In the following instance, a testator’s paternal solicitude for the reform of a wayward son, and his disapproval of his mode of life, were emphatically expressed; and an unfortunate oversight of this inflexible rule hindered the restraint the parent thought to place on his son after his decease. The father, however, with the usual confidence of a parent, had not abandoned all hope as to his ultimate recovery, for he thought fit to make him one of his executors, and thus placed him in the rather novel position of being a censor of his own conduct.
In the seventh clause of his will, after certain clear devises and bequests to other persons, was this recital and provision, viz: “Whereas, my son P, to whom sundry bequests are made in the following will, has unfortunately contracted habits of inebriation, and in consequence of which, I fear he would squander or misuse the bequests to him made, I do, therefore, annul and make void this will as to him, unless he reforms and continues a sober, industrious, and moral man, for the space of two years after my decease, giving to my executors satisfactory evidence and assurance of a thorough reformation. And, therefore, it is my will, that the property so willed to him should be held in trust for him, not to exceed three years after my decease; and if within that time such reformation does not take place, I desire my said executors to divide his portion among such of my heirs as may seem to them most to need and deserve the same.”[227]
It was held that this provision of the will was void, both as a trust, and as a power in trust; and that the son took the bequest notwithstanding.
The court deemed it “an unusual and extraordinary provision”; and as the period of suspension was measured by time alone, and not by life, this of itself rendered the provision nugatory.
It has been decided that if a bequest be made to certain trustees, to hold during the life of two persons designated, or until the legislature incorporate a hospital during the lifetime of the said persons, it is good.[228] It was in this way the will of Mr. Roosevelt was drawn, through which the Roosevelt Hospital in New York was founded. He bequeathed the residue of his estate, after other bequests, to nine trustees, five of whom were presidents of certain charitable institutions, for the establishment of an hospital for the reception and relief of sick and diseased persons, and directed them to apply to the legislature for a charter to incorporate the same, and in case the legislature should refuse to grant this within two years next after his death, provided two lives named in his will should continue so long, then the trustees were to pay over the same to the United States for a similar purpose.
It was held that this provision did not violate the statute of perpetuities, but that the corporation could take only in case the charter was granted within the two lives named. There was no need to consider the validity of the devise to the United States. The charter was granted in February, 1864, and now the hospital stands conspicuous among the charities of New York city.
An oversight in the observance of this rule against perpetuities caused the failure of a grand and meritorious scheme conceived by the late Mr. Rose of New York. He died in 1860, and left a large amount of property—estimated at two millions of dollars—to found an institution called the “Rose Beneficent Association,”[229] whose object it was to educate and train waifs picked up on the streets, and make them useful citizens. He gave the bequests upon the contingency of raising $300,000 from other sources within five years. If that sum was not so raised, the estate was given to other charitable beneficiaries. The utmost limit of the suspension was five years, but it was not circumscribed by lives as the Statute of Perpetuities requires, and it was adjudged to be void. It should be stated as a warning that this will of Mr. Rose was drawn by himself.
The case occupied a long time in litigation, and the subject of charitable bequests was most exhaustively examined.[230]