Cornell University v. Fiske

This is a proceeding which originated in the surrogate's court of the county of Tompkins, in the state of New York. John McGraw, a resident of Ithaca, in that county, died May 4, 1877, leaving, as his only child and heir, Jennie McGraw, who on the 14th of July, 1880, at Berlin, Germany, intermarried with Willard Fiske, and died September 30, 1881, at Ithaca, her place of residence, after reaching the age of 41, without issue, leaving her husband surviving her. John McGraw left a last will and testament, which was duly admitted to probate by the surrogate of Tompkins county, and of which his daughter, Jennie McGraw, and Douglass Boardman, and the survivor of them, were made sole executors. His daughter, Jennie McGraw Fiske, also left a last will and testament, by which she made Douglass Boardman her sole executor, and which was duly proved and admitted to probate by the surrogate. Excepting about from $130,000 to $150,000 in value, which came to her by devise and bequest from her grandfather John Southworth, the title to the estate and property which formed the subject of disposition by her will came through the will of her father, John McGraw. On the 8th of January, 1883, after due citation of all parties interested, there was a judicial settlement of the accounts of Douglass Boardman as executor of Mrs. Fiske's estate, and a decree entered by the surrogate confirming all payments theretofore made by the executor, and directing the balance of said estate to be paid to Cornell University, as her residuary legatee, and also a decree settling the accounts of said Boardman as surviving executor of John McGraw, and transferring the balance of his estate to the estate of Mrs. Fiske. On the 6th of September, 1883, on the petition of Willard Fiske as her surviving husband, the decree settling her estate was opened by the surrogate, and he was permitted to be heard with like effect as if he had appeared on the 8th of January, 1883, such opening being without prejudice to payments made or acts done by the executor in pursuance of her will, and of said decree, but leaving the validity and effect of those acts, and the rights of the respective parties therein, for future adjudication; and on the 24th of October, 1883, a similar order was made, opening the said decree of settlement in both estates, on the application of certain persons as the heirs and next of kin of Mrs. Fiske, and also on the application of certain legatees and devisees under John McGraw's will. Proofs were taken. The case was heard by the surrogate in November, 1885; and on the 25th of May, 1886, he made and filed his findings, and entered his decision and decree affirming in all things his original decrees as to the two estates. On the 23d of June, 1886, the several contestants made and served their exceptions to his findings, and duly appealed to the supreme court from his decision and decree. They also requested him to make certain findings upon questions of fact, and rulings upon questions of law, some of which requests he granted and some of which he refused; and exceptions were taken of his refusals.

The controversy in the case, so far as it presents itself for our consideration, is between Cornell University, on the one side, and the husband, heirs at law, and next of kin of Mrs. Fiske, on the other side. It was provided by section 5 of the charter of Cornell University that it might 'hold real and personal property to an amount not exceeding three millions of dollars in the aggregate;' and the material question in dispute is as to whether, at the time of the death of Mrs. Fiske, on the 30th of September, 1881, the university held real and personal property to the amount of $3,000,000 in the aggregate. Of the findings of fact made by the surrogate, the following are the only ones which seem material to the case, as it is before us:

'(62) The Cornell University has had at all times since its incorporation, and now has, legal and corporate capacity to take, by gift, grant, or devise, real property in the states of Michigan, Wisconsin, Iowa, Minnesota, Ohio, Indiana, Kansas, and New Jersey; and such is the law in those states, respectively, concerning foreign corporations like the university. (63) The Cornell University has legal capacity to take, and did take, by devise, all the real property, the title to which was in Jennie McGraw Fiske at the time f her death, under her last will and testament, situate in the states of Michigan, Wisconsin, Iowa, Ohio, Indiana, and New Jersey.' '(66) The absolute title to the whole of the land situated in New Jersey passed, under the will of Mrs. Fiske, to Cornell University.' '(75) At the date of Mrs. Fiske's death, September 30, 1881, Cornell University had held, and owned real and personal property which it derived from the founder and other friends of the university, or which was purchased with funds furnished by them, or with the income of such funds, and which property, September 30, 1881, was of the value of five hundred and ninety-eight thousand five hundred and eighty-eight and 65-100 dollars ($598,588.65) in the aggregate.' Then follows a description, by items, of the property thus held and owned by the university, with the separate value of each item, as of September 30, 1881. The last item is as follows: 'The farm and grounds on which the university buildings are located, consisting of about 260 acres, including the buildings and reservoir, $69,683.33.'

'(93) The following is a recapitulation of the findings of fact relating to the property of Cornell University, viz.: September 30, 1881, Cornell University had, held, and owned the property derived from individuals, and described in the foregoing seventy-fifth finding of fact, to the amount and value of not exceeding $598,588.65 in the aggregate. At the same time Cornell University had, held, and owned the property derived from the nation and state, and described in the foregoing findings, to the amount and value of not exceeding $2,088,012.78 in the aggregate, as follows: Western land contracts, $439,834.22; Western lands, $1,648,178.56; total, $2,088,012.78. But, under and in pursuance of the Cornell contract of August 4, 1866, the whole net proceeds of the avails of said last-mentioned property, being the proceeds of the sale of said college land-scrip, or lands located therewith, was at that time due or payable by Cornell University to the state of New York; and the total amount and value of the property had, held, and owned by Cornell University, September 30, 1881, over and above its obligations to the state of New York, as defined by said contract, was $598,588.65. At that time Cornell University had, held, and owned the right to 'the income, revenue, and avails which should be received from the investment of the proceeds of the sale of the lands, or the scrip therefor, or any part thereof, granted to the state of New York by the act of congress entitled 'An act donating public lands to the several states and territories which may provide colleges for the benefit of agriculture and the mechanic arts,' approved July 2, 1862,' which right to said 'income, revenue, and avails' was granted, and, for a valuable consideration paid by Ezra Cornell, was contracted, to Cornell University, by section 6 of its charter. The right to the income, etc., of the proceeds of said sales, September 30, 1881, extended to the college land-scrip fund and Cornell endowment fund, as they then existed, and to all the proceeds of said sales which would or might come to said funds by virtue of the sale to Ezra Cornell of said college land-scrip under his contract of August 4, 1866. At that time, also, Cornell University had possession of the Cornell endowment fund, and the state of New York had possession of the college land-scrip fund.

TABULAR STATEMENT.

Funds derived from individuals, described

in seventy-fifth finding of fact. $ 598,588 65

Funds derived from nation and state:

Western lands.................. 1,648,178 56

Western land contracts........... 439,834 22

Cornell endowment fund........... 128,596 61

College land-scrip fund.......... 473,402 87

-

$3,288,600 91

-'Making the total funds which belonged to Cornell University, September 30, 1881, under section 5 of its charter, $598,588.65; and the total funds already realized, and to be realized, only the right to the incoe of which at that date belonged to Cornell University, under section 6, was $2,690,012.26. (94) I find that the sum of all the property, real and personal, which the said Cornell University had taken before September 30, 1881, by gift, grant, devise, or bequest, did not exceed one million and six hundred thousand dollars. (95) It has not been proved nor established that the property of the Cornell University, owned and held by it on the 30th day of September, 1881, the date of the death of Jennie McGraw Fiske, together with that devised and bequeathed by her last will and testament to said university, exceeded the sum of three millions of dollars.'

On his findings of fact the surrogate decided and held as follows, as conclusions of law: 'I decide and hold, as conclusions of law, that Douglass Boardman, as executor of the last will and testament of Jennie McGraw Fiske, deceased, and as sole surviving executor of John McGraw, deceased, and Cornell University, are entitled to a decree directing (a) that the accounts of Douglass Boardman as executor of Jennie McGraw Fiske, deceased, and as sole surviving executor of John McGraw, deceased, filed in the Tompkins county surrogate's office on the 8th day of January, 1883, be and in all respects is allowed, and the decrees, including the summary statements therein contained, recorded and entered upon said accounts, be in all respects ratified and affirmed, including all payments heretofore made by said executor to Cornell University; (b) that the said executor pay over to Cornell University the sum of one hundred forty-one thousand six hundred and seventy-six and 72-100 dollars, ($141,676.72,) being the balance on hand January 1, 1885, and ready for distribution; (c) and adjudging that said Cornell University is the owner and entitled to all the rest, residue, and remainder of said estate, and directing said executor to pay the same, when sold, to said Cornell University, in money, or in such other form or at such other time as may be mutually agreed upon between said Cornell University and said executor.'

The decree of the surrogate being in accordance with his findings and conclusions of law, the husband and the heirs at law and next of kin of Mrs. Fiske appealed to the supreme court of the state of New York from the whole of the decree; the appeal being taken both upon the facts and upon questions of law. The case was heard by the general term of that court, and is reported in 45 Hun, 354. Judge HARDIN, the presiding judge, delivered an opinion, in which Judge FOLLETT concurred; and Judge MERWIN also delivered a concurring opinion. The three judges were unanimous in reversing the decree of the surrogate.

In the judgment entered by the general term of the supreme court on the 14th of December, 1887, the surrogate's finding of fact numbered 62 was modified so as to read as follows: '(62) The Cornell University has had at all times since its incorporation, and now has, legal and corporate capacity to take, by gift, grant, or devise, real property, in the states of Michigan, Wisconsin, Iowa, Minnesota, Ohio, Indiana, Kansas, and New Jersey, subject to the limitation in its charter; and such is the law in those states, respectively, concerning foreign corporations like the university.' His finding of fact numbered 63 was reversed and stricken out. His finding, above recited, in No. 66, as to the title to the land situate in New Jersey, was reversed and stricken out. All those parts of his finding numbered 75 which fixed the value of the last item mentioned therein at $68,683.33, and which fixed the total value of the items named in that finding at $598,588.65, and each clause in any of his findings which recapitulated those values, respectively, at the sums so stated, especially so much of finding numbered 93 as stated that, on the 30th of September, 1881, 'Cornell University had, held, and owned the property derived from individuals, and described in the foregoing seventy-fifth finding of fact, to the amount andv alue of not exceeding $598,588.65 in the aggregate,' were reversed and stricken out, but only in so far as the aggregate of $598,588.65 was made up of the last item in the seventy-fifth finding, namely, the farm and university buildings located thereon, valued by him at $69,683.33. The following parts of his finding numbered 93 were reversed and stricken out: 'But, under and in pursuance of the Cornell contract of August 4, 1866, the whole net proceeds of the avails of said last-mentioned property, being the proceeds of the sale of said college land-scrip, orlands located therewith, was at that time due or payable by Cornell University to the state of New York, and the total amount and value of the property had, held, and owned by Cornell University September 30, 1881, over and above its obligations to the state of New York, as defined by said contract, was $598,588.65,' 'making the total funds which belonged to Cornell University, September 30, 1881, under section 5 of its charter, $598,588.65; and the total funds already realized and to be realized, only the right to the income of which at that date belonged to Cornell University, under section 6, was $2,690,012.26.' His finding numbered 95 was reversed and stricken out. The judgment of the supreme court then went on to provide as follows:

'And it is further found, adjudged, and decided by this court, in pursuance of the statute in such case made and provided, that at the death of Jennie McGraw Fiske, September 30, 1881, the value of the farm and grounds on which the university buildings are located, consisting of about 260 acres, including the buildings and reservoir, was the sum of $400,000, instead of $69,683.33, as found by the surrogate, and the total value of the items set forth in the finding of the surrogate numbered 75, in cluding this last item, viz., $400,000, was $928.905.32. And it is further found, decided, and adjudged by this court that the property of the Cornell University which was held and owned by it when Jennie McGraw Fiske died, on the 30th day of September, 1881, amounted in value to the sum of $3,015,414.71, made up as follows:

Funds derived from individuals, described

in the seventy-fifth finding of fact,

excluding the last item thereof, as

valued by the surrogate........ $ 528,905 32

The last item in said finding, viz.,

farm of about 260 acres and university

buildings, as valued by this court. 400,000 00

Property derived from Cornell contracts

with the state, as valued by the

surrogate in his findings:

Western lands.................. 1,648,178 56 Western land contracts........... 439,334 22

Cornell endowment fund........... 128,596 61

---

Total......................... $3,145,014 71

Less amount due to the college landscrip

fund for the last 30 cents an acre on

432,000 acres.................... 129,600 00

---

Balance....................... $3,015,414 71

Making the total funds which belonged to Cornell University September 30, 1881, under section five of its charter, $3,015,414.71. And it is further found, decided, and adjudged that there was at that time due to the college land-scrip fund, and to be treated as a part thereof, the sum of $129,600, mentioned above. And it is further found, decided, and adjudged that the college land-scrip fund, consisting of $473,402.87, together with the sum of $129,600 as found above, is not the property of Cornell University, and should not be reckoned or included as a part thereof, of subject to its charter limitation. And this court does further find and decide that, at the date of the death of said Jennie McGraw Fiske, the said Cornell University held and owned real and personal property, of which the yearly income or revenue was more than ($25,000) twenty-five thousand dollars, exclusive of the college landscrip fund then held by the comptroller of the state of New York for the benefit of said university, and such yearly income and revenue was derived in part from lands and avails of sales of land which came to Cornell University, through theC ornell contract of August 4, 1866. And it if further found, decided, and adjudged by this court that at the time of the death of Jennie McGraw Fiske the Cornell University had already reached the limit of property prescribed by its charter, as found above, and was not entitled to, and could not, take or hold any of the property or funds devised or bequeathed to it by her last will and testament, and never had any right, title, or interest in or to the same, or any part thereof, and that at her deceased the legal right and title in and to all of the property and funds so devised and bequeathed by her to the Cornell University passed to and vested in the appellants according to their several rights therein as between themselves, as the same may hereafter appear.'

The judgment than went on to reverse the surrogate's decree of May 25, 1886, with costs to be paid by the executor out of the funds of the estate, and to order the proceedings to be remitted to the surrogate, and that he enter a decree in conformity with the judgment of the supreme court, and make a distribution to the appellants according to their respective rights as between themselves-they having already agreed upon such rights-of all the property in the hands of the executor of Mrs. Fiske, after paying debts, expenses, and legacies other than those to Cornell University, together with all the property and funds which had come into the possession of the executor, and which he had delivered or paid over to Cornell University, and that the university restore into his hands all money and property received from him, and all dividends, interest, and income therefrom, received by the university, less any expenses necessarily incurred in investing and managing the same, and that the surrogate ascertain and fix the amount so received by the university from the executor, with the gains, profits, and income thereof, less such expenses, and enforce restitution of the same to the executor by a decree.

Boardman, as executor of John McGraw and of Mrs. Fiske, and also Cornell University, appealed to the court of appeals of the state of New York from the judgment of December 14, 1887. The court of appeals affirmed the judgment; and, a remittitur from that court having been sent to the supreme court, an order was entered in the latter court on the 12th of December, 1888, making the judgment of the court of appeals the judgment of the supreme court, and awarding the costs of the court of appeals against the executor and the university. The opinion of the court of appeals, delivered by Judge PECKHAM, is reported in 111 N. Y. 66, 19 N. E. Rep. 233. The judges were unanimous, except that Judge FINCH took no part. Cornell University and Boardman, as executor of John McGraw and of Mrs. Fiske, have brought the case to this court by a writ of error directed to the supreme court of the state of New York.

S. D. Halliday, E. Countryman.

[Argument of Counsel from pages 162-167 intentionally omitted]

''Geo. F. Edmunds'', for plaintiffs in error.

''Esek Cowen, Geo. F. Comstock, J. S. Harlan, S. S. Gregory, and John G. Sears'', for defendant in error.

[Argument of Counsel from pages 167-174 intentionally omitted]

BLATCHFORD, J.