Landmarks of Tompkins County, New York : including a history of Cornell University, Part 50

Author: Hewett, Waterman Thomas, 1846-1921; Selkreg, John H
Publication date: 1894
Publisher: Syracuse, N.Y. : D. Mason
Number of Pages: 1194

USA > New York > Tompkins County > Landmarks of Tompkins County, New York : including a history of Cornell University > Part 50

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The year 1893, the twenty-fifth of the library's existence, was made noteworthy by three remarkable gifts. First came in February the generous gift of the comprehensive and carefully selected law library of about twelve thousand volumes, collected by the late N. C. Moak of Albany. This collection, which had long been known to lawyers as the finest private law library in America, was purchased and presented to the Law School of Cornell University as a memorial of the first dean of the school, Douglass Boardman, by his widow and daughter. By this gift the law library was more than doubled in numbers and at once took rank among the leading law libraries of the country.

Next came in June the noble gift of the extensive library of the late Friedrich Zarneke of Leipzig, an unusually complete working library in the fields of Germanic philology and German literature, which was purchased and presented to the university by William H. Sage, a member of the Board of Trustees. This library, which numbers about thirteen thousand volumes, is especially rich in German literature before the time of Luther, and contains three remarkably full special collections devoted to Lessing, Goethe and Christian Reuter.

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The third great gift of this year was an astonishingly complete col- lection of Dante literature, numbering about three thousand volumes, presented by Willard Fiske. This is undoubtedly the finest and largest collection of Dante literature to be found outside of Italy.

Following, close upon these, came the gift of an interesting collection of Spinoza literature, containing about four hundred and fifty volumes, presented to the Library by President White.

At the present time the total extent of the University Library is in round numbers about 160,000 volumes and 30,000 pamphlets. To attempt any description of the contents of the Library is out of the question in a sketch like this. It may be said, however, that the Library is especially strong in collections of scientific periodicals and transactions of learned societies. The more important of the special collections have already been mentioned, but it may be noted that the White Historical Library contains large and valuable special collections on the following subjects: Reformation, Torture, Witchcraft, Thirty Years War, and the French Revolution, also a goodly number of incunabula and manuscripts. Another interesting collection consists of the works on telegraph and electro-magnetism, formerly owned by S. F. B. Morse, the inventor of the telegraph, which were purchased and presented to the library by Ezra Cornell in 1873.

THE GREAT SUIT.

Mr. John McGraw had been closely identified with the history of the university from the beginning, having been one of the trustees men- tioned in the act of incorporation. His active interest continued until his death. In the early history of the university he had presented the McGraw Hall, a building designed primarily to contain the library, and the collections of natural history, and to furnish lecture rooms and labora- tories for these departments. He did not regard his beneficence to the university at an end with this gift; he had considered other plans, but had left them to be executed by his only daughter in accordance with her own judgment and tastes.

Miss Jennie McGraw was born in Dryden in September, 1849. She was educated in Canandaigua and at Pelham Priory, an Episcopal school in New Rochelle. Miss McGraw had a native enthusiasm for foreign travel, and a genuine unaffected literary taste. She spent the year 1859-60 in travel in Europe, and resided for a considerable time in

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Berlin for the purpose of study. In 1875 and 1876, she again visited Europe, and made an extended trip through England and Scotland, visiting also France, Italy and Spain. After the death of her father, she sailed for Europe and extended her travels to Sweden and Norway, going as far as the North Cape, and enjoying keenly the grand scenery of the mountains and fiords. She also visited Russia and Italy. She loved to spend days among the famous paintings of the Louvre and the Vatican. All foreign life possessed a charm for her. She visited Nor- mandy and Brittany, where she found delight in the picturesque archi- tecture and in the life of the peasantry. She shared fully her father's interest in the university. The large wealth which she had inherited was spent in the purchase of paintings and statuary, with which she in- tended to fill the beautiful mansion which she was erecting on a site where, for many years, she had dreamed of having a home. It was her purpose that the numerous art treasures which she acquired should be- come the foundation of a gallery which was to be connected with the uni- versity. At the opening of the university her fine taste was manifested in the presentation of the chimes, which were her personal gift, and called forth that exquisite poem from Judge Finch, which will be sung by so many generations of students. Shrinking as regards the public, she revealed to those who knew her intimately a loyal and beautiful spirit, which won the deepest regard of those who shared her friend- ship; generous, it was her wish that her noble fortune should be a source of joy and blessing to others. Her strength was not equal to the fatigue and excitement of constant travel. Her health failed. The year before her death she was married, and visited Egypt in the hope of being benefited; but the trip failed to restore her, and she desired to return to her native land. She died a few days after her arrival. Her generous spirit was shown by her will. After giving to her husband and friends, and to objects of benevolence more than a million dollars, the residue of her large fortune was left to the university to found a library which should equal her hopes for its future.

Her marriage to Professor Willard Fiske took place at the American Legation at Berlin on July 14, 1880. Soon after the death of her father she made a will, in which, after certain specific bequests, she bequeathed to the university the sum of fifteen thousand dollars for a Student's Hos- pital and twenty-five thousand dollars to maintain it; fifty thousand dol- lars for the completion of the McGraw Hall and for a fund to sustain it; two hundred thousand dollars to constitute the McGraw Library

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Fund, the income of which was to be spent in the support of the Library. She also made the university the legatee of her residuary estate.

She had purchased a beautiful site adjacent to the university grounds and overlooking lake and valley, upon which, at the time of her death, she was erecting a fine residence of stone. The numerous paintings, statues and other works of art and books, which she had purchased abroad, became by the terms of her will the property of Cornell University. She died at her husband's residence upon the campus, September 30, 1881.

On January 8, 1883, after due citation of the parties interested, there was a judicial settlement of her estate. On the 6th of September, 1883, a petition was presented by her husband, Willard Fiske, opening the decree of settlement, to which, on the 24th day of October following, her kinsmen, being heirs at law or legatees under her father's or her own will, were admitted as participants in the contest which now arose. The value of the estate which she had received from her father was estimated to be worth abont $1,600,000. Her fortune at her death amounted to about $2,025,000, the property which she had inherited having increased rapidly in value during the prosperous years from 1877 to 1881, in addition to which there was a trust fund of $250,000 in her favor, from her father's estate, which she was to receive ten years later. This will was now contested on various grounds, the principal being, first, the provision in the charter of Cornell University which limited the property which it might hold, to $3,000,000; secondly, the provision of the statute which forbade a wife having a husband living to bequeath more than one-half of her property to religious or benev- olent purposes. The ablest counsel appeared to discuss the difficult and intricate questions of law which were involved. Great interest was felt, not only in the university, but abroad; especially among educational institutions. It was felt that the creation of a great university library, which would become possible by the realization of this gift, was a State and National blessing and would enable the university within a short time to gather about it facilities for study, as regards its literary collections, not surpassed by any university in the country. The question of greatest importance connected with this case, and upon which the other conclusions depended, was as to the value of the estate devised, and the amount of property which the university actually possessed. The National Land Grant had been bestowed upon the State

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of New York in trust for a specific purpose. It had received land scrip or promises of land, which might be subsequently selected, not land itself. The value of this land scrip when the university was chartered was sixty cents per acre. The entire amount which the State then held, would have yielded at the market price about half a million dollars. In this emergency Mr. Cornell had offered to purchase the remaining scrip, about eight hundred thousand acres, to locate the same on selected lands and pay all costs of surveys, taxes, etc., and when the market was favorable, to sell the land and pay all the proceeds into the State treasury, less the actual expenses which he had incurred, the same to constitute the "Cornell Endowment Fund," the income of which should be paid forever for the support of the university. The condition of the sale or conveyance of the land to him was that he should bind himself to pay all the profits to the State treasury for the university. He was to do for the State what it could not do for itself, for one State could not locate land in another State without producing a confusion of jurisdiction, which was, moreover, distinctly prohibited by the Land Grand Act. It would also have it in its power to affect the market value of property in another State by its action. The question was: Are these additional proceeds a part of the consideration which Mr. Cornell agreed to pay for the land; and if so, do they constitute a separate fund, not subject to the special provisions of act of Congress, but form a personal gift of Mr. Cor- nell to the university, a gift possible only through years of labor and through the risk of his personal fortune ? Was the State a trustee for the entire sum realized from the sale of the national land, responsible for its reception and administration, as it was for previous sales which con- stituted the "College Land Scrip Fund," or was the university the owner?

Had not the State of New York limited or modified the aet of Con- gress? And if it apparently did so, would such action be sustained by the United States Supreme Court? These were some of the questions which were required to be passed upon by the highest State and National judicatories. The trustees of the university regarded the execution of the trust which they had received as of so binding a character that it was incumbent upon them to maintain the obligation imposed upon them by Mrs. Fiske's legacy. A decision in the Probate Court was not reached until May 25, 1886. From this decision an appeal was taken to the General Term of the Supreme Court of the State of New York, which rendered a decision on the 20th of August, 1887, reversing the judgment pronounced by the surrogate, and deciding that Cornell Uni-

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versity had already reached the limit of property prescribed by its charter, at the time of the death of Mrs. Jennie McGraw-Fiske, 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.

From this judgment of the court an appcal was then taken by the counsel of the university to the Court of Appeals, by which a decision was rendered on November 27, 1888. This decision sus- tained the position assumed by the contestants of the will. In an elaborate opinion pronounced by Judge Peckham, in which the remain- ing justices, with the exception of Justice Finch, who took no part, concurred, it was held that a corporation has the right to hold, pur- chase, and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount specified in the charter; that no corporation possesses or can exercise any corporate powers, except such as shall be necessary to the exercise of the powers enumerated and given in its charter, or in the act under which it is in- corporated ; that no devise to the corporation shall be valid unless such corporation be expressly authorized by its charter, or by statute, to re- ceive it by devise; that the college, being a corporation, has power to take and hold by a gift, grant, or devise, any real or personal property, the yearly income or revenue of which shall not exceed the value of twenty-five thousand dollars.

The decision was based on the following statement of facts, and of law :

In the act of Congress donating the public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts, a certain appropriation of the pub- lic lands was donated to the different States for the purposes above ex- pressed, but to such donation there were several conditions attached :

(a). The land should be selected from the National lands in the State to which the grant was made, if there were public lands enough within it to permit it; if not, the Secretary of the Interior was directed to issue to each of the States land scrip to the amount in acres to which the State was entitled, which scrip was to be sold by the State and the proceeds thereof applied to the uses and purposes prescribed in the act, and for no other use or purpose whatever.

(b). In no case should a State to which land scrip was issued, be allowed to locate the same within the limits of any other State or Terri- tory, but their assignees might locate it on any of the unappropriated

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lands of the United States which were subject to sale at private entry at $1.25 or less per acre.

(c). All expenses of management, superintendence and taxes from the date of the selection of lands previous to their sale, and all ex- penses for the management and disbursement of the moneys received from such sales were to be paid by the State, so that the entire proceeds of the lands should be applied to the purposes named.

(d). All moneys derived from the sale of the lands by the States to which they were apportioned, and from the sales of land scrip, were to be invested by the States in stocks of the United States or of the States or some other safe stocks yielding not less than five per cent. upon the par value of such stocks, and the moneys so invested were to constitute a perpetual fund, the interest of which should be inviolably appropriated to the endowment and maintenance of at least one col- lege, where, among other subjects, agriculture and the mechanic arts should be taught.

(e). If any portion of the invested fund, or any portion of the in- terest was lost, it was to be replaced by the State, so that the capital of the fund should remain forever undiminished and the annual interest should be regularly applied without diminution to the purposes men- tioned in the act.

To these conditions the State was required to give its assent by legis- lative act, and the grant was only authorized upon the acceptance of them by the State. This gift was bestowed upon Cornell University upon condition that the Hon. Ezra Cornell should give five hundred thousand dollars in money to the university, and twenty-five thousand dollars to the trustees of the Genesee College at Lima, in this State. The university having received this sum the question arose: How can it dispose of the scrip in the best possible manner so that the income of the university shall be increased to the greatest possible extent? The result of throwing upon the' market such enormous amounts of the public land as had been donated by Congress to the several States was a fall in the market value of the land and, of course, of the scrip which it represented, to a sum far less than the established price for govern- ment lands. In the fall of 1865, Mr. Cornell purchased of the comp- troller one hundred thousand acres of land-scrip for fifty thousand dollars, and gave his bond for that sum, upon the condition that all the profits which should accrue from the sale of the land should be paid to Cornell University.

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On April 10, 1866, the Legislature authorized the comptroller to fix the price at which he would sell and dispose of any or of all the lands or land scrips donated to this State, such price not to be less than thirty cents per acre for said lands. He might contract for the sale thereof to the trustees of Cornell University. If the trustees should not agree to purchase the same, then the commissioners of the Land Office might receive from any persons an application for the purchase of the whole or any part thereof at the price so fixed by the comp- troller. The trustees or such persons as should purchase the land scrip were required to make an agreement and give security for the per- formance thereof to the effect that the whole net avails and profits from the sale of the scrip or the location and use by said trustees, per- son or persons of the said land, should be paid over and devoted to the purposes of such institution or institutions as have been or shall be created in accordance with the provisions of the act of Congress.

On June 9, 1866, Mr Cornell in behalf of the trustees informed the comptroller that they would be unable to purchase and locate the land scrip as they had no funds belonging to the institution that could be appropriated to that purpose. On the same day Mr. Cornell made to the comptroller the proposition, by the acceptance of which a contract was made with him, by which he agreed to place the entire profits to be derived from the sale of the lands to be located with the college land- scrip in the treasury of the State, if the State would receive the same, as a separate fund from that which might be derived from the sale of scrip, and would keep it permanently invested, and appropriate the proceeds from the income thereof annually to the Cornell University for the general purposes of said institution, and not to hold it subject to the re- strictions which the act of Congress placed upon the fund derivable from the sale of the college land-scrip, or as a donation from the gov- ernment of the United States; but as a donation from Ezra Cornell to Cornell University.

The comptroller had fixed the price of the scrip at fifty cents per acre which was somewhat less than the market price for small parcels, but which, in consideration of the large quantity which was to be dis- posed of, and the fact that the prospective profits to be derived from the sale and location of the lands were to go into the State treasury, he considered fair as well for the purchaser as for the State. "Acting upon the above basis, I propose to purchase said land scrip as fast as I can advantageously locate the same, paying therefor at the rate of

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thirty cents per acre in good seven per cent. bonds and securities and obligating myself to paying the profits into the treasury of the State as follows: Thirty cents per acre of said profits to be added to the college land scrip fund and the balance of said profits to be placed in a separate fund to be known as the Cornell University fund and to be preserved and invested for the benefit of said institution, and the income to be derived therefrom to be paid over annually to the trustees of said university for the general purposes of said institution."

The question upon which the Court of Appeals decided this celebrated suit rested upon the interpretation of the agreement which is here cited. The counsel of the university urged that the conditions imposed upon Mr. Cornell in acquiring the land scrip by which he was obliged to return to the treasury of the State all profits from the same, consti- tuted a part of the contract and that it was a distinctly specified condi- tion, constituting a part of the agreement under which the land was sold to him, and under which condition it would have had to have been sold to any other person; in fact, it was an obligation imposed by the Legislature upon any sale of the land by the comptroller acting with the Land Commissioners of the State. Mr. Cornell was in that case fulfilling a contract made with the State. As interpreted by the Court of Appeals, this condition did not constitute a contract, but the title to the land passed to Mr. Cornell, and he thus became the absolute owner of the land scrip. His profits were to be paid into the treasury of the State, but they were to be paid therein as profits and not as any portion of the purchase price of the scrip; and they were paid as profits of Mr. Cornell and received under that agreement as the property of Cornell University, the income of which was to be paid to it for its general pur- poses and the principal was to constitute the Cornell Endowment Fund. It was, in the view of the court, other than an agency created in behalf of the State; the profits which he had hoped to be able to realize in the future were entirely speculative in character and amount, and were dependent largely upon the judgment with which the lands were located and the times and manner of the sale. The proceeds of the sale of these were, therefore, Mr. Cornell's own gift to the university. All the compensation he sought for his services, his trouble and his responsibilities, great and onerous as they were, was the fact that all this should go to the university.

In 1874, just before Mr. Cornell's death, he transferred to the univer- sity all his right, title and interest in this vast property and the univer-

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sity assumed in his place the execution of all obligations and contracts which Mr. Cornell had undertaken in carrying out his noble and far- seeing purpose.

The construction placed on Mr. Cornell's agreement by the counsel of the university made it a debtor to the State for the entire amount realized from the sale of the lands. An additional point, presented with great learning by the counsel of the university, maintained a dis- tinction in law between the right to "take " and to "hold" property by devise. It was claimed that by the law of mortmain, corporations without special license might "take" the title to real property aliened, subject only to the right of the superior lord, in this case the State, to enter and take the land under the power of forfeiture. The charter of the university provided "that it might hold real and personal property to the value of three million dollars." This position received apparent support from the decisions of the courts of other States and from cer- tain decisions of the United States Supreme Court. It was held, how- ever, by the Court of Appeals, that the early mortmain acts in England bear no resemblance to the tenure by which a citizen of this State holds lands. Here there is no vassal and superior, but the title is absolute in the owner and subject only to the liability to escheat. Although some portions of the mortmain laws of England may have been enforced in other States, no such laws have been enforced in this State. As a large portion of the real estate bequeathed to the university by Mrs. Fiske was situated in other States, it was urged that such real estate could not in its descent be subject to the law of this State, but that the title to real estate is governed by the laws of the State where the real prop- erty is situated. But the court held that the direction in Mrs. Fiske's will to convert her estate into money or available securities operated as an equitable conversion of the estate, and hence no real estate in other States had been devised by her to the university. As the inter- pretation of an act of Congress was involved in the decision of this question, an appeal was taken to the Supreme Court of the United States where Senator George F. Edmunds, one of the ablest constitu- tional lawyers of this country, presented in a plea of great force the position of the university. He claimed that the whole of the moneys derived from the sale of the lands were trust moneys, and belong to a trust fund, and had no connection or relation to the limitation of the amount of property that the university might hold as provided in its charter. The fact that the State provided for other modes of invest-

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Landmarks of Tompkins County, New York : including a history of Cornell University, Part 50

Author: Hewett, Waterman Thomas, 1846-1921; Selkreg, John H Publication date: 1894 Publisher: Syracuse, N.Y. : D. Mason Number of Pages: 1194

Author: Hewett, Waterman Thomas, 1846-1921; Selkreg, John H
Publication date: 1894
Publisher: Syracuse, N.Y. : D. Mason
Number of Pages: 1194