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Starr v. Selleck

Supreme Court of New York, Appellate Division

July 7, 1911

LOUIS M. STARR and HOWARD W. STARR, as Executors, etc., of THEODORE B. STARR, Deceased, Respondents,
HARRIET E. SELLECK, Appellant, Impleaded with LOUIS M. STARR and HOWARD W. STARR, Individually and as Executors, etc., of THEODORE G. WHITE, Deceased, and Others, Respondents.

Page 870

APPEAL by the defendant, Harriet E. Selleck, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of New York on the 2d day of February, 1911, upon the decision of the court rendered after a trial at the New York Special Term.


Omar Powell, for the appellant.

Eugene H. Hatch, for the respondents Starr.

William A. Alcock, for the respondent Gordon House.

Robert P. Beyer, for the respondent Attorney-General.

Page 871


On the 7th of July, 1901, Theodore G. White died, leaving a will by the 3d paragraph of which he gave all the real estate and stocks standing in his name, and his bank deposits, to trustees 'to be used toward the purpose of maintaining a club house or club rooms for the social resort of young men and boys upon the west side of the City of New York, Borough of Manhattan, or to the purposes of similar work, social or educational, for such young men or boys as individuals.' He was unmarried and his sole heirs at law and next of kin were his aunt, the appellant Selleck, and his cousin, Theodore B. Starr, who, with his two sons--who are respondents on this appeal--were appointed executors and Theodore B. Starr also became the sole trustee of the trust created by the 3d paragraph of the will. He was aware that the validity of the trust was open to question, and being desirous of carrying out the wishes of the testator, he executed an instrument renouncing all claim to the trust property, and the appellant Selleck executed a similar instrument, called a declaration, by which she further requested him to carry out the trust. This he did until his death, in May, 1907, devoting the income to the respondent Gordon House. His sons, the respondents, were his residuary legatees and executors, and they were preparing to have his accounts as trustee settled and a new trustee appointed, when they received a letter from the appellant declining to consent to the further execution of the trust, stating: 'I confess that I am not quite of the same mind that I was at first in regard to the disposition of the property.' They thereupon brought this action to have the accounts settled and the validity of the trust determined. The right to the accounting was not contested and the court found that the appellant was estopped from asserting the invalidity of the trust. An interlocutory judgment was entered accordingly, from which Mrs. Selleck appeals.

The only questions presented are whether the trust is valid and whether the appellant is in a position to dispute its validity. The trust certainly is not contrary to public policy so that if she is estopped from attacking it, it will be enforced by the courts. ( Amherst College v. Ritch, 151 N.Y.

Page 872

282; Steinway v. Steinway, 24 A.D. 104; affd., 163 N.Y. 183.)

It is claimed by the appellant that the trust is void (a) for want of defined or determinable objects and purposes; and (b) for want of ascertainable beneficiaries. So far as the latter claim is concerned, it is rendered untenable by chapter 701 of the Laws of 1893 (as amd. by Laws of 1901, chap. 291), which was in force at the time of the testator's death. This statute provides that no gift 'to religious, educational, charitable or benevolent uses' otherwise valid shall be deemed invalid by reason of the indefiniteness or uncertainty of the beneficiaries; that the Supreme Court shall have control over such gifts and it shall be the duty of the Attorney-General to represent the beneficiaries and to enforce such trusts by proper proceedings. The effect of this statute was discussed at length in Matter of Shattuck (193 N.Y. 446) upon which the appellant chiefly relies. There the gift was to the trustee to pay the income over 'to religious, educational or eleemosynary institutions as in his judgment shall seem advisable.' It was held that the statute was intended to apply only to public, charitable gifts and not to gifts for the benefit of private institutions or individuals, and since the court could not prevent the trustee from paying over the income to private schools organized for profit, if he chose so to do, the trust did not come within the protection of the statute and was void for uncertainty. CHASE, J., who delivered the opinion, said: 'The act of 1893 doubtless saves a trust from being invalid because the beneficiaries are indefinite and uncertain, but a trust may be so indefinite and uncertain in its purposes as distinguished from its beneficiaries as to be impracticable, if not impossible for the courts to administer.'

In the present case it may be conceded that the trust is void for uncertainty unless it is protected by the statute, and the question is whether the purposes of the trust are ascertainable and come within the terms of the statute. The facts developed upon the trial clearly indicate the purposes which the testator had in mind in creating the trust. He was, at the time of his death, ...

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