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Future Estates, Charitable Uses, etc.

L. 1909, ch 45

note. Young Men's Christian Association or Young Women's Christian A880ciation as charitable institution: see Ann. Cas. 1912D 427, note. Masorio lodge or body as charitable institution: see Ann. Cas. 1912A 1187, note. Elks lodge or body as charitable institution : see Ann. Cas. 1914C 958, note. Devise or bequest to church as charitable use: see 5 Ann. Cas. 1139, note; 9 Ann. Cas. 1202, note; Ann. Cas. 1914D 451, note.

Gift for benefit of government generally as valid charitable gift: see Ann. Cas. 1914A 1219, note. Gift for public purpose, as distinguished from benevolent, educational or religious purpose, as valid charitable gift: see Ann. Cas. 1914A 1215, note. Gift for reduction of state debt as valid charitable gift: see Ann. Cas. 1914A 1219, note. Gift for reduction of national debt as valid charitable gift: see Ann. Cas. 1914A 1219, note. Gift for municipal purpose as valid charitable gift: see Ann. Cas. 1914A 1217, note. Validity of bequest for support or establishment of free or public schools: see 8 Ann. Cas. 925, note. Gift for highways as valid charitable gift: see Ann. Cas. 1914A 1218, note. Gift for bridges as valid charitable gift: see Ann. Cas. 1912A 1218, note. Gift for publio buildings as valid charitable gift: see Ann. Cas. 1914A 1218, note. Gift for public works as valid charitable gift: see Ann. Cas. 1914A 1218, note. Gift for public parks as valid charitable gift: see Anı. Cas. 1914A 1219, note. Gifts for purchase of lifeboats as valid charitabile gift: see Ann. Cas. 1914A 1219, note.

Power of corporation to act as trustee of charitable trust: see 8 Ann. Cas. 1181, note. Admissibility of parol evidence to identify beneficiaries of chairitable devise or bequest: see Ann. Cas. 1915B 8, note. Extrinsic evidence to establish identity of charitable corporation named as legatee or devisee in will : see 47 L. R. A. (N. S.) 523, note.

Definition of charitable trust.— In order to be valid a charitable trust must have a public utility in its purpose. If the purpose to be attained is personal, private or selfish, it is not a charitable trust; but when the purpose to be accomplished is that of public usefulness unstained by personal, private or selfish considerations, its charitable character insures its validity. Matter of MacDowell, (1916) 217 N. Y. 454, 112 N. E. 177, reversing decree 170 App. Div. 245, 156 N. Y. S. 387, which affirmed 89 Misc. 323, 153 N. Y. S. 653. A bequest to executors in trust to cause the incorporation of a society to control the fund bequeathed and to loan the same in sums of five hundred dollars or less at a time, to honest and deserving Armenians, to help them in their business, the loans to be repaid with interest, and to be made only on business principles, is not within the statute. This contemplated trust, although productive of a certain degree of benevolence, is nevertheless a business enterprise, and not a charitable use. Tanshanjian v. Abbott, (1908) 59 Misc. 642, 112 N. Y. S. 583.

Necessity of ascertainable beneficiary.— It is essential to the validity of every testamentary trust that there shall be a beneficiary either named or capable of being ascertained within the rules of law applicable in such cases. In re Compton, (1911) 72 Misc. 289, 131 N. Y. S. 183, a bequest in the following language was held invalid: “I desire that the sum of $1800 invested in the Lord's work in the care of Miss S. A. Lindenberger (of which I receive the income during my lifetime), shall not be withdrawn from said work at my decease, but shall wholly remain in that work.” See also In re Seymour, (1910) 67 Misc. 347, 124 N. Y. S. 637, wherein a like ruling was made upon a similar bequest.

Designation of trustees.- Individual trustees may be designated by official description, as to the selectmen or other municipal authorities” of a certain parish, county, and state, “or to their successors;" and thus a continuous line of individual trustees may be secured. Matter of Sturgis, (1900) 164 N. Y. 485, 58 N. E. 646, reversing 48 App. Div. 624, 62 N. Y. S. 1148.

Inadequacy of trust fund as affecting validity of trust.— The fact that the fund which a testator or testatrix directs to be devoted to a charitable

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L. 1909, ch. 45

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purpose may be inadequate to carry out the purpose in the precise manner contemplated, does not affect the validity of the trust. Matter of MacDowell, (1916) 217 N. Y. 454, 112 N. E. 177, reversing decree 170 App. Div. 245, 156 N. Y. S. 387, which affirmed 89 Misc. 323, 153 N. Y. S. 653.

Preference to relatives or friends as invalidating trust. If the purpose of a testamentary trust is public, the mere fact that the testator or testatrix intended to give a preference to certain relatives or friends and their descendants, who should be within the object of the trust, does not make it invalid or preclude it from possessing the character of a charitable trust. Matter of MacDowell, (1916) 217 N. Y. 454, 112 N. E. !77, reversing decree 170 App. Div. 245, 156 N. Y. S. 387, which affirmed 89 Misc. 323, 153 N. Y. S. 653.

Charitable trust as affected by requirement of weekly payments by beneficiaries. The charitable character of a testamentary trust is not impaired by the fact that the inmates of the home which a testatrix seeks to create are required to pay board not exceeding seven dollars per week “toward paying the running expenses of the house.” Matter of MacDowell, (1916) 217 N. Y. 454, 112 N. E. 177, reversing decree 170 App. Div. 245, 156 N. Y. S. 387, which affirmed 89 Misc. 323, 153 N. Y. S. 653. See also Schloendorff v. New York Hospital Soc., (1914) 211 N. Y. 125, 105 N. E. 92, Ann. Cas. 1915C 581, 52 L. R. A. (N. S.) 505, affirmed 149 App. Div. 915, 133 N. Y. S. 1143.

Necessity of definiteness of purpose in making trust.— Notwithstanding the effect of the present statute in preventing gifts for religious, educational, charitable or benevolent uses from failing on account of indefiniteness or uncertainty in the designation of the beneficiaries, it is nevertheless necessary for a testator to define his purpose and intention in making a trust sufficiently so that the court at the instance of the attorney-general representing the beneficiaries can by order direct in carrying out the trust duty. Matter of Shattuck, (1908) 193 N. Y. 446, 86 N. E. 455, reversing 118 App. Div. 888, 103 N. Y. S. 520, wherein it appeared that a testatrix devised and bequeathed her residuary estate to her executor in trust, “the rents, profits and income thereof to be expended by him annually and to be paid over to religious, educational or eleemosynary institutions as in his judgment shall seem advisable, not more than $500, however, to be paid to any one such institution in any one year.” The trust thus sought to be established was held to be so indefinite and uncertain in its purposes, as distinguished from its beneficiaries, as to be impossible of administration. The intention of the legislature in passing the Act of 1893, the court said, was to save to the public charitable gifts made in trust to uncertain and indefinite beneficiaries; that gifts for the benefit of private institutiors or individuals were not intended to be included within its provisions, and that inasmuch as it was possible, under the terms of the trust in the instant case, that it might be devoted in whole or in part to private use, the entire gift was invalid.

Testamentary trust to acquire lands for religious purposes in foreign state. - It was held in Mount v. Tuttle, (1906) 183 N. Y. 358, 76 N. E. 873, 2 L. R. A. (N. S.) 428, affirming 99 App. Div. 433, 91 N. Y. S. 195, which affirmed 40 Misc. 456, 82 N. Y. S. 655, that where a testatrix residing in the state of New York bequeathed to the bishop of the Protestant Episcopal church in Utah and Idaho, and to his successor or successors in office, certain sums in trust, to erect therewith at such place, within the limits of his jurisdiction as he or his successors should elect, a church and rectory which should be the property of such Protestant Episcopal jurisdiction, the object of the trust was the acquisition of lands in the state of Utah or in the state of Idaho, and the execution of the trust must depend entirely upon its validity under the laws of the state in which the land was to be acquired and held, or on the competency of the donee, upon whom the title was to be conferred, to take and hold lands within that state.

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Validity of charitable bequest to foreign beneficiary. It was held in Matter of Miller, (1912) 149 App. Div. 113, 133 N. Y, S. 828, that a bequest in trust to be used for free scholarships in an incorporated theological school in France was a legal bequest for a charitable use under the law of New York; that the bequest did not fail because of the fact that prior to the death of the testatrix the so-called Separation Law of France was passed whereby the beneficiary was disestablished and ceased to be a government institution, if in fact it continued to exist under said act as an independent school of theology maintaining scholarship students. Nor did the trust fail because of the fact that the foreign institution might not be entitled to take legal title as trustee under the French law, since equity would not allow a trust to fail for want of a trustee. Under the circumstances the trust fund would be administered by the supreme court and the proceeds transmitted to the foreign beneficiary.

Bequest to unincorporated association. This section relates only to gifts in trust for the purposes therein mentioned; it does not change the rule of law that an unincorporated religious or charitable society is incapable of taking an absolute bequest. Wait v. Society for Political Study, (1910) 68 Misc. 245, 123 N. Y. S. 637; Fralick v. Lyford, (1905) 107 App. Div. 543, 95 N. Y. S. 433, affirmed (1907) 187 N. Y. 524, 79 N. E. 1105. See also în support of the rule that an unincorporated voluntary association or society has no legal entity, and is accordingly incapable of taking a direct bequest to it. Matter of Collier, (1916) 97 Misc. 543, 163 N. Y. S. 402; In re Compton, (1911) 72 Misc. 289, 131 N. Y. S. 183; In re Scott, (1900) 31 Misc. 85, 64 N. Y. S. 577; Catt v. Catt, (1907) 118 App. Div. 742, 103 N. Y. S. 740; In re Wheeler, (1898) 32 App. Div. 183, 52 N. Y. S. 943, affirmed (1900) 161 N. Y. 652, 57 N. E. 1128. See, however, In re Fitzsimons, (1899) 29 Misc. 731, 62 N. Y. S. 1009, which appears to hold that under the present statute a legacy to a religious society is not void by reason of the fact that it is unincorporated. In Matter of Gray, (1913) 81 Misc. 79, 142 N. Y. S. 1067, it was held that a bequest of one-third of a residuary estate to the treasurer, for the time being, of the “Woman's Presbyterian Synodical Board in Aid of Foreign Missions of the Synod of Albany ” which never was incorporated and went out of existence shortly before the will was executed, was invalid, as was also a bequest of one-third of said residuary estate to the treasurer, for the time being, of the “Woman's Presbyterian Synodical Board in Aid of Homes Missions of the Synod of Albany ” which was not incorporated. There was, the court said, no personal bequest or the creation of a trust, and there being no trust created the legacies were not saved by the present section of the statute.

Illustrative cases.— The following charitable bequests in trust have been upheld under the present statute:

A trust for the purpose of founding, erecting and maintaining a “home for the aged.” Matter of Graves, (1902) 171 N. Y. 40, 63 N. E. 787, reversing on other grounds 66 App. Div. 267, 72 N. Y. S. 815; Allen v. Stevens, (1899) 161 N. Y. 122, 55 N. E. 568, reversing judgment 33 App. Div. 485, 54 N. Y. S. 8, which reversed 22 Misc. 158, 49 N. Y. S. 431.

A legacy to endow beds in a hospital. Ely v. Ely, (1914) 163 App. Div. 320, 148 N. Y. S. 691.

A bequest to the treasurer of a hospital in trust “ to be used as she may deem best toward the interest of the hospital. In re Beaver, (1909) 62 Misc. 155, 116 N. Y. S. 424.

A trust fund to any society that assists poor needlewomen, and if no such organization exists, for the benefit of incapacitated sailors and their families. Manley v. Fiske, (1910) 139 App. Div. 665, 124 N. Y. S. 149, modifying judgment 66 Misc. 388, 123 N. Y. S. 129, affirmed (1911) 201 N. Y. 546, 95 N. E. 1133.

A bequest of a specified sum “ to be equally divided between the Indian Missions and Domestic Missions of the United States.” Bowman v. Domestic,

L. 1909, cha 45

Future Estates, Charitable Uses, etc.

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In re

etc., Missionary Soc., (1905) 182 N. Y. 494, 75 N. E. 535, modifying judgment 100 App. Div. 29, 90 N. Y. S. 898.

A bequest to a town in trust for the benefit of the poor of the town. In re Rosquin, (1913) 159 App. Div. 845, 144 N. Y. S. 988.

A bequest to a church for missionary and evangelistic purposes. Spence, (1915) 165 App. Div. 787, 151 N. Y. S. 292.

A direction to trustees to divide the residue of testator's estate among any poor family or families, or any charitable organization or organizations, in the city of Brooklyn, which shall seem to them most deserving of such reward or assistance.” Kelly v. Hoey, (1898) 35 App. Div. 273, 55 N. Y. S. 94.

A trust for the establishment and maintenance of a club room for young men and boys in the city of New York, to be used not only as a social resort, but for social or educational work. Starr v. Selleck, (1911) 145 App. Div. 869, 130 N. Y. S. 693, affirmed (1912) 205 N. Y. 545, 98 N. E. 1116.

A trust to be devoted to sending the children of the poor of New York city for vacation in the summer time. United States Trust Co. v. Chauncey, (1900) 32 Misc. 358, 66 N. Y. S. 563.

A bequest to the rector of a church to be used by him for the relief of the poor of his parish. Matter of Fitzsimons, (1899) 29 Misc. 204, 61 N. Y. S. 485.

A bequest to the “orphanage founded, or to be founded, by the Long Island Baptist Association, under whatever name the same may be organized or incorporated.” Hull v. Pearson, (1899) 36 App. Div. 224, 55 N. Y. S. 324.

A bequest of one-half of the residuary estate of a testatrix to her executors in trust “to be used and devoted by them to the establishment of a school for girls in the town of North Salem.” Butterworth v. Keeler, (1915) 169 App. Div. 136, 154 N. Y. S. 744.

A bequest of a fund to trustees in trust to give the income therefrom “to such charity or charitable institutions as shall be designated by and agreed upon by any three of said trustees.” Utica Trust, etc., Co. v. Thomson, (1914) 87 Misc. 31, 149 N. Y. S. 392.

A bequest to the executors of a testator in trust “to be by them applied in their best judgment and discretion to such charitable and benevolent associations and institutions of learning for the general uses and purposes of such associations and institutions as my said executors may select, and in such sums respectively as they may deem proper.” Matter of Cunningham, (1912) 206 N. Y. 601, 100 N. E. 437, affirming 151 App. Div. 940, 135 N. Y. S. 1107, which affirmed 76 Misc. 120, 136 N. Y. S. 922.

A bequest of the residue of the estate of a testatrix to a trustee in trust “to invest and reinvest the same, and collect the income thereof, and from and out of the principal sum so invested and the income and interest collected as aforesaid, from time to time make such reasonable charitable donations, contributions or gifts, to such persons, corporations, associations or institutions in the town of Guilderland, Albany county, N. Y., as may, in the judgment of my said trustee, be in need and worthy thereof, he having been fully advised of my purposes and inclinations in that respect.” In re Groot, (1916) 173 App. Div. 436, 159 N. Y. S. 1003.

A bequest by a testator of a share of his residuary estate, declaring that it was understood between him and the legatee that the latter was to expend the amount “in charity, both in the Kingdom of Italy and in the city of New York.” Stewart v. Franchetti, (1915) 167 App. Div. 541, 153 N. Y. S. 453, affirming judgment but overruling one point as to validity of trust, Matter of Draper, (1911) 74 Misc. 335, 134 N. Y. S. 236.

A testamentary trust the income of which is to be applied and expended for the “ benefit of such institutions and persons who may be worthy, needy and deserving of the same,” and under which the trustee is authorized to use it for "educational and benevolent purposes, but only in such instances

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as he may be satisfied should receive such aid.” Baptist Home v. Gardner, (1914) 145 N. Y. S. 275; Buel v. Gardner, (1914) 83 Misc. 513, 144 N. Y. S. 945.

A bequest to the “Woman's Graduate Association of Cornell University at Ithaca, N. Y., to be used by said association in aiding and assisting needy young women students at said Cornell University as in the judgment of the officers and directors of said association may seem best and proper.” Sawyer v. Dearstyne, (1912) 139 N. Y. S. 955.

A bequest to trustees with direction to sell and distribute, in the following words: “Shall be distributed to any institution conducted for the benefit of the poor and suffering my executors may in their judgment give to any individual or person who in their judgment selected as poor and in need." In re Davis, (1912) 77 Misc. 72, 137 N. Y. S. 427.

A direction by a testatrix to her executors to expend a specified sum and apply the same from time to time in their discretion to the payment of the expense of Masses for the repose of the souls of the deceased parents of the testatrix. In re Eppig, (1909) 63 Misc. 613, 118 N. Y. S. 683. See also In re Cooney, (1906) 112 App. Div. 659, 98 N. Y. S. 676; In re Zimmerman, (1898) 22 Misc. 411, 50 N. Y. S. 395.

A bequest “in trust forever, the income to be used for the purchase of new books and works of art for the Pickering and White Library and Chime Tower, and care of the same, and for no other purpose whatever," and a bequest in trust, the income each year to be used “ to keep Chime Tower and bells in good condition, and aid in playing said bells, at Sacket's Harbor, N. Y.” Spencer v. DeWitt C. Hay Library Ass'n, (1901) 36 Misc. 393, 73 N. Y. S. 712.

A testamentary trust which gives a preference “ to persons who are elderly or disabled from work, and to persons who are Christians, of good moral character," members of certain specified churches, and who are not addicted to the use of intoxicants or tobacco, nor to attendance at theatrical entertainments.” Matter of Robinson, (1911) 203 N. Y. 380, 96 N. E. 925, 37 L. R. A. (N. S.) 1023, modifying order 145 App. Div. 925, 130 N. Y. S. 259, which modified decree 71 Misc. 87, 129 N. Y. S. 1020.

A testamentary gift by a residuary clause in the following language: I give and bequeath the balance to the cause of charity, to be expended by my executor at such times and in such amounts as he may elect to disperse, to worthy individual cases and to various institutions dedicated to the cause and alleviation of human physical suffering, calling his attention to the dire necessities of inadequately endowed hospitals, or those insufficiently appropriated for by legislative or governmental provision, such indifference and neglect constituting a stain upon justice and human decency of a Christian community, badly saturated with impure luxuries and extravagant excesses. To institutions of this character, dispensing aid and assistance, I commend his earnest attention, but to institutions engaged in the practice of establishing and maintaining foreign missions I earnestly and heartily disapprove of his rendering any financial assistance whatever.” Torrey v. Day, (1913) 81 Misc. 39, 141 N. Y. S. 814.

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III. ADMINISTRATION OF CHARITABLE TRUSTS

General charitable intent essential to application of cy pres doctrine: see 1 Ann. Cas 541, note; Ann. Cas. 1912D 1170 note.

Jurisdiction of Supreme Court over incorporated trust for charitable use.Where a testator devises the residue of his estate, both real and personal, to certain designated trustees for the purpose of maintaining and supporting a public charity, and provides that the trustees may, if necessary to carry out the purposes of the trust, form a corporation and transfer the property

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