The controlling question in these cases arises on pleas of res judicata. The essential facts are as follows:
On October 6, 1884, Daniel B. Fayerweather, a citizen and resident of the state of New York, made a will, by the 9th article of which he gave to twenty colleges bequests amounting in the aggregate to $2,100,000. By the 10th article he gave the residuary estate to his executors, as trustees, directing them to divide it equally among the twenty colleges named in the 9th article. On the same day he signed the following statement:
'This certifies that I have executed my will of this date, having been advised by my counsel of the provision and restrictions of the law of this state relative to benevolent corporations. I trust my heirs will permit the provision of this my will to be carried into effect.'
At that time, by chap. 360, Laws of 1860, of the state of New York, a testator having husband, wife, child, or parent was forbidden to give to literary or benevolent institutions more than one half of his estate. On December 13, 1884, the testator made a first codicil to his will, by which he revoked the 10th article, and gave the residuary of his estate absolutely to his executors. In other respects the will was ratified. At or about the same time a paper, bearing date December 11, 1884, headed 'Private Memorandum,' was signed by him, which reads as follows:
'I have made Messrs. Bulkley and Ritch 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 that 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.'
By subsequent codicils minor changes were made, and Henry B. Vaughan was added as executor. The testator died on November 15, 1890, leaving a widow and three nieces, his only heirs at law and next of kin. On the day of his death he executed a codicil, which was mainly a confirmation of the provisions of the will and prior codicils.
Mr. Fayerweather's estate amounted at the date of the will to about three millions of dollars, and at the time of his death to from five to six millions of dollars, mainly in personal property.
While by the articles in the will, prior to the 9th, he had made provision for his widow and also bequests to his three nieces, yet obviously his purpose was to give the bulk of his estate to the several colleges named, and to avoid the restraining effect of the New York statute. After the death of Mr. Fayerweather the will and codicils were propounded for probate, to which the widow and nieces filed objections. A hearing was had before the surrogate, and on February 25, 1891, he entered an order admitting the will to probate, and leaving the contest of the codicils to continue. On February 24, 1891, the three executors, residuary legatees, made a deed of gift, which reads:
'Know all men by these presents, That we, Justus L. Bulkley, Thomas G. Ritch, and Henry 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 New York, deceased, prompted by our determination that we will not retain for our own use any part of the residuary estate left to us by his will, and by the desire to make such disposition of his said residuary estate as in our judgment will best honor his memory, do dispose of so much of the same as shall remain after the payment of all lawful fees, expenses, and charges as follows:
'First, We reserve the power to make, and we retain the right to assent to, any enlargement of the $15,000 a year by the will left to Mrs. Fayerweather, which she may desire.
'Second, We reserve the power to make, and we retain the right to assent to, any enlargement of the provisions made by the will for Mrs. Mary W. Achter and Mrs. Emma S. Drury, in case we shall be satisfied that such enlargement would not be against the wishes of Mr. Fayerweather.
'Third, We give to Lucy J. Beardsley, wife of Morris B. Beardsley, $100,000.
'We do this because of Mr. Fayerweather's letter written to Mr. Vaughan and Mr. F. B. Myrick. If accepted, this gift is in discharge of any claim under that letter.'
Then, after making gifts of several sums to individuals, hospitals, and colleges (some being those named in the will of Mr. Fayerweather, and others not so mentioned), the deed closes with these words: