Smithsonian Institution v. St. John

This is in effect a controversy between the Smithsonian Institution of Washington, District of Columbia, and the Andrews Institute for Girls, a corporation of the state of Ohio, concerning a will made by Wallace C. Andrews, a resident of the city, county, and state of New York, who died in that city on April 7, 1899. Both Mr. Andrews and his wife perished on that day in a fire in their dwelling house in New York city. Whether husband or wife died first is not known. She was twelve years younger than he. They had no children. The will was executed on November 12, 1891. After some special gifts, which need not be noticed, the will provides:

'Fourth: Upon the death of my said wife, I devise and bequeath to the corporation hereinafter directed to be formed, all the excess and residue of my estate over the sum of $500,000 specified in the third paragraph hereof.

'Fifth: I direct my executor and executrix as soon as practicable after my decease and during the lives of my said wife and her said brother or the life of the longest liver of them, to procure under the laws of the state of Ohio, an incorporation to be formed with proper powers, for the purpose of establishing an institution on the farm known as the Williams farm, formerly owned by me and now owned by my wife, fronting on Erie street, in the town of Willoughby, Lake county, Ohio, or if said farm be for any cause not available, then on other suitable premises in the said town of Willoughby, for the free education of girls and for their support in proper cases during education, with a special view toward rendering them self-supporting.

'Said institution shall contain, among others, a sewing department, cooking department, designing department and departments of phonography and typewriting and other useful work that would afford the pupils employment in life, including such new discoveries and inventions as may be made from time to time tending to enlarge the opportunities for useful and honorable employment for women, and such as will aid them in obtaining honorable and independent positions in life. Such school to be open only to girls between the ages of ten and sixteen, both inclusive.

'Not exceeding one tenth of the sum devoted to the said institution by the fourth paragraph hereof may be used for the erection of suitable buildings therefor on the said farm, or in the contingency above specified, for the purchase of suitable premises in said town and the erection of such buildings thereon, and the income of the remaining nine tenths shall be devoted to the support and maintenance of said institution.

'If, when the said sum shall be received by said corporation, the one tenth thereof shall not, in the judgment of the directors, be sufficient for such erection or such purchase and erection as the case may be, the whole sum may, in their discretion, be allowed to accumulate until the one tenth thereof with its accumulation shall be so sufficient, when such one tenth may be used therefor, while the income of the remaining nine tenths of said sum and accumulations shall be devoted to the support and maintenance of said institution.

'The charter of the said corporation shall also provide, if and so far as may be consistent with law and practicable, for the management of the said corporation by a board of five directors, to consist of the governor for the time being of the state of Ohio, the member of congress for the time being for the congressional district embracing said town of Willoughby, the treasurer for the time being of said county of Lake, the mayor for the time being of Willoughby, and the said Gamaliel C. St. John, and for the choice of a resident of Willoughby by the said governor as successor to the said St. John as often as the fifth place shall become or be vacant.

'Sixth: If my said wife shall die before me, then the dispositions provided for in the third and fourth paragraphs hereof shall take effect upon my death.

'Seventh: I direct my said executor and executrix as soon as they may deem advisable, but within two years after my decease, to sell all my real estate and invest the proceeds in interest-paying securities, and as to all my estate I give them and my trustees power to invest and re-invest the same or any part thereof, having regard both to income and safety.

'Eighth: In case my intention with respect to the said institution for girls shall because of illegality fail, or become impossible of realization, I then devise and bequeath the sum intended for it to the Smithsonian Institution at Washington, District of Columbia, to be devoted to the purposes for which it was established.

'Ninth: I appoint my said wife executrix and my said brother-in-law executor of this my will, and neither as such nor as trustees shall they be required to give security. All the powers herein granted to them may be exercised by the survivor of them and unless limited to their lives, by their successor or successors in the administration of my estate.'

Mrs. Andrews dying at the same time her husband did, his brother-in-law, Mr. St. John, duly qualified as executor and trustee under the will. Thereafter he commenced this suit in the supreme court of New York county, seeking a construction of the will and a determination of the rights of the Andrews Institute for Girls, the Smithsonian Institution, and the heirs at law and next of kin of the deceased. The Andrews Institute for Girls, the Smithsonian Institution, Chief Justice Melville W. Fuller, as Chancellor thereof, the attorney general of the state of New York, and the heirs and next of kin of the deceased, were made parties defendant. At a hearing in a special term of the supreme court of the county of New York it was held that 'the defendant the Andrews Institute for Girls is entitled to the residuary estate of the said Wallace C. Andrews, deceased, together with the income thereof which has accrued since the death of said deceased, after paying the expenses of administration,' and also that the defendant the Smithsonian Institution has no interest in the estate of the said Wallace C. Andrews, deceased. This decision was sustained by the appellate division of the first department, and thereafter, with a slight modification, by the court of appeals of the state, which remitted the record of the supreme court of New York city, where the final judgment was entered. Thereupon that judgment was brought here on a writ of error by the Smithsonian Institution and its chancellor.

The defendants in error filed a motion to dismiss, which was postponed until the final hearing, and the case is now before us on such final hearing and motion to dismiss.

Messrs. Frank W. Hackett and Edmund Wetmore for plaintiffs in error.

[Argument of Counsel from pages 23-25 intentionally omitted]

Messrs. James W. Hawes, Virgil P. Kline, Harold Nathan, Henry Wollman, Sheldon H. Tolles, and Henry M. Earle for defendants in error.

[Argument of Counsel from pages 25-27 intentionally omitted]

Mr. Justice Brewer delivered the opinion of the court: