The Trustees of Amherst College Et Al., Respondents, v. Thomas G. Ritch Et Al., Individually and as Trustees and Executors, Etc., of Daniel B. Fayerweather, Deceased, Et Al., Appellants

Appeal from a judgment of the General Term of the Supreme Court in the first judicial department, entered December 30, 1895, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.

Daniel B. Eayerweather, an old resident of the city of New York, died on the loth of November, 1890,- leaving a will, four codicils, an estate of several millions, consisting chiefly of personal property, and debts amounting to less than $10,000. He. left neither child nor descendant, but a widow and three nieces, his only heirs at law and next of kin, survived him. By the first and second articles of his will, which is dated October 6, 1884, he revoked all prior wills by him made and provided for the payment of his debts, funeral expenses and the costs and charges attending the administration of his estate. By the third article he bequeathed to his wife the sum of $10,000, and by the fourth he devised to her his dwelling house and the furniture therein, his stable, horses, carriages and the like. By the fifth article he gave his wife an annuity of $15,000 during her life and directed that the provisions in his will for her benefit should be in lieu of dower or other interest in his estate.

By the sixth article he gave to Anna Amelia Joyce an annuity of $1,000 during her life, or so long as she should remain unmarried, and by the seventh he gave to Lucy J. Beardsley $100,000; to Mary W. Achter and Emma S. Drury $10,000 each, and to Charles Hennessey, a porter in his store, $1,000.

The eighth, ninth and tenth articles 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 Women’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 becpieath to Bowdoin College, at Brunswick, Maine, the sum of $100,000. To Dartmouth College, at Hanover, Mew Hampshire, the sum of $100,000. To Williams College, at Williamstown, Massachusetts, the sum of $100,000. To Amherst College, at Amherst, Massachusetts, the sum of $100,000. To Wesleyan University, at Middletown, Connecticut, $100,000. To Yale College, at Mew Haven, Connecticut, $300,000, of which $100,000 shall be used for the purposes of the Sheffield Scientific School, connected with said college. To Columbia College, in the city of Mew York, $200,000. To Union Theological Seminary, in the city of Mew York, the sum of $50,000 as a special fund, to be used for the endowment of what are known as cadetships, such use, however, being subject to the discretion of the board of directors of such institution. I also give and bequeath unto Hamilton College, at Clinton, Mew York, $100,000. To the University of Bochester, at Bochester, Mew York, $100,000. To Cornell University, at Ithaca, Mew York, $200,000. To Lafayette College, at Easton, Pennsylvania, $50,000. To Lincoln University, at Lower Oxford, Pennsylvania, $100,000. To the University of Virginia, at Charlotteville, Virginia, $100,000. To Hampton University, at Hampton, Virginia, $100,000. To Maryville College, Maryville, Tennessee, $100,000. To Marietta College, at Marietta, Ohio, $50,000. To Adelbert College, at Cleveland, Ohio, $50,000. To Wabash College, at Crawfordsville, Indiana, $50,000. To Park College, at Parkville, Missouri, $50,000. 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 institutions, 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 in this paragraph contained 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 convert into cash and divide the same equally among the several corporations mentioned in the ninth paragraph of this, my will, share and share alike.”

By the eleventh and last article he appointed Justin L. Bulldey and Thomas Gr. Bitch, executors of his will and trustees of his estate, with authority tpsell and convey, and to do any and all acts in their discretion expedient or necessary to the full execution of the provisions of his will.

Anna Amelia Joyce, who is named in the sixfh^article, was a sister of Mrs. Fayerweather and lived in the family of the testator, for whom she occasionally acted as an amanuensis. She subsequently married and is now Mrs. John B. Beynolds. Lucy J. Beardsley, Mary W. Acliter and Emma S. Drury, mentioned in the seventh article, are the heirs at law and next of kin of the testator. Mrs. Drury, having obtained a divorce, resumed her maiden name and is now known as Emma S. Fayerweather. The property given to the widow by the fourth clause of the will was worth about $100,000. In early life Mr. Fayerweather spent some time in the neighborhood of the University of \"Virginia and his experience and associations at that time awakened an interest in college education. His instructions to Mr. Thomas Gr. Bitch, his legal adviser, who drew this will, were that he wished to dispose of his property in the same general way as in previous wills made by him. In 1815 he executed a will, the contents of which were not disclosed by the evidence, except that it showed an interest in educational institutions. This interest appeared more plainly in a will made in 1880, by which he gave $1,600,000 to fourteen colleges, including twelve of those named in the ninth article of the will that is now the subject of controversy. The residuary clause of the will of 1880 was substantially like the tenth article of his last will made in 1884, except that the beneficiaries were the same fourteen colleges to which he had given specific legacies to the amount of $1,600,000, as aforesaid.

On the same day that the will in question was executed the testator signed a paper of even date, the body of which is as follows:

“ 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.”

Both the will and this paper were prepared under the direction of Mr. Bitch, and were given to him for safe-keeping as soon as they were executed. The only statutes of this state imposing restrictions upon the disposition of property that are applicable to this will are chapter 319 of the Laws of 1848, as amended, which relates to the amount of property that benevolent corporations can receive by devise, and chapiter 360 of the Laws of 1860, which forbids a testator, having a wife, child or piarent, to give more than one-half of his estate to charitable, benevolent or literary institutions. The bequests to the five hospitals named in the eighth clause amount to $95,000, while those to the twenty colleges named in the ninth clause amount to $2,100,000, so that, under the operation of the statute last named, the tenth clause of the will was valid only to the extent of the difference between $2,195,000 and one-half of the estate remaining after the payment of debts.

About two months after he made his will Mr. Fayerweather executed his first codicil, dated December 13, 1884, the disposing part of which is in these words:

“I. I hereby ratify and confirm my said will in every respect, except ho far as the same is modified by this codicil.

“ II. I hereby revoke the tenth paragraph of my said will. which is in the words following: (That paragraph was here quoted literally and inclosed by quotation marks.)

“ 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 duly complied with and carried into effect, I give, devise and bequeath to Justus L. Bulkley and Thomas G-. Bitch, named in- the eleventh paragraph of my said will, to them and their heirs forever.”

Mr. Bitch, who prepared this codicil, also prepared a paper which was substantially copied by the testator and signed by him, bearing the date of December 11th, 1881, and headed “ Private Memorandum,” of which the following is a copy : “ I have made Messrs. Bulkley and Bitch 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.” This paper was placed in an envelope, which was indorsed “ Messrs. J. L. Bulkley and T. Gr. Bitch, to be opened in case of my death,” and was handed by Mr. Payer weather, together with the codicil, to Mr. Bitch for safe-keeping.

Several years passed \"when, on the 7th of January, 1888, Mr. Payer weather executed a second codicil to his will, by which, after making some bequests to persons employed by his firm, he provided as follows :

“ Second. I hereby nominate and appoint my friend, Henry B. Vaughan, of Elizabeth, Hew Jersey, an executor of my will and trustee of my estate, in addition to Justus L. Bulkley and Thomas Gr. Bitch, named as executors and trustees in my said will, and I give to said Vaughan the same powers and authority in every respect as are conferred on said Bulkley and Bitch in and by the eleventh paragraph of my will. I order and direct that no bonds or other security of any kind be required to be given by him as executor or trustee.

“ Third. In all respects, except as herein modified, I ratify and confirm my said will and the first codicil thereto.”

Fourteen months later, and on March 19,1884, he executed a third codicil, whereby he increased the amount of the legacies previously given to Anna Amelia Joyce, Mary W. Achter and Emma S. Drury, provided for the purchase of a burial lot and the erection of a monument, and made bequests to a number of persons in his employment.

There were several interviews between the testator and his said counsel a short time before the execution of the third codioil, during which the private memorandum dated December 11, 1884 was produced by Mr. Bitch and placed before Mr. Fayerweather. In the course of these interviews another paper was signed by Mr. Fayerweather and left with Mr. Bitch, dated March 22, 1889, of which the following is a copy:

“ 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 Horthwestern University, at Evanston, Illinois, is in a prosperous condition I should recommend 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 : Bogers and Clark §500 each; Gould, Campbell and Stone §300 each, and Carpenter §200 ; also James, who now opens and closes the store, §100; John Dixon, §200. I also wish that §1,000 be given to Miss Joyce immediately after my decease, in addition to the provision made for her by my will.”

Mr. Bitch testified that when this paper was signed several suggestions were made to him by Mr. Fayerweather in relation to various colleges named in the ninth article of his will, and, speaking “ generally with regard to institutions,” he said to Mr. Bitch, in substance, that he and Mr. Bulkley must use their best judgment in regard to what came into their' hands.

About a year and a half later, and after Mr. Fayerweatlier’s. health had begun to fail, he wrote a note to Mr. Bitch dated November 3d, 1890, requesting him to bring him “ the balance of the copy of ” his “ will,” doubtless referring to the second and third codicils, and Mr. Bitch did so about four days later. November 10th, 1890, Mr. Vaughan, who had been appointed by. the second codicil as one of the executors and trustees, but who was not then a legatee or devisee, had an interview with Mr. Fayerweather, who produced a copy of the will and three codicils, which Mr. Vaughan read aloud to him at his request. Until then Mr. Vaughan did not know that the residuary estate had been given to Messrs. Bulkley and Bitch, and he o didn’t even then learn of the three memoranda above referred to. He knew that Mr. Fayerweather wanted his residuary estate to go to institutions, and in view of the absolute nature of the residuary gift he entertained some misgivings as to what might become of it. He asked an explanation from Mr. Fayerweather, who said that he believed his wishes would be •carried out. As a result of the conversation Mr. Vaughan •went to his lawyer, Mr. Prescott Hall Butler, who prepared another codicil, revoking the devise and bequest of the residuary estate made to Messrs. Bulkley and Bitch, individually, by the first codicil and restoring the tenth article of the will. On the same day Mr. Vaughan read the draft of this codicil to Mr. Fayerweather, who approved it, and the next day executed it and placed it in the hands of Mr. Vaughan for safekeeping. Mr. Bitch knew nothing about this. On the 13th of November, 1890, Mr. Vaughan had another interview with Mr. Fayerweather, during which two letters were signed by the latter and given to the former to be delivered to Mr. Bitch, one after the other, as if the second had not been written until after the first had been answered. In the first of these letters, which was in the handwriting of Miss Joyce, he requested Mr. Bitch to deliver to Mr. Vaughan the original will and the first, second and third codicils thereto, stating that he wished to examine them with Mr. Vaughan in connection with the copies already furnished. In the second letter, which was written by Mr. Vaughan, but signed by Mr. Fayerweather, the latter said : “ 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 tentli article of 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,” quoting in full the devise made by the third paragraph of the first codicil to Messrs. Bulkley and Bitch. “ 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.” On the same day Mr. Vaughan delivered the first letter to Mr. Bitch, received from him the will and codicils called for, and told him that Mr. Payer weather was too ill to be seen, although he had himself seen him and transacted business with him that day, but he retained in his possession the second letter until the next day, when he delivered that also. Mr. Bitch at once dictated to his typewriter and read to Mr. Vaughan a letter to Mr. Payerweather, saying : “ The intention of the change in question was to enable Mr. 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 this codicil.” Mr. Vaughan thereupon asked what those private memoranda were, and Mr. Bitch had •copies prepared and handed them to him, and he took them ■away with the letter. On the same day Mr. Bitch, who, during all this time, knew nothing of the Butler codicil, wrote :a letter to Miss Joyce, in which he stated : “ I have had two long talks with Mr. Vaughan to-day and yesterday, and I fear Mr. Fayerweather is worrying over his business matters. Mr. Vaughan says that Mr. F. is too ill to be seen, and so I would be glad to have you say to him, if you think it well, that I will execute any paper, or say anything in your presence, or in that of any one else, that will enable him to feel that his wishes will be carried out to the letter. It would be a misfortune, indeed, to me to lose his confidence after so many years through any misunderstanding now. The will and codicils provide carefully for the institutions in which he was interested, and for the relatives and friends to whom he was attached, and I know that at the time the papers were drawn the reasons for each paragraph were considered and approved by him, the object being to prevent any contests. I write thus freely to you, because you have known of Mr. Fayerweather’s affairs, and I believe that you, as well as he, believe that I have only tried to do my duty. If at any time you or Mr. F. would like to see me, I ivill call.” This letter was received by Miss Joyce early in the evening of the same day, and immediately after reading it herself she read it to Mr. Fayerweather, who requested her to hand it to Mr. \"Vaughan, and she did so the next morning. At the same time she read to him a letter written to her that day by Mr. Vaughan, which omitting date, address and signature, is as follows:

“ Will you please explain to Mr. Fayerweather that I obtained the papers from Mr. Bitch. At first Mr. Bitch stated that he would take the papers to Mr. F., but I reminded him that the letter read to give them to me, and he said he would do it. He grew as white, however, as the paper upon which I am writing. I will deliver the second letter to-morrow. There is, however, but little use of this, as I am convinced from his manner that Mr. Bitch knew exactly what he was doing.”

On the next day, which was Saturday, November 15th, Mr. Vaughan called upon Mr. Fayerweather at about 10 o’clock in the forenoon and remained with him until between eleven and twelve. During this period they conversed about another codicil, and Mr. Vaughan was instructed to have one prepared. Mr. Vaughan testified that he did not show the letter which Mr. Ditch had given him for Mr. Fayerweather, or acquaint him with its contents, or even disclose its existence, and that, instead of telling what had taken place between himself and Mr. Ditch, he told him that the latter was “ all right.” Although he had with him copies of the private memoranda that he had obtained from Mr. Dit.ch, he did not so inform Mr. Fayerweather. lie further testified that he made a memorandum upon the envelope containing the private memoranda above referred to, of which the following is a copy : u Clause about Miss Joyce. About the men being with him. More institutions for benefit. Mrs. Beardsley, amount $100,000 in bonds. Strike out about servants in his employ.” This, according to Vaughan’s statement, was a record of the suggestions made by Mr. Fayerweather, avIio carried out one of them at once, by Avriting a letter to Mr. Myrick, his confidential man of business, directing him to give $100,000 in certain securities to Mrs. Lucy J. Beardsley, Avliieh Avas done forthwith. Mr. Fayerweather, as Mr. Vaughan says, referred to his competency in selecting institutions for benefit, and stated that he was not very Avell fitted for that Avork; that he had used his best endeavors and obtained the best advice that he could get, but there Avould have to be others found to avIioiu the rest of the money should be given and that further selections Avould have to be made. Although Mr. Vaughan testified that this conversation and others of like character Avere had during that forenoon, and that he then made the memorandum on the back of the envelope, he never disclosed either fact until the trial of this action, although there Avere prior occasions Avlien it was his duty to do so.

At this time it Avas supposed that Mr. Fayerweather, although far gone Avith consumption, would live until spring, but Dr. Vedder, the attending physician, aaJio called at about 12 o’clock, told Mr. Vaughan that if there were any papers Avhicli he Avished Mr. Fayerweather to sign, he had better have him sign them at once; that 'Monday would not answer, but “ they had better be done ” that day. Mr. Vaughan at once went to Mr. Hitch’s office and had another codicil prepared, now known as the fourth, and returned with it to Mr. Fayerweather’s house between one and two o’clock in the afternoon, when it was executed. Omitting the formal parts, it is as follows:

“First. In all respects, except as hereinafter modified, I ratify and confirm my said will and the codicils thereto.

“Second. I hereby confirm the revocation of the' tenth paragraph of my said will.

“ Third. I hereby amend and change the third paragraph of the codicil, dated and made Dee. 13, 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. Bulklcy, Thomas Gr. Hitch and Henry B. Vaughan, to them and their heirs forever.’ ”

About an hour after the execution of • this codicil Mr. Vaughan, by direction of Mr. Fayerweatlier, given by a nod of the head in response to a question, caused the codicil prepared by Mr. Butler and executed on the eleventh to be destroyed. He did not disclose the fact of the execution of that codicil until after Mr. Fayerweather’s death, nor did he fully disclose the contents of it until the trial of this action. Mr. Vaughan also testified that after the execution of the fourth codicil Mr. Fayerweatlier said to him that “We were to put our heads together and find some other places for the money,” although upon another legal proceeding when testifying upon the same subject he omitted the word “ other.” Miss Joyce testified that she was-in Mr. Fayerweather’s room at all times while Mr. Vaughan was there on this occasion and that no such remark was made. 1SÍ ot long after the execution of the last codicil Mr. Fayerweatlier became in articulo mortis, lingered a few hours and died that night. Mr. Bitch testified that, although he had a thorough knowledge of Mr. Fayerweather’s wishes in respect to his estate, he never mentioned to him the name of any institutions outside of the will and codicils and the memorandum of March 22,1889, as ob jects to which he desired to make a gift, nor did he ever express any wish to have his property given to the colleges and hospitals to whom the executors afterward transferred a large portion of it by .a so-called “ deed of gift,” hereinafter described. He also testified that he never told Mr. Fayer-weather that he would not carry out his wishes as expressed in the will.

The executors promptly presented the will and codicils for probate, but the'widow ana nieces filed objections based upon the usual grounds of defective execution, unsound mind, undue influence and fraud. The contestants were represented by Mr. Frederick B. Condert, Mr. Daniel Gr. Bollins and others. The trial of the issues began on the 2d of February, 1891. The notes, letters and memoranda were read in evidence, Messrs. Bitch, Vaughan and others examined as witnesses, and on the 17th the surrogate announced his intention to admit the will to probate, leaving the contest over the codicils to continue. On the 14th of February, 1891, Mr. John E. Parsons, who represented the residuary legatees, wrote to Mr. Coudert that Messrs. Bulkley, Bitch and Vaughan did not intend to retain for their “ personal purposes ” the residuary estate. On the 24tli of the same month the residuary legatees executed an instrument known in this controversy as the deed of gift, whereby,, after reciting that they were prompted by the determination not to retain for their .own use any part of the residuary estate left to them by the will, and by the desire to make such use of the residuary estate as in. their judgment would best honor the memory of Mr. F&yenveather, they disposed of the same as follows: They

reserved the power to make and retained the right to assent to any enlargement of the provisions made by the will for Mrs. Fayerweather, Mrs. Achter and Mrs. Drury, in case they should be satisfied that such enlargement would not be against the wishes of Mr. Fayerweather. They gave Mrs. Beardsley $100,000, to Miss Joyce and others certain amounts, including the sum of $100,000 to the Hortliwestern University. They then gave $465,000 to eleven hospitals, including the sum of $200,000 additional to the Women’s Hospital. To twenty-one colleges they gave $1,570,000, and directed that the amount in each case should 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, would be of the greatest practical benefit; but the mode of use was to be subject to the approval of the donors. All the rest of the residuary estate, after payment in full of the foregoing, they divided into ten parts and gave five to the Women’s Hospital, one to the Presbyterian Hospital and one to each of four colleges, two of which were named in the will. They closed the instrument as follows: “We execute this instrument, recognizing that there is pending a contest in proceedings for the probate of Mr. Fayerweatlier’s will, and recognizing, further, that if such contest shall not prevail, a .question maybe made about our legal rights as devisees and legatees. W e 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.. Hash, Esq., of the city of Hew York, and Hon. Henry Stoddard, of Hew 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. Hash, in evidence of our acceptance of delivery of said instrument, have subscribed our names the 24tli day of February, 1891.”

Messrs. Hash and' Stoddard accepted delivery of this instrument on the same day that it was executed. Of the eleven

hospitals and twenty-one colleges named therein, only five of the former and six of the latter were mentioned in the will. The contest over the codicils continued and some feeling was aroused. During the progress of the trial, Mr. Vaughan approached Miss Joyce, and, shaking his fist in her face, said : 11 Miss Joyce, I will fight this thing as long as there is a dollar léft of the Fayerweather money, and as long as I have a dollar of my own private fortune, and I want you to tell Mrs. Fayerweather this, and I mean every word I say.” Miss Joyce testified that she told this to Mrs. Fayerweather, who had been an invalid for many years, and that as the result she was confined to her bed for several days. She was weak, nervous and easily disturbed.

On the 5th of March, as the result of negotiations for a settlement of the contest pending before the surrogate, the widow' and next of kin executed a paper, of which the follov'ing is a copy :

“ In consideration of the instrument of even date herewith, executed by Justus L. Bulkley, Thomas G. Hitch and Ilenry 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 Hew York, deceased, and of its delivery to Ilenry Stoddard and Stephen F. Hash, we, the undersigned, being the widow and all 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 Hew York, are hereby withdrawn, and w7e consent to the probate of the same.

“ 2. Ho suit shall hereafter he 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. Hitch and Ilenry 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.”

The instrument of even date referred to in this paper was. executed by Messrs. Bulkley, Bitch and Vaughan on the 5th of March, and on the same day accepted by Messrs. Bash and Stoddard, whereby, uijder the power reserved by the deed of gift, they gave to Mrs. Fayerweather $225,000, to be at her absolute disposal, and increased her annuity .from $15,000 to $25,000. They also agreed to give her a deed of the lot in Woodlaw-n Cemetery intended for the remains of her husband. They gave to Mrs. Achter $42,500, and to Mrs. Drury the same amount, and directed that all these gifts should be subject to the last paragraph of the deed of gift. At the same time the following paper ivas prepared and, between March 22 and June 6, 1891, executed by the officers of the various institutions named in the eighth and ninth clauses of the will, with one exception :

“ Whereas, a contest has been proceeding in the Court of the Surrogate of the county of Bew7 York against the probate of the last will and testament and four codicils thereto, ¡iroponnded 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 $310,000,. 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 :

“ How, 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 $310,000 be paid by the executors of the last will and testament of Daniel B. Fayer-weather, 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.”

On the 24th of Marcli, 1891, the codicils were admitted to-probate upon a written consent signed by the attorneys for all the parties to the contest. On the 12th of June Urs. Fayerweather executed 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, Lucy Fayerweather, widow of Daniel B. Fayerweather, of the city of Hew York, for and in consideration of the sum of $225,000, lawful money of the United States, to me in hand paid by Justus L. Bulkley, Thomas G-. Bitch and Ilenry B. Vaughan, as executors and trustees under the last will and testament of Daniel B. Fayer-weather, 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, Bitch and Vaughan on February 24th, 1891,. which sum is in compromise and full settlement of any and all contests on my part of the will of said Daniel B. Fayer-weather, deceased, or concerning his estate, have remised, released and forever discharged, and by these presents do, for myself and for my heirs, administrators and executors, remise, release and forever discharge the said Justus L. Bulkley, Thomas Gr. Bitch and Henry B. Vaughan, as executors and trustees aforesaid, as individuals and as representatives q£ 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, Tliornas Gr. Bitch and Henry B. Vaughan on the 21tli day of February, 1891, 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 Ho. 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 tills release runs, may be more fully known, and also the legal successors, assigns, heirs, executors and administrators of all the aforesaid persons and corjiorations, of and from 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 annuity given me by the will and codicils thereto of said Daniel B. Fayerweather, deceased, and also my claim for the increased annuity mentioned in the agreement dated March 5th, 1891, and made pursuant to the deed of gift above-referred to.”

Similar releases were, at the same time, executed .by or in behalf of the next of kin. Payments were promptly made by the executors from the fluids of the estate to the widow and next of kin, on.tlie basis of the settlement. During the course of a year the executors also paid eighty per cent of the specific legacies made to hospitals and colleges in the eighth and ninth articles of the will, but they liave made no payment to any college or hospital from the residuary estate, so that they still hold all that part of the property that is involved in this action, amounting with accumulations to nearly $3,000,000. When his will was made Mr. Payer-weather was worth about $3,000,000 ; at the time of his death about $5,000,000, and the entire estate, including payments already made, is now supposed to amount to about $6,000,000. As the specific gifts made by the deed of gift are “ all without interest,” one-lialf of the increase, according to that instrument, as well as $200,000 besides, would go to the Women’s Hospital to whom the testator had given by his will only $10,000. Mrs. Fayerweather, the widow, died July 16, 1892, of the disease by which for many years she had been afflicted, leaving a will ivliereby she gave the bulk of her estate to her sister, Miss Joyce. Before her death she brought an action against Messrs. Bitch, Bulkley and Vaughan to set aside the releases and to establish a trust.in favor of herself and her nieces. The plaintiffs in this action were made defendants, and they set up by way of counterclaim, in substance, the matters upon which they now base their demand for relief. That action was continued by her executors after her decease, hut the complaint ivas finally dismissed by default-. The present plaintiffs, however, promptly notified the executors of Mr. Fayerweather’s will that they should insist that the residuary estate was charged with a trust in favor of the institutions named in the ninth article, and that unless there was a voluntary recognition of this claim an action would be brought to enforce it. As the executors refused to recognize the claim, this action was brought in behalf of five out of the twenty colleges named in the ninth article, against all those interested in the will, the deed of gift, or otherwise, nearly all of whom appeared, and the most of them answered. The theory of the complaint is that the apparently absolute gift in the fourth codicil to Messrs. Bitch, Bulkley and Vaughan, individually, was really made upon a secret trust for the benefit of the plaintiffs and their associates in the ninth article of the will. Ho question ivas raised by any party as to the competency of the testator to make the will and codicils, all of which are conceded to have been properly admitted to probate, but various positions were taken, in regard to the effect of those instruments under all the circumstances. After a trial at Special Term the court filed a decision stating concisely the grounds upon which the issues had been decided, without making findings in detail. The grounds stated were, in substance, that Messrs. Hitch and Vaughan, for themselves and Mr. Bulkley, promised the testator and induced him to believe that if he would make them the residuary legatees of his estate, they would convert it into cash and divide it equally among the twenty corporations mentioned in the ninth article after paying $100,000 to the Northwestern University; that Mr. Fayerweather made those gentlemen his residuary legatees in reliance upon that promise, and died in the belief induced by them that they would act accordingly, but that they had attempted to dispose of the residuary estate in violation of the promise. The judgment directed was that Messrs. Hitch, Bulkley and Vaughan received the residuary estate devised to them in trust for the ninth article colleges ■as well as for the Northwestern University to the extent of $100,000, and that distribution should be made accordingly. This was in substantial accord with the theory of the plaintiffs and the relief demanded in the complaint. Upon appeal the General Term held that the facts found by the Special Term were amply supported by the evidence; that Messrs. Hitch and Vauglian 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, and that there was an understanding between Mr. Bulkley and the testator that the estate should be so disposed of; that the statutory disability ■against devising or bequeathing more than one-lialf of a net estate to any corporation named in chapter 360 of the Laws of 1860 •operates only for the benefit of the relatives in that act named, ■and not for the benefit of the heirs or next of kin; that, as the testator left him surviving a widow as the only person who ■could invoke the protection of the statute, and she had, as an incident to the settlement of the contest of the will, released to the executors all claims to the estate, they took the residnary estate as trustees for the benefit of the ninth article colleges, and that under the circumstances such trust was not rendered invalid by the statute, but should be upheld and carried into effect.

The executors of the widow and two of the next of kin, Mrs. Beardsley not having answered, Mr. Bitch, individually and as executor and trustee, Messrs. Bulkley and Vaughan, as executors, and the most of the donees under the deed of gift, appeal to this court.

The plaintiffs have failed to make out a case of any understanding with reference to the final disposition of the estate between the testator and them or either of them, that the estate or either third thereof was to be disposed of in the manner and' proportions claimed by them; and even if the evidence would justify a finding of a trust for institutions generally, or for the plaintiffs and other institutions in an undetermined and indefinite proportion, it would not avail the plaintiffs in this case. (McCormick v. Grogan, L. R. [4 E. & Ir. App.] 82; Briggs v. Penny, 3 DeG. & S. 539; 3 MacN. & G. 546; Clancarty v. Clancarty, L. R. [31 Ir.] 552-558; In re Diggles, L. R. [39 Ch. Div.] 253, 257, 258; Podmore v. Gunning, 5 Sim. 485; 7 Sim. 644.) If we should allow all the plaintiffs’ assumptions of fact to be in entire accordance with the truth, while it might follow, in some aspects of such a ease, that the three residuary legatees were charged with an equitable obligation to turn over the property to the widow and next of kin, the claim of the plaintiffs is most clearly invalid. (L. 1860, ch. 360.) Plaintiffs are effectually estopped in equity by their conduct towards the residuary legatees and the donees under the deed of gift in relation to the settlement with the widow and next of kin from contesting the title of the donees under the deed of gift. (O'Hara v. Dudley, 95 N. Y. 403.) The plaintiffs are also concluded by the adjudication of the surrogate in relation to the collateral inheritance tax to dispute the title of the residuary legatees and their donees. (L. 1887, eh. 713, §§ 2, 13, 15; L. 1891, ch. 216, § 1; L. 1892, ch. 399, §§ 3, 10, 11, 12, 13.)

There is no foundation for the claim of the defendants Reynolds and -Beardsley, as executors of Mrs. Fayerweather, the widow, and Mary W. Acliter and Emma S. Fayerweatlier, the heirs at law and next of kin. They are bound by the stipulations and releases given on the settlement of the contest in the proceedings on the probate in the Surrogate’s Court. The charges of fraud made by the defendants against Messrs. Hitch, Bulkley and Vaughan completely failed. (In re N. Y., L. & W. R. R. Co., 98 N. Y. 447; Bleakley v. Sullivan, 140 N. Y. 181; Sentenis v. Ladew, 140 N. Y. 466; Mayor, etc., v. M. R. Co., 143 N. Y. 26.) ifo trust has been established in favor of the plaintiffs and the other corporations named in the ninth clause of the will. (Tee v. Ferris, 2 K. & J. 357; Moss v. Cooper, 1 J. & H. 367; O'Hara v. Dudley, 95 N. Y. 403 ; Hooker v. Axford, 33 Mich. 453 ; In re King, L. R. [21 Ir.] 273 ; Wallgrave v. Tebbs, 2 Kay & J. 313; Lomax v. Ripley, 3 Sm. & G. 48 ; Collins v. Hope, 20 Ohio, 492; Carter v. Green, 3 K. & J. 591; Chester v. Urwick, 23 Beav. 407; Moss v. Cooper, 4 L. T. [N. S.] 790; McCormick v. Grogan, L. R. [4 E. & Ir. App.] 82; Boyes v. Carriett, L. R. [26 Ch. Div.] 531; Rowbotham v. Dunnett, L. R. [8 Ch. Div.] 430; Jones v. Bradley, L. R. [3 Ch. App.] 362; Bedilian v. Seaton, 3 Wall. Jr. 279.) Chapter 360 of the Laws of 1860 applies to corporations named in the ninth clause of the will. (Chamberlain v. Chamberlain, 43 N. Y. 440; Hollis v. Drew Theological Seminary, 95 N. Y. 166; Chamberlain v. Taylor, 105 N. Y. 185; Kerr v. Dougherty, 79 N. Y. 327.) If a trust is found extrinsic of the will and codicils in favor of the plaintiffs, such trust would be void under chapter 360 of the Laws of 1860. (Bascom v. Albertson, 34 N. Y. 584; Chamberlain v. Chamberlain, 43 N. Y. 440; McKeown v. Officer, 6 N. Y. Supp. 203; Boson v. Statham, 1 Eden, 508 ; In re Spencer, 57 L. T. [N. S.] 519 ; O'Hara, v. Dudley, 95 N. Y. 115; People ex rel. v. Lorillard, 135 N. Y. 289; Smith v. People, 47 N. Y. 330; People ex rel. v. Potter, 47 N. Y. 375 ; People ex rel. v. Angle, 109 N. Y. 564.) The stipulations and releases of the widow and next of kin operated to transfer their interest in the residuary estate to the donees named in the deed of gift. (Hastings v. B. H. T. Co., 9 Pick. 80-82; Goodtitle v. Bailey, Cowp. 597; Shep. Touch. 82; Huggerston v. Hanbury, 5 B. & C. 101; Bryan v. Bradley, 16 Conn. 474; Bullard v. Hinckley, 5 Me. 272; Pray v. Pierce, 7 Mass. 381; Russell v. Coffin, 8 Pick. 151; Lynch v. Livingston, 8 Barb. 473; 6 N. Y. 422; McKeown v. Officer, 6 N. Y. Supp. 201; Tilden v. Green, 130 N. Y. 29; Harris v. A. B. Society, 2 Abb. Ct. App. Dec. 316; Harris v. Slaght, 46 Barb. 470.) The decree of the surrogate fixing the collateral inheritance tax was an adjudication which is conclusive on the plaintiffs. (L. 1885, ch. 483; L. 1887, ch. 713; McKinney v. Davis, 6 Mo. 501; Wyatt v. Burr, 25 Ark. 476; Yoes v. Moore, 29 Ark. 121; State v. Probate Court, 25 Minn. 25; Moerchen v. Stoll, 48 Wis. 309 ; State v. Riegart, 39 Am. Dec. 628.) The assent of the plaintiffs to the settlement with the widow and next of kin and to the deed of gift estops them from claiming any interest in the residuary estate. (Galliher v. Cadwell, 145 U. S. 368; Lemoine v. Dunklin Co., 51 Fed. Rep. 487; Naddo v. Bardon, 51 Fed. Rep. 493; Speidel v. Henrici, 120 U. S. 377; Weseman v. Wingrove, 85 N. Y. 353; McLean v. Clapp, 141 U. S. 429 ; Herman on Estoppel, §§ 1049, 1050, 1054-1056.)

To fasten a trust upon an absolute devise there must be a promise by the devisee, either express or by acquiescence. (Lomax v. Ripley, Notes of Cases, 12;. Chester v. Urwick, Notes of Cases, 15; Tee v. Ferris, Notes of Cases, 16; Carter v. Green, Notes of Cases, 18; Moss v. Cooper, Notes of Cases, 19; Jones v. Badley, Notes of Cases, 23; McCormick v. Grogan, Notes of Cases, 23; Rowbotham v. Dunnett, Notes of Cases, 29; Boyes v. Carriett, Notes of Cases, 31; In re King's Estate, Notes of Cases, 33.) Knowledge by a devisee of wishes of the testator does not create a trust. (Lomax v. Ripley, Notes of Cases, 12 ; Wallgrave v. Tebbs, Notes of Cases, 14; Creagh v. Murphy, Notes of Cases, 28; Collins v. Hope, Notes of Cases, 64.) A testator’s intention dehors the will does not create a trust. (Addlington v. Cann, Notes of Cases, 3; Briggs v. Penny, Notes of Cases, 10; Johnson v. Ball, Notes of Cases, 10 ; Lomax v. Ripley, Notes of Cases, 12; Tee v. Ferris, Notes of Cases, 16; Juniper v. Bachelor, Notes of Cases, 22; In re King's Estate, Notes of Cases, 33; Mann v. Mann, Notes of Cases, 39; Jackson v. Housel, Notes of Cases, 39; Tole v. Hardy, Notes of Cases, 40; Booth v. Baptist Church, Notes of Cases, 47; Thomas v. Thomas, Notes of Cases, 55.) The communication to the devisee of the testator’s wishes does not create a trust. (Byran v. Godfrey, Notes of Cases, 6; Lomax v. Ripley, Notes of Cases, 12; Creagh v. Murphy, Notes of Cases, 28; Bedilian v. Seaton, Notes of Cases, 37; Ragsdale v. Ragsdale, Notes of Cases, 62; Collins v. Hope, Notes of Cases, 64.) To create a trust requires that a promise shall be aslced or desired and that it shall be given. (Barrow v. Greenough, Notes of Cases, 5; Lomax v. Ripley, Notes of Cases, 12; Wallgrave v. Tebbs, Notes of Cases, 14; Carter v. Green, Notes of Cases, 18; Moss v. Cooper, Notes of Cases, 19; Jones v. Badley, Notes of Cases, 23; McCormick v. Grogan, Notes of Cases, 23 ; Boyes v. Carriett, Notes of Cases, 31; In re King's Estate, Notes of Cases, 33; Bedilian v. Seaton, Notes of Cases, 37.) Where the purpose is to evade statutes like the acts of 1848 and 1860, in the nature of mortmain statutes, a trust will not be enforced. (Boson v. Statham, Notes of Cases, 5; Mucklestone v. Brown, Notes of Cases, 6; Stickland v. Aldridge, Notes of Cases, 6; Russell v. Jackson, Notes of Cases, 11; Tee v. Ferris, Notes of Cases, 16 ; Springett v. Jennings, Notes of Cases, 26; In re, Spencer's Will, Notes of Cases, 32; In re O'Hara, Notes of Cases, 43; Gilman v. McArdle, Notes of Cases, 45; Alston v. Coleman, Notes of Cases, 52; Trotter v. Blocker, Notes of Cases, 51; Cunningham v. Cunningham, Notes of Cases, 61; Gore v. Clarke, Notes of Cases, 69.) A court of equity will decline to take part in a fraud upon the law. (Boson v. Statham, Notes of Cases, 5; Mucklestone v. Brown, Notes of Cases, 6; Stickland v. Aldridge, Notes of Cases, 6; Russell v. Jackson, Notes of Cases, 11; Tee v. Ferris, Notes of Cases, 16 ; Springett v. Jennings, Notes of Cases, 26 ; In re Spencer's Will, Notes of Cases, 32; In re O'Hara, Notes of Cases, 43; Alston v. Coleman, Notes of Cases, 52; Pool v. Harrison, Notes of Cases, 52.) It will decline to do so proprio mota,. (Richardson v. Buhl, 77 Mich. 632.) A promise by one of several devisees does not fasten a trust upon the devise to the others. (Tee v. Ferris, Notes of Cases, 16; Moss v. Cooper, Notes of Cases, 19; Rowbotham v. Dunnett, Notes of Cases, 29.) No trust is created where a discretion is conferred upon the devisee. (Curtis v. Ripon, Notes of Cases, 7; Sale v. Moore, Notes of Cases, 8; Bardswell v. Bardswell, Notes of Cases, 9; Knight v. Bouten, Notes of Cases, 9; Winch v. Brutton, Notes of Cases, 9; Briggs v. Penny, Notes of Cases, 10; Palmer v. Simmonds, Notes of Cases, 13; Reeves v. Baker, Notes of Cases, 13; Greene v. Greene, Notes of Cases, 26 ; Lambe v. Eames, Notes of Cases, 27.) To create a trust clear and definite language must be used. (Curtis v. Ripon, Notes of Cases, 7.)

This secret trust, definite or indefinite, was a scheme to evade a statute, and fraudulent as to those whom that statute protected. (Phillips v. Phillips, 112 N. Y. 197; Willets v. Willets, 103 N. Y. 650; 35 Hun, 401; In re Ingersoll, 131 N. Y. 573; Colton v. Colton, 127 U. S. 300; Moss v. Cooper, 1 J. & H. 352; Russell v. Jackson, 10 Hare, 201; Riker v. Leo, 133 N. Y. 519 ; Lawrence v. Cook, 104 N. Y. 632; In re Kelemam, 126 N. Y. 73; Rowbotham v. Dunnett, L. R. [8 Ch. Div.] 430, 442; O’Hara v. Dudley, 95 N. Y. 417; Prichard v. Thompson, 95 N. Y. 76; Tilden v. Green, 130 N. Y. 29; Read v. Williams, 125 N. Y. 560; Holland v. Alcock, 108 N. Y. 312.) The trust was concealed so as to evade, if possible, chapter 360 of the Laws of 1860. (Chamberlain v. Chamberlain, 43 N. Y. 424.) Any person entitled to share in the estate in case of intestacy may have the protection and benefit of chapter 360 of the Laws of 1860. (Harris v. A. B. Society, 2 Abb. Ct. App. Dec. 316; Rich v. Tiffany, 2 App. Div. 25; Church of the Redemption v. Grace Church, 68 N. Y. 570-582; Stephenson v. Short, 92 N. Y. 433, 441; Harris v. Slaght, 46 Barb. 470; McKeown v. Officer, 25 N. Y. S. R. 319; 6 N. Y. Supp. 201.) The act of 1860 was a remedial act, intended to prevent the wrong frequently done to families by excessive giving away of property for benevolent or charitable purposes, to take effect at death, and should be so construed in all cases as to carry out its beneficent purposes. (Way v. East, 2 Drury, 53 ; O'Hara v. Dudley, 95 N. Y. 420; Chamberlain v. Chamberlain, 43 N. Y. 424; McKeown v. Officer, 25 N. Y. S. R. 322; Harris v. Slaght, 46 Barb. 470 ; Maxwell on Interp. of Stat. [2d ed.] 133 ; People v. Utica Ins. Co., 15 Johns. 380, 381; Tonnele v. Hall, 4 N. Y. 144; People ex rel. v. Potter, 47 N. Y. 375 ; People ex rel. v. Angle, 109 N. Y. 568; P. R. T. Co. v. Dash, 125 N. Y. 93; People ex rel. v. Canvassers, 143 N. Y. 88.) Under the act of 1860 the half part of the estate, after the payment of debts, which the testator is allowed to give to educational and charitable institutions, is to be computed with reference to the value of his estate at the time of his death. (Harris v. A. B. Society, 2 Abb. Ct. App. Dec. 316; Hollis v. D. T. Seminary, 95 N. Y. 166, 178.) The balance which testator has attempted to give by will to institutions, “in trust, or otherwise,” should be treated as property not disposed of by the will, and as such is vested, under the Statute of Distributions, one-lialf in his widow and one-sixtli in each of his three nieces. (McKeown v. Officer, 25 N. Y. S. R. 319; Harris v. Slaght, 46 Barb. 470; 4 Abb. Pr. [N. S.] 421; Read v. Williams, 125 N. Y. 560; O’Hara v. Dudley, 95 N. Y. 403; Wager v. Wager, 89 N. Y. 161; Bowers v. Smith, 10 Paige, 200.) The act of 1860 cannot be evaded by a secret trust. (27 Am. & Eng. Ency. of Law, 9; 1 Hill on Trustees [4th ed.], 164; Stockton v. Railroad Co., 50 N. J. Eq. 52; Railroad Co. v. Commonwealth, 7 Atl. Rep. 371; People v. N. R. S. R. Co., 121 N. Y. 582; People v. C. G. Co., 130 Ill. 268; State v. S. O. Co., 49 Ohio St. 137; Kerr on Fraud & Mistake, 43, 279 ; O'Hara v. Dudley, 95 N. Y. 420, 421; Boson v. Stat-ham, 1 Cox Eq. Cas. 16; Mucklestone v. Brown, 6 Ves. 52; Stickland v. Aldridge, 9 Ves. 516; Pilkington v. Broughey, 12 Sim. 114; Way v. East, 2 Drury, 53.) The twenty colleges are literary or scientific corporations, and within the act of 1860. (L. 1870, ch. 51, § 3; Chamberlain v. Chamberlain, 43 N. Y. 424; 3 Lans. 48 ; Hollis v. D. T. Sem., 95 N. Y. 166.) The deed of gift of February 24, 1891, was a fraud. (Perry on Trusts, § 172; Huguenin v. Basely, 14 Ves. 273; Allcard v. Skinner, L. R. [36 Ch. Div.] 160.) The transactions of the executors and trustees with the widow and nieces were fraudulent and should he set aside. (Blake v. Monatt, 21 Beav. 613 ; 73 N. Y. 597; 57 N. Y. 473 ; 1 Lewin on Trusts, 265; Kerr on Fraud & Mistake, 192 ; Gandy v. McCauley, L. R. [31 Ch. Div.] 16.) The agreement and releases were obtained from the widow and nieces as part of the scheme of fraud embodied in the deed of gift. (Kerr on Fraud & Mistake, 43 ; Warner v. Blakeman, 4 Abb. Ct. App. Dec. 530 ; Fairchild v. McMahon, 139 N. Y. 290 ; Jones v. Jones, 120 N. Y. 589, 598, 599 ; Nat. L. Ins. Co. v. Minch, 53 N. Y. 145; Krumm v. Beach, 96 N. Y. 398; Mayer v. Dean, 115 N. Y. 556 ; C. C. & I. Co. v. Sherman, 30 Barb. 553.) The releases were obtained by a breach of the fiduciary duty which the executors and trustees owed to' the widow and next of kin. (Wager v. Wager, 89 N. Y. 166; Read v. Williams, 125 N. Y. 560, 566; Bowers v. Smith, 10 Paige, 200; Tilden v. Green, 130 N. Y. 52; O'Hara v. Dudley, 95 N. Y. 403, 411, 422; Holland v. Alcock, 108 N. Y. 312; In re Ingersoll 131 N. Y. 573; Russell v. Jackson, 10 Hare, 204; Jones v. Badley, L. R. [3 Eq. Cas.] 635; Perry on Trusts [4th ed.], § 166; Thomson v. Eastwood, L. R. [2 App. Cas.] 215; C. C. & I. Co. v. Sherman, 30 Barb. 553.) The agreement and releases cannot be maintained in equity as fair settlements of doubtful rights. (Kerr on Fraud & Mistake, 124; Adair v. Brimmer, 74 N. Y. 554; Walker v. Symonds, 3 Swanst. 72; 2 Beach on Mod. Eq. Juris. § 1005; Harriman on Cont. 247; Perry on Trusts [4th ed.], § 179; Stewart v. W. R. Co., 128 U. S. 388 ; Hill on Trustees, 148; Godefroi on Trusts, 485 ; Gandy v. Macauley, L. R. [31 Ch. Div.] 1; Thompson v. Eastwood, L. R. [2 App. Cas.] 215; Dickson v. Paterson, 160 U. S. 592; Leach v. Leach, 65 Wis. 285 ; Farnam v. Brooks, 9 Pick. 220; Huguenin v. Baseley, 14 Ves. 273; Landsdowne v. Landsdowne, 2 J. & W. 205; Stewart v. Ahrenfeldt, 4 Den. 190 ; In re Keleman, 126 N. Y. 73.) The gifts of $310,000 were inadequate as a price for the sale and conveyance of the interests of the widow and nieces in the residuary estate, which were worth at least $2,200,000. (Parmelee v. Cameron, 41 N. Y. 392; Kerr on Fraud & Mistake, 186, 187; Wright v. Wright, 26 Atl. Rep. 166; Dunn v. Chambers, 4 Barb. 376; Jones v. Jones, 120 N. Y. 589, 599; Barnard v. Gantz, 140 N. Y. 249; Tait v. Willliamson, L. R. [2 Ch. App.] 55; Morse v. Royal, 12 Ves. 355, 371; Gandy v. Macauley, L. R. [31 Ch. Div.] 16; Crowe v. Ballard, 1 Ves. 218; Thompson v. Eastwood, L. R. [2 App. Cas.] 215.) The agreements and leases were obtained by Bitch, Bnlkley and Vaughan by oppressive conduct toward the sick widow, accompanied with threats, and by the abuse of their position and power as executors and trustees in control of the estate, and constitute duress. (Kerr on Fraud & Mistake, 45; Sears v. Shafer, 6 N. Y. 268; Allore v. Jewell, 94 U. S. 506; Griffith v. Godey, 113 U. S. 89; Harding v. Wheaton, 2 Mas. 387; Hall v. Perkins, 3 Wend. 626; Green v. Roworth, 113 N. Y. 462; Weller v. Weller, 44 Hun, 172; 112 N. Y. 655 ; Toms v. Greenwood, 30 N. Y. S. R. 478; Barnard v. Gantz, 140 N. Y. 249; Farnam v. Brooks, 9 Pick. 220.) The plaintiffs and defendants insist that they respectively should be allowed to keep and enjoy the advantages, which the executors secured from the widow and nieces by their releases, because the widow was represented in the probate proceedings by competent and independent advisers and are, therefore, bound. This is untenable. (Gibbs v. Daniel, 4 Gift. 162; Nesbit v. Lockman, 34 N. Y. 167; Weller v. Weller, 44 Hun, 172; 112 N. Y. 655 ; Grosvenor v. Sherratt, 28 Beav. 659 ; Tate v. Williamson, L. R. [2 Ch. App.] 155.) These defendants are entitled to affirmative relief. (Code Civ. Pro. §§ 521,1204; Derham v. Lee, 87 N. Y. 599; Mahr v. N. U. F. Ins. Society, 127 N. Y. 452; Turner v. Conant, 18 Abb. [N. C.] 160; Price v. Holman, 17 N. Y. S. R. 572; Love v. Dierckes, 16 Abb. [N. C.] 47, 58, 59; Derrick v. Emmens, 38 N. Y. S. R. 481; Gould v. C. C. Nat. Bank, 99 N. Y. 333; Bosley v. N. M. Co., 123 N. Y. 551.) This case is to be decided in this court under the jurisdiction and practice which prevailed here before January 1, 1896. (Code Civ. Pro. § 190 ; Getty v. Devlin, 54 N. Y. 403; N. T. Bank v. Wetmore, 124 N. Y. 241 ; Thurber v. Chambers, 66 N. Y. 42; Piper v. Hoard, 107 N. Y. 73; Post v. Mason, 91 N. Y. 540; In re Keleman, 126 N. Y. 73.) It is no 'answer to the claim of the widow and nieces to have these agreements and releases set aside that Pitch. Bulldey and Vaughan obtained them for the benefit of colleges and hospitals. (Fairchild v. McMahon, 139 N. Y. 290; Jones v. Jones, 120 N. Y. 589, 598; N. L. Ins. Co. v. Minch, 53 N. Y. 145 ; Krumm v. Beach, 96 N. Y. 398 ; Mayer v. Dean, 115 N. Y. 556; C. C. & I. Co. v. Sherman, 30 Barb. 553; Perry on Trusts, § 172.) The doctrine of election is not applicable to this case. (Hawley v. James, 16 Wend. 61, 254; Thompson v. Clendenning, 1 Sandf. Ch. 387, 397; Arnold v. Gilbert, 3 Sandf. Ch. 531, 563; Chipman v. Montgomery, 63 N. Y. 221; 1 Pom. Eq. Juris. §§ 512, 515 ; 2 Story’s Eq. Juris. § 1097; Kerr on Fraud & Mistake, 451, 453 ; Terry v. Munger, 121 N. Y. 161; E. C. F. Co. v. Hersee, 103 N. Y. 25 ; Sawyer v. Wood, 3 Johns. Ch. 416 ; Jones v. Jones, 120 N. Y. 589 ; Akin v. Kellogg, 39 Hun, 256 ; Stuart v. Waterhouse, 10 Yerg. 94; Read v. Williams, 125 N. Y. 560.)

There is no evidence that the absolute legacy contained in the fourth codicil, executed on November 15, 1890, was upon an indefinite trust in favor of charitable or literary or educational institutions generally. (In re Keleman, 126 N. Y. 73; Fairchild v. Edson, 77 Hun, 298; Matter of O'Hara, 95 N. Y. 403; Lawrence v. Cooke, 104 N. Y. 632; McCormick v. Grogan, L. R. [4 Eng. & Ir. App.] 82; Wallgrave v. Tebbs, 2 K. & J. 313.) If the court should find that there was a resulting trust in favor of the plaintiffs and the other legatees under the ninth clause of the will, then, so far as said residue, together with the legacies in the will and codicils to benevolent and literary institutions, exceeds one-half of the testator’s estate at the time of his death, such trust would be void under the statute of 1860 (Chap. 360), and such excess passed as intestate estate to the widow and next of kin, and by their releases to the donees under the deed of gift. (Chamberlain v. Chamberlain, 43 N. Y. 440; Hollis v. D. T. Sem., 95 N. Y. 177; Boson v. Statham, 1 Cox Eq. Cas. 16; O'Hara v. Dudley, 95 N. Y. 415.) The plaintiffs are concluded by the adjudication of the surrogate in relation to the collateral inheritance tax to dispute the title of the residuary legatees and their donees. (L. 1887, ch. 713; L. 1891, ch. 216; L. 1892, ch. 399.)

If the twenty colleges have got a trust, they will get their money without any release by Mrs. Fayerweather, but if the act relating to wills applies, they have hot only not got any trust, but they have not got any interest at all, and no release by Mrs. Fayerweather, unless it were a conveyance to them, which is not, and could not be successfully, pretended, could give them any interest. (McKeown v. Officer, 25 N. Y. S. R. 319; Harris v. Slaght, 46 Barb. 470; Harris v. A. B. Society, 4 Abb. Pr. [N. S.] 421.) The effect of the act relating to wills upon ' the facts found by the trial court was to create a trust ex maleficio upon one-half of the whole estate, in favor of the widow and next of kin. This trust sprang into life immediately upon the death of the testator, and the residuary legatees took the property impressed with it. No other person had any interest of any sort in this - one-lialf of the estate. (O'Hara, v. Dudley, 95 N. Y. 403; Lefevre v. Lefevre, 59 N. Y. 434; Bascom v. Albertson, 34 N. Y. 584; In re McGraw, 111 N. Y. 06; Downing v. Marshall, 23 N. Y. 366; Harris v. A. B. Society, 4 Abb. Pr. [N. S.] 421; McKeown v. Officer, 25 N. Y. S. R. 319; Chamberlain v. Chamberlain, 43 N. Y. 424; Stephenson v. Short, 92 N. Y. 433; Hollis v. D. T. Sem., 95 N. Y. 166.) The deeds of ■ release are effectual to convey to the donees under the deed of gift the one-lialf of the estate. (Schouler on Per. Prop. [2d ed.] § 77; Story’s Eq. Juris. § 1047; French v. Carhart, 1 N. Y. 96; In re Ladue, 118 N. Y. 213, L. I R. R. Co. v. Conklin, 29 N. Y. 572; Pray v. Pierce, 7 Mass. 381; Hastings v. B. H. T. Co., 9 Pick. 80; 2 Black. Comm. 324; Miller v. Emans, 19 N. Y. 384; Ham v. Van Orden, 84 N. Y. 269.)

The statute bars any recovery, at least as to one-half of the estate. (L. 1860, oh. 360.)

This action is brought to establish and enforce a constructive trust. Equity constructs and enforces such trusts by reason of acts or threatened acts of parties which are in violation of good faith. It fastens a conscientious obligation upon them by virtue of the relation which they have assumed towards others, and which they ought not to be permitted to violate. ( Wallgrave v. Tebbs, 2 K. & J. 313 ; McCormick v. Grogan, L. R. [4 Eng. & Ir. App.] 82 ; Kilpatrick v. Gledden, 81 Me. 137; Williams v. Fitch, 18 N. Y. 546; Chester v. Unwick, 23 Beav. 47; Browne v. Browne, 1 H. & J. 43 ; Grant v. Bradstreet, 87 Me. 583 ; Dowd v. Tucker, 41 Conn. 197; Buckingham v. Clark, 61 Conn. 204; Garther v. Garther, 3 Md. Ch. 158; Brooke v. Chappell, 34 Wis. 405; Reech v. Kennegal, 1 Ves. Sr. 123; Barrow v. Greenough, 3 Ves. 152; Ragsdale v. Ragsdale, 68 Miss. 92.) The devise of the residuary estate to Bitch, Bulkley and Yaughan was made upon the assurance of Bitch and Yauglian for themselves and Mr. Bulkley that it should be divided equally among the colleges named in the ninth paragraph of the will. The finding of the Special Term, affirmed by the General Term, is conclusive upon this proposition. (Halpin v. P. Ins. Co., 118 N. Y. 165; Crim v. Starkweather, 136 N. Y. 635; Burnap v. Nat. Bank of P., 96 N. Y. 125, 131; Koehler v. Hughes, 148 N. Y. 507, 515; Hewlett v. S. C. S. Co., 84 Hun, 248.) There was abundant evidence to support the finding of the Special Term. (Phillips v. Phillips, 112 N. Y. 197, 202; Colton v. Colton, 127 U. S. 300.) The plaintiffs’ equitable rights to the residuary estate are not affected by the act of 1860, which is confined to a devise or bequest in a last will and testament, and the plaintiffs’ rights do not arise out of a devise or bequest in Mr. Fayerweatlier’s will. (Harris v. Horwell, Gilb. Eq. 11; 2 Eq. Cas. Abr. 46 ; Addington v. Cann, 3 Atk. 141; O'Hara v. Dudley, 95 N. Y. 403 ; Rookwood's Case, Cro. Eliz. 164; Chester v. Urwick, 25 Beav. 407 ; Williams v. Fitch, 18 N. Y. 546 ; Browne v. Browne, 1 H. & J. 43 ; In re Boyes, L. R. [26 Ch. Div.] 531; In re King