherwise than as we know would conform to your wishes. I suggest that I call on you with these, and, if still approved by you, that they be left in a sealed package with Bliss Joyce, or any one named by you. The legal effect of the clause in question is to vest the title to the residuary estate in Messrs. Bulkley and myself, but, as I have said, neither Mr. Bulkley nor I would wish to derive any personal benefit under this -codicil.

“Yours, truly, Thos. G. Ritch.”

November 15, 1890, the testator executed a fourth codicil, by which he ratified and confirmed his said will and codicils, and especially confirmed the revocation of the tenth clause in his will, and changed the third clause of the first codicil of December 13, 1884, so as to read as follows:

“Third. I hereby amend and change the third paragraph of the codicil dated and made December thirteen, 1884, so as to read as follows: All the

rest and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed, and remaining after all the specific legacies in my said will and the several codicils thereto have been paid, and all the provisions of said will and codicils have been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley, Thomas G. Ritch, and Henry B. Vaughan, to them and their heirs forever.”

November 15, 1890, the testator died, leaving said last will and testament and four codicils unrevoked. The testator left surviving Lucy Fayer-weather, his widow, and two nieces, Mary W. Achter and Emma S. Drury, his heirs and next of kin. The testator’s estate amounted at his death to upwards of $6,000,000, and, after providing for all the annuities and the specific devises and bequests, the residuary estate amounted to upwards of $3,000,000. December 5, 1890, the will and codicils were filed for probate, and thereupon the widow and next of kin filed various objections, and a contest ensued;, but before its conclusion a settlement was agreed upon, and thereupon, the widow and next of kin executed the following instrument:

“In consideration of the instrument of even date herewith, executed byJustus L. Bulkley, Thomas G. Ritch, and Henry B. Vaughan, residuary devisees and legatees under the will,—meaning thereby the original will and the subsequent codicils of Daniel B. Fayerweather, late of the city of New York, deceased,—and of its delivery to Henry Stoddard and Stephen P. Nash, *581we, the undersigned, being the widow and ail of the next of kin of the said Daniel B. Fayerweather, do hereby severally agree, for ourselves, our and each of our heirs, executors, and administrators, as follows: (1) All objections to the probate of the will and four codicils of the late Daniel B. Fayerweather, offered for probate to the surrogate of the county of New York, are hereby withdrawn, and we consent to the probate of the same. <2) No suit shall hereafter be brought for the construction of the said will and codicils, or either of them, or to set aside the will and codicils, or either of them; and we further agree not to make any claim upon the said Justus L. Bulkley, Thomas G. Kitch, and Henry B. Vaughan, or either of them, or against their heirs or personal representatives, or either against them, the said Bulkley, Bitch, and Vaughan as executors, or as residuary legatees, other than for the amounts left to us by the will and codicils aforesaid, and the deed of gift executed by the said Bulkley, Bitch, and Vaughan on the 24th day of February, 1891, and the instrument dated on the 5th day of March, 1891. (3) Upon the payment to the undersigned, respectively, of the several amounts mentioned in said deed of gift and said instrument, we will severally execute a general release of all claims, except those arising under the will and codicils, both to the executors and to the donees mentioned in the deed of gift dated on the 24th day of February, 1891, and to the said Bulkley, Bitch, and Vaughan, individually. In witness whereof, we have hereunto set our hands and seals this 5th day of March, 1891. Executed in triplicate.”

The following is a copy of the instrument referred to in the foregoing contract:

“Whereas, we, the undersigned, Justus L. Bulkley, Thomas G. Bitch, and Henry B. Vaughan, residuary devisees and legatees under the will, meaning thereby the original will and the subsequent codicils of Daniel B. Fayer-weather, late of the city of New York, deceased, did, under our hands and' seals, on the 24th day of February, 1891, execute a deed of gift disposing of the residuary estate left to us by the said will, and in and by said deed reserved the power to make and retain the right to assent to any enlargement of the $15,000 given by the will to Mrs. Fayerweather, which she might desire, and also reserved the power to make and retain the right to assent to any enlargement of the provision made by the will for Mrs. Mary W. Aehter and Mrs. Emma S. Drury, in case we should be satisfied that such enlargement would not be against the wishes of Mr. Fayerweather; and whereas, a desire has been expressed to us by Mrs. Fayerweather for the enlargement hereinafter made of the amount left to her by the will, as aforesaid; and whereas, we have become satisfied that it would be the wish of Mr. Fayerweather to make the enlargement hereinafter provided of the provision by the said will for Mrs. Aehter and Mrs. Drury, aforesaid: Now, know all men by these presents, that under the power, authority, and rights reserved and retained by the deed of gift aforesaid: First. We hereby give (1) to the wife of the said Daniel B. Fayerweather, deceased, the capital sum of two hundred and twenty-five thousand dollars, bearing interest from April 4, 1891, upon any part thereof then unpaid, to be at her absolute disposal, and also to increase her annuity of $15,000 a year, so long as she shall live, to the sum of $25,000, for the period of her life, and we also agree to execute to her a deed of the lot in Woodlawn Cemetery intended for the remains of Mr. Fayerweather. (2) To Mrs. Mary W. Aehter the sum of $42,500, and Mrs. Emma S. Drury the sum of $42,500, bearing interest from April 4, 1891, upon any part thereof then unpaid. Second. And inasmuch as the reservation and retaining of the powers and rights to make the foregoing gifts were in the said deed of gift executed on the 24th day of February, 1891, hereinbefore mentioned, made the first and second paragraphs thereof, we hereby declare that the payments hereinbefore provided for shall have precedence over the gifts mentioned in the third, fourth, fifth, sixth, seventh, eighth, and ninth paragraphs of said deed of gifts. Third. The foregoing gifts are made subject to the provisions of the tenth paragraph of the deed of gifts executed on the 24th day of February, 1891, hereinbefore mentioned. In witness whereof, we have hereunto set our *582hand and seals, and delivered this instrument to Henry Stoddard and Stephen P. Nash, mentioned in the deed of gift aforesaid, this 5th day of March, 1891. Executed in triplicate. Justus L. Bulkley. [Seal.]

“Thomas G. Ritch. [Seal.] “H. B. Vaughan. [Seal.]'

“We accept the foregoing instrument under the provisions of the first and second paragraphs of the deed of gift therein mentioned, heretofore accepted by us.

“Dated New York, March 5, 1891. Henry Stoddard.

“S. P. Nash.”

Stephen P. Nash and Henry Stoddard are the persons named in the deed of gift executed by the residuary legatees and devisees February 24, 1891, who are to hold that instrument as trustees for the donees therein.

Prior to the date bf these instruments, and on the 25th of February, 1891, the will was duly admitted to probate, and after the date of these instruments, and on the 20th of March, 1891, the four codicils were admitted to probate; and on the following day letters testamentary were duly issued on said last will, testament, and codicils to Thomas G. Ritch, Justus L. Bulkley, and Henry B. Vaughan, as executors, who immediately qualified and entered upon the discharge of their duties. Subsequently, and during the year 1891, the 20 institutions mentioned in the ninth clause, except the University of Rochester, duly executed the following instrument:

“Whereas, a contest has been proceeding in the court of the surrogate of the county of New York against the probate of the.last will and testament and four codicils thereto propounded by the executors of Daniel B. Fayerweather, deceased, and certain other proceedings have been threatened concerning the construction and validity of the will; and whereas, the undersigned are legatees named in said will, and it is to their interest to have the pending controversy settled, and the threatened controversy abandoned; and whereas, a settlement of all the controversies has been agreed to, whereby the widow and next of kin have agreed to accept the sum of three hundred and ten thousand dollars, and, in consideration thereof, have consented to the probate of the will and codicils as propounded, and agreed to release the estate of said Fayerweather from, all claims, excepting those to which the said widow and next of kin are respectively entitled by the provisions of the will and codicils aforesaid: Now, in consideration of the foregoing, and to enable the provisions of the said settlement to be carried out, it is agreed by the undersigned that the sum of three, hundred and ten thousand dollars be paid by the executors of the last will and testament of Daniel B. Fayerweather, deceased, prior to and in preference to the payments to the undersigned, respectively, of the amounts of the legacies in the will contained, and we each, for ourselves, agree that our respective-legacies shall be postponed to the payment of the amount above mentioned. In witness whereof, the undersigned has caused its corporate seal to he affixed to these presents, and the same to be signed by its .president and attested by its secretary this 22d day of March, A. D. 1891.”

The University of Rochester, through its attorney, consented to the terms of settlement. Afterwards the sums which the widow and next of kin severally agreed to accept were paid to them, and they executed and delivered a release,, of which the following is a copy:

“To All to Whom These Presents shall Come or may Concern, Greeting: Know ye, that I, Mary W. Achter, of Muscatine, Iowa, by Morris B. Beardsley, attorney in fact, duly authorized thereto, for and in consideration of the sum of forty-two thousand five hundred dollars, lawful money of the United States, to me in hand paid by Justus L. Bulkley, Thomas G. Ritch, and Henry B. Vaughan, as executors and trustees under the last will and testament of Daniel B. Fayerweather, deceased, and individually, and as the representatives of the persons or corporations hereinafter named, forming a class known as donees under the deed of gift executed by the said Bulkley, Ritch, and Vaughan on February 24th, 1891, which sum is in compromise and full settlement of any and all contest on my part of the will of said Daniel B. Fayerweather,. deceased, or concerning his estate, have remised, released, and forever discharged, and by these presents do for myself and for my heirs, administrators, *583and executors, remise, release, and forever discharge, the said Justus L. Bulkley, Thomas G. Bitch, and Henry B. Vaughan, as executors and trustees aforesaid, as individuals, and as representatives of the said donees, constituting a class, and also the said donees, to wit, the persons and corporations mentioned in a certain deed of gift duly delivered, made by Justus L. Bulkley, Thomas G. Bitch, and Henry B. Vaughan on the 24th day of February, one thousand eight hundred and ninety-one, which deed of gift was introduced in evidence in the probate proceedings of the last will and testament of Daniel B. Fayerweather, deceased, and marked ‘Exhibit No. 7, Contestants,’ and which said deed of gift is hereby made a part of this release, in order that the persons constituting said class of donees, and to whom this release runs, may be more fully known, and also the legal successors, assigns, heirs, executors, and administrators of all the aforesaid persons and corporations, of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, claims, and demands whatsoever, in law or in equity, which, against the said persons or corporations, or any of them, I ever had or now have, or which I or my heirs, executors, or administrators hereinafter shall, can, or may have, for, upon, or by reason of any matter, cause, or thing whatsoever, except my claim for the legacy given me by the will and codicils thereto of said Daniel B. Fayerweather, deceased. In witness whereof, I have hereunto set my hand and seal this 12th day of June, in the year one thousand eight hundred and ninety-one. Mary W. Achter [Seal],

“By Morris B. Beardsley, Her Attorney.

“Sealed and delivered in the presence of Edward Marshall Grout.”

The releases executed by Lucy Fayerweather and Emma S. Drury were in substance the same as the foregoing instrument.

On February 24, 1891, Thomas G. Bitch, Justus L. Bulkley, and Henry B. Vaughan executed and delivered to Stephen P. Nash and Henry Stoddard an instrument known in this litigation as the “Deed of Gift,” of which the following is a copy:

“Know All Men by These Presents, that we, Justus L. Bulkley, Thomas G. Bitch, and Henry B. Vaughan, residuary devisees and legatees under the will, meaning thereby the original will and the subsequent codicils of Daniel B. Fayerweather, late of the city of New York, deceased, prompted by our determination that we will not retain for our own use any part of the residuary estate left to us by his will, and by the desire to make such disposition of liis said residuary estate as in our judgment will best honor his memory, do dispose of so much of the same as shall remain after the payment of all lawful fees, expenses, and charges, as follows: Such of the same as shall remain after the payment of all lawful fees, expenses, and charges, as follows:

“First. We reserve the power to make, and we retain the right to assent to, any enlargement of the $15,000 a year by the will left to Mrs. Fayerweather which she may desire.

“Second. We reserve the power to make, and we retain the right to assent to, any enlargement of the provision made by the will for Mrs. Mary W. Achter and Mrs. Emma S. Drury, in case we shall be satisfied that such enlargement would not be against the wishes of Mr. Fayerweather.

“Third. We give to Mrs. Lucy J. Beardsley, wife of Morris B. Beardsley, $100,000. We do this because of Mr. Fayerweather’s letter of November 15, 1890, to Mr. Vaughan and Mr. F. B. Myrick. If accepted, this gift is in discharge of any claim under that letter.

“Fourth. We give to Miss Anna Amelia Joyce $1,000; to Miss Anna Amelia Joyce, the annuity of $4,000 provided by the will for the period of her life, instead of for the period mentioned in the will; to E. M. Upham, an annuity of $1,000 for the period of his life: To provide for such annuities, we may either retain an amount for investment, the income of which will, in our judgment, provide for the annuities, or we shall be at liberty by the use of a sum in gross to purchase an annuity from a responsible life insurance company, to be selected by us.

“Fifth. We give to George H. Blake $1,000; E. Gould, $500; James Campbell, $500; H. J. Stone, $500; John E. Carpenter. $250; John Dixon, $500; John O. Bayler, $200; Kate Quinn, $100, being the legacy to her of that amount *584left by the will, and which has elapsed; Albertina 0. Hertzman, widow of E. H. Hertzman, $500, being the same amount as was left to him by the will; Frank H. Spellman, $2,000 in addition to the $3,000 given by the will; Clara Miller, wife of George L. Miller, $3,000 in addition to the $2,000 given by the will; Patrick Keefe, $200 in addition to the $300 given by the will; Thomas Donahue, $200 in addition to the $300 given by the will; Owen Keefe, $200 in addition to the $100 given by the will; the Northwestern University, at Evanston, III., $100,000; Joseph Rogers, $500.

“Sixth. The said annuities shall begin from Mr. Fayerweather’s death. All the other amounts heretofore mentioned shall draw interest from the ex-, piration of one year from Mr. Fayerweather’s death. In the event that the said residuary estate shall be insufficient to pay the above amounts in full, they shall abate ratably.

“Seventh. After payment in full as aforesaid, we give to Mount Sinai Hospital $15,000 in addition to the amount given by the will; the Presbyterian Hospital, in the city of New York, $25,000 in addition to the amount given by the will; the Woman’s Hospital, in the state of New York, $200,000 in addition to the amount given by the will; the Manhattan Eye and Ear Hospital, $25,000 in addition to the amount given by the will; the New York Eye and Ear Infirmary, $25,000; the Manhattan Dispensary, at Tenth avenue and One Hundred and Thirty-First street, New York City, $25,000; the Montefiore Home for Chronic Invalids, $25,000; the Methodist Hospital of Brooklyn, $25,000; St. Luke’s Hospital, in the city of New York, $25,000 in addition to the amount given by the will; the New York Cancer Hospital, $25,000; the Society of St. Vincent de Paul, in the city of New York, $50,000, —all without interest. In the event that the said residue of the residuary estate shall be insufficient to pay the above amounts in full, they shall abate ratably. Each of the gifts mentioned in this article is to be used for the endowment of beds, or some other use which in the judgment of the officers of the institution is best fitted both to be of the greatest service, and at the same time best to perpetuate Mr. Fayerweather’s memory.

“Eighth. After payment in full as above, we give to Union College, at Schenectady, $100,000; Haverford College, at Haverford College Post Office, Montgomery county, Penn., $50,000; the University of the City of New York, $100,000; the University of Pennsylvania, $50,000; Brown University, at Providence, R. L, $50,000; Harvard College, at Cambridge, Mass., $100,000; Wesleyan University, at Middletown, Conn., $50,000 in addition to the amount given by the will; Princeton College, $100,000; Rutgers College, at New Brunswick, N. J., $100,000; Wells College, Aurora, $50,000; Elmira Female College, $50,000; Vassar College, at Poughkeepsie, $50,000; Barnard School for Women, in the city of New York, $100,000; the Cooper Union for the Advancement of Science and Art, as a permanent fund, the income to be used as far as necessary for the support of the Women’s Art School, $200,000; Shattuck School, at Faribault, Minn., $25,000; Lafayette College, at Easton, Penn., $50,000 in addition to the amount given by the will; Mary-ville College, $50,000 in addition to the amount given by the will; Trinity College, at Hartford, Conn., $50,000; Wabash College, $50,000 in addition to the amount given by the will; Marietta College, $50,000 in addition to the amount given by the will,—all without interest. The amount in ea h ■case to be used as a Fayerweather fund, in some distinctive manner, either ■for the erection of' buildings, the establishment of scholarships, or other use which, in the judgment of the authorities, will be of the greatest practical benefit; the mode of use to be subject to our approval. A separate ■account of the fund to be kept by each institution, and in the reports of said •institution the account to be separately stated. To Yale College, at New Haven, Conn., $150,000, without interest, in addition to the amount given by the will, to be used in the erection of a Fayerweather building, the purpose of the building and its plans to be subject to our approval; but if, in the opinion of the authorities of the college, such building be impracticable,' the fund is to be used for the general purposes of the college. In the event that the residue of the residuary estate shall be insufficient to pay the above ■amounts in full, they shall abate ratably.

■“Ninth. All the rest, residue, and remainder of such residuary estate, after *585payment in full as above, we give in equal parts as follows: To Yale College, at New Haven, Conn., one part; to Columbia College, in the city of New York, one part; to Harvard College, at Cambridge, Mass., one part; to Princeton College, one part; to the Woman's Hospital, in the state of New York, five parts; to the Presbyterian Hospital, in the city of New York, one part. The gifts in this instrument made to the Woman’s Hospital being for the purpose of erecting or aiding in the erection of a building to be •called the ‘Fayerweather Pavilion of the Woman’s Hospital,’ and until used for that purpose to be kept as an invested fund, the income to be used in providing the benefits of the hospital to women who, in whole or in part, are unable themselves to meet the expense.

“Tenth. The foregoing gifts are subject to our powers as executors; to our rights, as executors, devisees, and legatees, to turn the general estate into money; to the payment out of the general estate of the collateral inheritance tax, or any other tax provided by law; and are subject further to our right, in the event of any question of identification or designation of either of the foregoing donees, to determine the same.

“We execute this instrument recognizing that there is pending a contest in proceedings for the probate of Mr. Fayerweather’s will, and recognizing further that, if such contest shall not prevail, a question may be made about our legal rights as devisees and legatees. We assume no responsibility for the result of such contest, or of any such question, or for the acts or omissions of each other, or for the amount of or title to any of said residuary estate. Our object is, each for himself, to give away whatever may come to us as residuary devisees and legatees under Mr. Fayerweather’s will. This instrument is to have only that effect. To make the same as effectual as we can, we deliver this instrument to Stephen P. Nash, Esq., •of the city of New York, and Hon. Henry Stoddard, of New Haven, Conn., to hold for the said donees.

“In witness whereof, we have hereunto set our hands and seals, and we, the said Henry Stoddard and Stephen P. Nash, in evidence of our acceptance of delivery of said instrument, have subscribed our names the 24th day of February, 1891. Justus L. Bulkley. [Seal.]

“Thomas. G. Ritch. [Seal.] “H. B. Vaughan. [Seal.]

“In the presence of “John E. Parsons,

“Haley Fiske.”

July 16, 1892, Lucy Fayerweather died, leaving a last will and testament, which was duly admitted to probate September 9, 1892; and letters testamentary thereon were then duly issued to John B. Reynolds and Morris B. Beardsley, the executors nominated therein, who immediately entered upon the discharge of their duties.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, J.J.

William Blaikie, for appellants executors of widow, and for next of kin of Daniel B. Fayerweather.

John E. Parsons, for appellants Bulkley and Vaughan, two of the executors of Daniel B. Fayerweather.

Stewart L. Woodford, for appellants Thomas Gr. Ritch, one of the executors of Daniel B. Fayerweather, and individually, Cornell University, Marietta College, and Elmira Female College.

William Gr. Choate, for appellants donees under.the deed of gift of Justus L. Bulkley, Thomas G-. Ritch, and Henry B. Vaughan, residuary devisees and legatees.

Charles M. Earle, for appellant Manhattan Dispensary.

Henry Stoddard and Haley Fiske, for appellants president and fellows of Yale College.

*586James L. Bishop,'Horace Russell, Elihu Root, Martin W. Cook, and William B. Putney, for respondents plaintiffs.

Alfred W. Kiddle, for respondent Northwestern University.

William B. Hornblower, Howard A. Taylor, and Austin Abbott, for respondents Lincoln University and the Hampton Normal & Agricultural Institute.

1

31 N. Y. Supp. 885.

FOLLETT, J.

The testator, by his will and codicils, disposed of his estate as follows: By the first clause, he revoked all former wills. By the second, he directed the payment of his debts, funeral expenses, and the expenses of settling the estate. By the third, fourth, and fifth clauses, he devised and bequeathed to Lucy Fayerweather, his wife, $10,000; his residence, No. 11 East Fifty-Seventh street, with all the household furniture and effects therein, together with the horses and carriages and personal effects-in the stable connected with the house; and a net annual income of $15,000 during her life, payable quarterly,—-which provisions were in lieu of dower. By the seventh clause of the will and the fifth clause of the third codicil, he bequeathed $100,000 to Lucy J. Beardsley, $20,000 to Mary W. Achter, and $20,000 to Emma S. Drury, three nieces, who were his only heirs and next of kin. By the sixth clause of the will and the third clause of the third codicil, he bequeathed to Anna Amelia Joyce (now Reynolds) a life annuity of $4,000, provided she remained unmarried. By the seventh clause of his will and by the second and third codicils thereto, he bequeathed $32,600 to.various employés and servants. By the eighth clause of his will, he gave to five hospitals in the city of New York $95,000, as appears by this clause quoted in the statement of facts. By the ninth clause of his will, he bequeathed $2,100,000 to 20 educational corporations.. By the third clause of the fourth and last codicil, the remainder of his estate was disposed of as follows:

> “All the rest and residue of my estate, of whatsoever character and wheresoever situated the same may be, of which I shall die possessed, and remaining after all the specific legacies in my said will and the several codicils thereto have been paid, and all the provisions of said will and codicils have-been fully complied with and carried into effect, I give, devise, and bequeath to Justus L. Bulkley, Thomas G. Ititch, and Henry B. Vaughan, to them- and their heirs forever.”

The testator’s estate amounted at his death to upwards of $6,000,000, and, after providing for all of the annuities and the specific devises and bequests, the residuary estate passing under the clause last quoted amounted to upwards of $3,000,000.

The special term found the following facts:

That the defendants Thomas G-. Bitch and Henry B. Vaughan, for themselves and on the part of Justus L. Bulkley, promised Daniel B. Fayerweather, now deceased, and induced him to believe, that if he-would make them and the defendant Justus L. Bulkley residuary legatees of his estate, as provided in the codicils of his will dated December 13, 1884, and November 15, 1890, the said residuary legatees would sell and convert said residuary estate into cash. *587and divide the same equally, share and share alike, among the 20 corporations mentioned in the ninth paragraph of the said Daniel B. Fayerweather’s will, dated October 6, 1884, including the plaintiffs, after paying $100,000 to the Northwestern University, and that the said Daniel B. Fayerweather made the said Bitch, Bulkley, and Vaughan his residuary legatees, in and by the said codicils, in reliance upon the said promise and inducements, and died leaving the said Bitch, Bulkley, and Vaughan his residuary legatees in the belief so induced by them that they would sell, convert, and distribute the residuary estate as aforesaid, and that the said Bitch, Bulkley, and Vaughan have attempted to dispose of the said residuary estate in violation and disregard of the said promises. These facts are amply supported by the evidence. The testimony of Bitch and Vaughan and the correspondence conclusively show that they definitely promised the testator to dispose of the residuary estate bequeathed to them in accordance with the provisions of the tenth clause of the will. No other conclusion is possible, and we are of the opinion that the evidence warrants the conclusion that there was an understanding between Justus L. Bulkley and the testator that the estate should be so disposed of. Bulkley had for many years been an intimate friend of the testator, and was nominated as one of the executors in the will of 1880, and he joined with the other residuary legatees in divesting themselves of all personal interest under the residuary clause of the will, which seems to us to show that there was an understanding between the testator and all of the residuary legatees that the residuum should be disposed of in accordance with the testator’s wish expressed in his will and the memorandums. This brings the case within the rule laid down in O’Hara v. Dudley, 95 N. Y. 403. The residuary legatees acquired no personal interest in the residuum, but" took it as trustees.

The executors of the testator’s widow and two of his heirs at law and next of kin seek to have the residuary clause declared invalid under chapter 360 of the Laws of 1860, which provides:

> “Section 1. No person, having a husband, wife, child or parent, shall, by his- or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half and no more).”

The difficulty with their contention is that the widow and heirs released all of their interest in the estate, for valuable considerations paid to them. This statute was designed for the protection of husbands, wives, next of kin, and heirs at law; but it does not in any wise prevent them from releasing to educational corporations the benefits which they might have secured by resisting wills in contravention of the statute. It is urged that these releases were procured by fraud and undue influence. There is no evidence in the record justifying this contention. The terms of settlement were agreed on during the" controversy in the surrogate’s court over the probate of the will and codicils; and the-*588widow and heirs were represented in that controversy and in the settlement by distinguished counsel, and acted under their advice. The residuary legatees not having any personal interest in the residuary estate, and the widow and heirs having released-, all their interest therein, there is no person who is entitled to raise the question that the residuary clause is void under the act of 1860. Ko person or corporation, except the state, in certain cases, can impeach the validity of the disposition of property by will, unless the contestant, if successful, will acquire some interest under the statutes of descent or of distribution, or as devisee or legatee, in the property attempted to be disposed of by tljie will; and if the person entitled to contest a will, or some one or more of its provisions, voluntarily and for a valuable consideration received after, the testator’s death, with full knowledge of the invalidity of the will, divests himself of all interest in the property disposed of by it, he cannot impeach its validity.

The judgment should be affirmed, with separate bills of costs in favor of the respondents, payable out of the estate.

PARKER, .J., concurs,

VAN BRUNT, P. J. (concurring).

The facts upon which the controversies in this case arise are not disputed, and, as I understand them, are briefly these: On the 6th of October, 1884, Payer-, weather made a will, by which, in the ninth clause thereof, he bequeathed certain sums of money to 20 educational institutions; .and then, by the tenth clause, he devised all the rest, residue, and remainder of his estate to his executors, in trust, to sell and convert into cash, and to divide the same equally among the ■several corporations mentioned in said ninth paragraph, share and share alike. Fayerweather was advised by his counsel that the provisions of his will contravened the restrictions of the law •of this state relative to benevolent corporations. Upon the execution of the will, he delivered it to one of the executors, with a certificate stating that he had been so advised, and expressing the trust that his “heirs” would permit the provisions of his will to be carried into effect. The statute which was contravened by the provisions of the will was that which prohibited a person having a husband, wife, child, or parent from devising or bequeathing to any benevolent, charitable, etc., society, in trust or otherwise, more than half of his or her estate after the payment of his or her debts. On the 13th of December, 1884, Fayerweather, having become suspicious as to the forbearance of his widow and next of kin in the assertion of the rights conferred upon them by the statute above mentioned, executed a codicil to his will, by. which he revoked the tenth clause, and bequeathed all the rest, residue, and remainder of his estate to the persons named in the eleventh paragraph of his will as his executors. Upon the execution of said codicil the testator delivered it, with a memorandum, to Mr. Ritch, one of his executors, in which he stated that he had made these executors his residuary legatees in the confidence *589that thereby his intentions as expressed in his will would be carried into effect, and without litigation on the part of any person or persons interested. On the 7th of January, 1888, the testator executed a second codicil, by which he gave certain additional legacies, named a third person as executor of his will and trustee of his estate, and conferred the same powers on the three executors as had been conferred by the will on the two. On the 19th of March, 1889, the testator executed a third codicil, by which he ratified his wijl and codicils, except as therein modified. He made some changes, and gave some additional legacies. Upon the execution of this codicil he delivered it, with a memorandum, to one of his executors for safe-keeping. The memorandum related to sums to be given to certain charitable institutions, and also some small gifts to divers persons. On the 13th of November, 1890, this executor, upon the testator’s order, delivered his will and the first, second, and third codicils to the executor whom the testator had last named, who delivered them to the testator. On the next day the testator sent a letter to one of his executors, calling his attention to the revocation of the tenth clause of the will by the first codicil, and the devise of all the rest, etc., of his estate to the executors named in the eleventh clause, and asked:

> ‘,‘PIease. advise me at once, in writing, what is the legal effect of this clause, and to whom and how would my residuary estate go in case of my death, supposing this first codicil to remain in force.”

• To this letter the executor Mr. Bitch replied:

> “The intention of the change in question was to enable Messrs. Bulkley and myself to carry out the intentions of the will as modified by the various private memoranda in my possession. Neither Mr. Bulkley nor myself would have any moral right to treat any portion of your estate otherwise than as we know would conform to your wishes. I suggest that I call on you with these, and, if still approved by you, that they be left in a sealed package with Miss Joyce, or any one named by you. The legal effect of the clause in question is to vest the title to the residuary estate in Messrs. Bulkley and myself; but, as I have said, neither Mr. Bulkley nor I would wish to derive any personal benefit under the codicil.”

On the 15th of November, 1890, the testator executed a fourth codicil, by which he ratified and confirmed his will and codicils, and especially confirmed the revocation of the tenth clause, and changed the third clause of the first codicil so as to devise the residue, etc., of his estate to his three executors, instead of two. On the same day the testator died, leaving said will and four codicils unrevoked. This will and codicils have been admitted to probate. By these instruments it is clear that the executors and devisees took the rest, residue, and remainder of the estate as trustees, the corporations named in the ninth clause of the will being the cestuis que trustent, which trust can be enforced by the cestuis que trustent, unless the rights of some parties secured to them by law will be thereby contravened. It is clear that these executors could not put this residuary estate into their own pockets, and apply it to their own uses, the testator having made this disposition of his estate upon their promise to apply it in the manner provided for by his will. The tenth clause of the will, *590although revoked by the codicils, still existed, for the purpose of defining the trust. The testator left him surviving a widow, who was the only person who could call into operation for her protection the statute which we have quoted. The widow, however, has released to the executors all claims to the estate, which release cannot be successfully attacked or set aside. There is consequently no person for whose benefit the statute can operate. No rights of heirs and next of kin have been infringed upon, because the trust does not contravene any statute for their benefit, and is not the subfect of attack by them. If it were, they have also executed a release of their interest in the estate, in the same manner as the widow. We have therefore the case of a trust established, which would be valid as against all the world, but for the statute in favor of the widow; and, the widow having released all her rights in the estate, how can she claim, the invalidity of a trust as to property in which she has no interest? The widow is not aggrieved, and under such circumstances the trust must be executed.