On appeal from Superior Court, Chancery Division, certified to this court on its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Wachenfeld, Jacobs and Brennan. For affirmance -- Justices Heher and Oliphant. The opinion of the court was delivered by William J. Brennan, Jr., J.
[22 NJ Page 3] The Chancery Division is supervising the administration by its substituted co-trustees
of the foreign charitable trust here involved. The Attorney-General of Ireland brings this appeal because the Chancery Division did not, as he urged, terminate that administration and transfer the trust assets to the Commissioners of Charitable Donations and Bequests for Ireland or other appropriate Irish trustees for administration in Ireland according to Irish law and under the direction of the Irish courts. We certified the appeal here before argument in the Appellate Division.
The will of William J. Sweeney, late of Hudson County, New Jersey, bequeathed his residuary estate to the United States Trust Company of New York "to build, equip and maintain a library in Kilkee, County Clare, Ireland, to be known as THE SWEENEY MEMORIAL LIBRARY." The bequest was subject to a life estate of the income for his wife; but she predeceased Dr. Sweeney, and the Trust Company declined to accept the appointment as trustee.
In proceedings brought a decade ago by the executors for a construction of the will whether the bequest was valid, and alternatively whether the trust failed because the Trust Company refused to act as trustee, the former Court of Chancery held that a valid charitable trust was created and would not be allowed to fail for want of a trustee, but that substituted trustees would be appointed. Martin v. Haycock, 140 N.J. Eq. 450 (Ch. 1946). The Attorney-General of Ireland urged at that time also that the trust should be turned over to the Commissioners of Charitable Donations and Bequests for Ireland for administration, but the court refused to do so and appointed as substituted co-trustees Augustus J. Martin, a New York resident and an executor under the will, and Edward P. McCluskey, a New Jersey resident. McCluskey died a year later and Victor S. Kilkenny was appointed to succeed him.
The substituted co-trustees have since secured a site in Kilkee and have built and equipped a library building thereon. They have also employed a library staff and have otherwise satisfactorily arranged for the operation of the library. Their total expenditures for these purposes have
approximated $62,000. They have expended in addition some $18,000 for expenses of administration, of which almost $14,500 was for the travel expenses of the trustees and their counsel in going to Ireland to arrange for the construction of the library building and otherwise to attend to the performance of their duties. There remains in their hands in addition to the library about $230,000 of principal and income invested in United States Government Bonds except for relatively small amounts of cash on deposit in a bank in Union City, New Jersey, and in a bank in Kilkee.
The instant proceeding was brought by the substituted co-trustees for the approval of their intermediate account, for allowance of commissions and counsel fees, for instructions how to deal with certain later mentioned problems arising in the management of the library, and for an order continuing them in office as co-trustees. The Attorney-General of Ireland made no objection to the account nor to the requests for allowances. He did, however, counterclaim and cross-claim for an order directing the substituted co-trustees "to turn over to such body or trustee in Ireland, as this Court after appropriate consideration may deem proper, the corpus of the trust referred to in the complaint upon such terms as this Court finds will assure the continuation of the trust for the purposes" intended by the testator. In due course the Attorney-General made a motion for summary judgment, supported by affidavits, which was met by a motion of the substituted co-trustees for judgment on the pleadings upon the ground that the counterclaim and cross-claim failed to state a claim upon which relief could be granted. Without opinion, the trial judge denied the Attorney-General's motion for summary judgment and granted the motion of the substituted co-trustees for judgment on the pleadings.
The action of the trial court in granting judgment on the pleadings implies that the trial judge felt that he must deny the Attorney-General's application as a matter of law. Such is not the case. The general rule is that, unless an intention that administration is to be supervised by the
courts of his domicil is expressed by the testator in his will or is clearly to be collected therefrom, the courts of the testator's domicil will not ordinarily administer a foreign charity created by his will but will direct that the money be paid over to proper persons at the locus of the charity, leaving its administration to the courts of that place. This is so at least when the charity is not repugnant to our laws and ...