In Read v. Williams, 125 N. Y. 561, 26 N. E. 730, 21 Am. St. Rep. 748, it was held that a bequest to such charitable institutions and in such proportions as the executors of the testatrix, by and with the advice of one H., should choose and designate, was void for indefiniteness, because the testatrix had not designated the class of institutions. which should receive her bounty with sufficient certainty, and therefore such a selection would be the bounty of the trustees, and not of the testatrix.

In the Tilden Case, 130 N. Y. 29, 45, 28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487, a direction to executors to apply a certain sum to the use of such charitable, educational, and scientific purposes as in their judgment would be most beneficial to mankind was held invalid for a like reason. It was further said that the power conferred upon the executors was void for indefiniteness and uncertainty in objects and purposes, that the range of selection was unlimited, and that it was not confined to charitable institutions of this state or the United States, but embraced the whole world, and that, therefore, nothing could be more indefinite or uncertain.

In Fairchild v. Edson, 154 N. Y. 199, 48 N. E. 541, 61 Am. St. Rep. 609, the testator bequeathed his estate to his executors with directions to divide the same among such incorporated religious, benevolent, and charitable societies of the city of New York, and in such amounts as should be fixed or appointed by them with the approval of testator's friend, Rev. Dr. Huntington, if living, and it was held that the trust was void for indefiniteness because of failure to designate the beneficiaries as a class with such certainty as to enable the court to execute the trust.

It will, however, be observed that these cases all arose after the overthrow of the Williams Case and before the enactment of the Charitable Uses Act of 1893, that they largely proceed on the ground, not that the trusts were indefinite in their purpose, but that the beneficiaries were not sufficiently ascertained and described, and it was the agitation which followed the Tilden Case that largely influenced the adoption of the Charitable Uses Act. Dammert v. Osborn, 140 N. Y. 43, 35 N. E. 407; Allen v. Stevens, 161 N. Y. 140, 55 N. E. 568.

Following the reinstatement of the doctrine of charitable uses, it was said in Matter of Shattuck, 193 N. Y. 446, '86 N. E. 455, that, notwithstanding that act, a trust may be so indefinite and uncertain in its purpose as to be impossible of administration. It is, however, clear that the court was speaking of the subject of a charitable use rather than the method of its administration. The question involved in that case was whether the bequest was to an educational use within the meaning of the statute, and it was held that it did not definitely appear that it was, because it was capable of being used for private purposes, and, therefore, it could not be upheld as a charitable use.

In Manley v. Fiske, 139 App. Div. 667, 124 N. Y. Supp. 149, it was said arguendo that a direction to divide the residue of an estate among such American charities as the executors might think well of was void for indefiniteness of purpose. It was, however, held that the trust was saved by succeeding words designating a class of persons the testator

out an opinion in 201 N. Y. 546, 95 N. E. 1133, so that it is impossible to determine the views of the Court of Appeals upon the subject discussed in the court below.

A reference now to the English cases and those in our own state since the enactment of the Charitable Uses Act will be useful, inasmuch as it is settled law that the effect of that statute was to restore the ancient doctrine of charitable uses. The English Chancery Reports contain many cases upon this subject, but the collation of a few of these decisions will show the general trend of that court in dealing with the question.

In the reign of Charles II a testator left a bequest to the parish of Great Creaton, and the Master of the Rolls, being in doubt, asked the opinion of the judges, and on their advice held it a valid bequest to charitable uses. West v. Knights, Chancery Cases, 134.

Following this decision, and in the year 1790, a bequest of the residue of an estate to be laid out for charitable and other pious and good uses in the discretion of the trustees was held a valid trust for such charitable uses. Atty. Gen. v. College of William & Mary, 1 Ves. Jr. 243. In 1802 a bequest for such purposes as the executors might think most conducive to the good of the county of Westmoreland, and especially the province of Lowther, was held a valid bequest for like reaFor the purpose of executing this charity the court referred it to a master to devise and report a scheme for the same. Atty. Gen. v. Earl, 1 Simons, 105.

In Legge v. Asgill, Turner & Russell, 265, note, it was held that a direction to have the residue of an estate which might remain given in charity was a valid and effective bequest for that purpose.

In Nightingale v. Goulbourn, 5 Hare, 484, a bequest to the Chancellor of the Exchequer to be appropriated for the benefit and advantage of Great Britain was held a good gift to charitable uses.

In Whicker v. Hume, 7 House of Lords Cases, 123, 154, a bequest to trustees to be applied by them according to their discretion for the advancement and propagation of education and learning all over the world was held a valid trust to charitable uses and that it was not void for uncertainty.

So a bequest to be laid out in the service of my Lord and Master and, I trust, my Redeemer, was held in the High Court of Chancery in Ireland to be a good gift to charitable uses. It was said in this case that, while Ireland had no statute of charitable uses similar to that of Elizabeth, the English system had been adopted, and if the will gave the trustees discretion the court would not interfere with the same; otherwise, it would appoint a master to settle a scheme for its execution. Powerscourt v. Powerscourt, 1 Malloy (Irish Chancery) 616.

But one of the most interesting and instructive cases to be found on this subject arose in 1802, and is that of Moggridge v. Thackwell, 7 Vesey, 36, where the testatrix gave her residuary personal estate to her executor, desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen who have large families and good characters. Lord Thurlow devised a scheme for the execution of this charity, which was affirmed by Lord Elden, who held that the trust was sufficiently definite to be executed by the court.

The Lord Chancellor cites in his opinion many cases of indefinite trusts that have been enforced as charitable uses, and as to the method of execution concludes from an examination of all the authorities that where no trustee was mentioned, but there was a general and indefinite gift to charity, it would be disposed of by the king as parens patriæ and constitutional trustee under his sign manual, which, being filed in chancery, would be enforced by a decree of that court; but where the execution was to be by a trustee, and a general purpose was pointed out, the court would take upon itself the full administration of the trust and * dispose of the same upon a scheme reported by the master. The Lord Chancellor further says in the course of his opinion:

"That if the testator has manifested a general intention to give to charity, the failure of the particular mode in which the charity is to be effectuated shall not destroy the charity, but, if the substantial intention is charity, the law will substitute another mode of devoting the property to charitable purposes, though the formal intention as to the mode cannot be accomplished. All the cases prove that where the substantial intention is charity, though the mode by which it is to be executed fails by accident or other circumstances, the court will find some means of effectuating that general intention."

It is well to note in this connection that the power which the Lord Chancellor thus refers to was expressly conferred upon the Supreme Court by amendment to the Charitable Uses Act in 1901, which provided that, when it was impossible to carry out the scheme of the testator, the court might substitute therefor such a scheme as in its judgment would most effectually accomplish the general purpose of the tes

tator.

The above cases well illustrate the extent to which the Court of Chancery has gone in England in enforcing indefinite trusts for charitable uses. The decisions of our own courts since the statute of 1893 seem to be substantially in accord with those in England made under the ancient doctrine of charitable uses. Thus in Kelly v. Hoey, 35 App. Div. 273, 55 N. Y. Supp. 94, it was held that a direction to divide the residue of an estate among any poor families or any charitable organization in the city of Brooklyn which should seem to the executors most deserving of assistance was valid and enforceable as a gift to charitable uses.

In Matter of Fitzsimons, 29 Misc. Rep. 205, 61 N. Y. Supp. 485, a bequest to the pastor of a Roman Catholic church to be used by him in aid of a society in his church, designed to assist the poor, was sustained. as a trust for a charitable use in supporting the poor of said parish.

In Buell v. Gardner, 83 Misc. Rep. 513, 144 N. Y. Supp. 945, a bequest of the residue of an estate to the executor in trust to apply and expend the net income for the benefit of such institutions and persons as may be worthy, needy, and deserving of the same was held to be valid for like reasons.

In the case of Bowman v. Domestic & Foreign Missionary Society, 182 N. Y. 494, 75 N. E. 535, where a bequest had been made to missionary societies that had no existence, it was held that it was invalid as a direct bequest to beneficiaries, but, nevertheless, would be supported as a valid charitable use for missionary purposes, and the same

would be administered by the court through the instrumentality of a trustee to be appointed. In the Robinson Case, 203 N. Y. 380, 96 N. E. 925, 37 L. R. A. (N. S.) 1023, a bequest to provide shelter, necessaries of life, education, and other financial aid as might be fit and proper to such persons as the trustees might select, was upheld as a valid charitable use; and in the Cunningham Case, 206 N. Y. 601, 100 N. E. 437, a bequest to be applied to such charitable and benevolent associations and institutions of learning as the executors might select was sustained for like reasons.

The Charitable Uses Act validates gifts to religious, educational, charitable, or benevolent uses, and all that is necessary to support a gift under this statute to charitable uses it that it shall be for one of the above purposes and shall be capable of enforcement by the court at the instance of the Attorney General. Matter of Shattuck, 193 N. Y. 446, 451, 86 N. E. 455; Matter of Robinson, 203 N. Y. 380, 389, 96 N. E. 925, 37 L. R. A. (N. S.) 1023; Matter of Cunningham, 206 N. Y. 601, 605, 100 N. E. 437.

Coming, now, to the present bequest, the language is:

"To such charity or charitable institutions as shall be designated by and agreed upon by any three of said trustees."

The statute, it will be seen, differentiates to some extent between religious, educational, charitable and benevolent uses, and if a bequest for missionary uses, as held in the Bowman Case, or for shelter, necessaries of life and education, as held in the Robinson Case, or for charitable and benevolent associations and institutions of learning, as held in the Cunningham Case, are all sufficiently definite to find support in the statute, it is difficult to see how a trust to charity or charitable institutions is indefinite or uncertain as to its purpose. The word "charity" in its popular sense means whatever is bestowed gratuitously on the needy or suffering for their relief, and includes charitable institutions and gifts to create and support the same. A "charitable institution" is defined to be one for the relief of a certain class of persons, either by alms, education, or care. It seems to me that these words were used by the testatrix in their popular sense, and that her intention was that the property, after the death of the life beneficiary, should be devoted to such uses as would furnish aid and assistance to the poor and needy, and thus be for the general benefit of all. Thus construed, there can be nothing indefinite as to the purpose of the trust, especially as the statute expressly authorizes gifts to charity as contradistinguished from gifts to religious, educational, or benevolent uses.

[5] It is urged that it is quite possible to comply with the terms of the will by devoting the fund to private charities and thus remove the case from the protection of the statute. While this may be true, it is very evident that the testatrix had in mind public, as contradistinguished from private, charities. Charitable institutions are not, as a rule, formed for private charities, and the coupling by the testatrix of the words "charity" and "charitable institutions" shows that she intended to take the fund from her collateral relatives and have it ap

plied to the general relief of mankind. But, granting that the words are susceptible of the meaning claimed, it is nevertheless the duty of the court to adopt such construction as sustains the trust and devotes the fund to purposes permitted by the law. Matter of Robinson, 203 N. Y. 380, 388, 96 N. E. 925, 37 L. R. A. (N. S.) 1023; Buell v. Gardner, 83 Misc. Rep. 521, 144 N. Y. Supp. 945.

The Charitable Uses Act was passed for a most beneficent purpose, and it is the duty of the court to give a liberal construction to cases arising under its provisions, and to hold that the case was not brought within the terms of the act would completely nullify the beneficent. purpose of the testatrix, and would, as a distinguished jurist once said, deny the statute that practical effect which would make it operative to save gifts to charitable uses. I therefore conclude that the purpose of this trust is sufficiently defined, and that there is nothing to prevent the court carrying out the same, especially as the court has power to carry out all trusts which were enforceable according to the ancient doctrine of charitable uses, and to that end is now clothed by statute with power to substitute schemes for the same when that of the testator fails. Allen v. Stevens, 161 N. Y. 123, 141, 142, 55 N. E. 568; Matter of Griffin, 167 N. Y. 81, 60 N. E. 284; Matter of ' Cunningham, 206 N. Y. 607, 100 N. E. 437. It follows that the bequest in question is valid as a gift in trust for charitable uses.

[6, 7] The next question which arises is whether, under the terms of the will, there was an equitable conversion of the real estate into personal property. Upon this subject the rule is well settled that equitable conversion results from an imperative power of sale, and that such power of sale may be express or may be implied because of its necessity to carry out the terms of the will. Salisbury v. Slade, 160 N. Y. 278, 288, 54 N. E. 741; Harris v. Achilles, 129 App. Div. 848, 851, 114 N. Y. Supp. 855; Russell v. Hilton, 37 Misc. Rep. 645, 76 N. Y. Supp. 233; Webb v. Sweet, 187 N. Y. 172, 79 N. E. 1024; Recht v. Herschman Co., 139 App. Div. 300, 123 N. Y. Supp. 932; Cahill v. Russell, 140 N. Y. 402, 408, 35 N. E. 664; Mendel v. Levis, 40 Misc. Rep. 271, 273, 81 N. Y. Supp. 965; Kelly v. Hoey, 35 App. Div. 276, 277, 55 N. Y. Supp. 94; Hood v. Hood, 85 N. Y. 561. And in such cases the property is all distributed as personal estate. Russell v. Hilton, 80 App. Div. 180, 186, 80 N. Y. Supp. 563; Weintraub v. Siegel, 133 App. Div. 681, 118 N. Y. Supp. 261; Fraser v. U. P. Church, 124 N. Y. 479, 26 N. E. 1034.

The evidence shows that the real estate of the testatrix was incapable of division, and this fact she must be presumed to have known, and to have drawn her will with that understanding. Turning, now, to the will, we find that the testatrix directs all of the rest, residue, and remainder of her property, both real and personal, to be divided into four equal parts. It is impossible to conceive how this could be done without a sale of the property. In fact, a similar provision was held most potential in showing an equitable conversion in the case of Salisbury v. Slade, 160 N. Y. 278, 54 N. E. 741. In this respect the case differs materially from Matter of Tatum, 61 App. Div. 513, 70 N. Y. Supp.