
    Isabella M. Manley, Appellant, v. Harrison Grey Fiske and Henry Tyrrell, Individually and as Executors of the Last Will and Testament of Henry Howard Paul, Deceased, Executed October 30, 1905, and Others, Respondents, Impleaded with Maria Louisa Overman and Louis B. Gore, Appellants.
    First Department,
    July 7, 1910.
    Will—trust for charitable uses — when purposes of gift not indefinite — power of Supreme Court to appoint trustee — Attorney-General should not be appointed.
    A will disposing of the residuary estate in the following words: “ I desire my executors to divide the surplus among such American charities as they may think well of, and I would like these sums to be given to any society that assist poor needlewomen (seamstresses) whose toil is so poorly requited. If no such organization exists the money to be divided for the benefit of incapacitated sailors and their families,” creates a valid trust under chapter 701 of the Laws of 1893, as amended by chapter 291 of the Laws of 1901.
    While the beneficiaries are indefinite the purpose of the gift is not indefinite, and so it is saved by the statute
    Although there are no express words creating a trust, a trust is intended, and as no trustees are named, the title vests in the Supreme Court, which may appoint the executors as trustees.
    It is improper to appoint the Attorney-General trustee of such charitable trust, as the said statutes require him to act in another capacity.
    Appeals by the plaintiff, Isabella M. Manley and by the defendants Maria Louisa Overman and another, from so-much of a judgment of the Supreme Court in favor of the defendants, entered.in the office of the clerk of the county of Hew York on the 28th day of March, 1910, upon the decision of the court, rendered after a trial at the Hew York Special Term, as upholds the validity of a charitable bequest contained in the will of Henry Howard Paul.
    The opinion of the Special Term is reported in Manley v. Fiske (66 Mise. Bep. 388).
    
      J. Hampden Dougherty, for the appellants.
    
      Charles E. Lydecker, for the respondents Fiske and Tyrrell.
    
      E. C. Crowley, for the respondent Attorney-General.
   Miller, J.:

' Henry Howard Paul, an American citizen, domiciled in England died on the 9th of December, 1905, leaving personal property in Great Britain and in the State of Hew York. He disposed of the property in Great Britain by what he denominated his English will, which, with the codicil thereto, has been proved in England. He disposed of his property in the State of Hew York, consisting of money on deposit with the Union Trust Company of the city of Hew York, by what lie .denominated an American will, which has been admitted to probate by the surrogate of Hew York county, and letters testamentary have been issued thereon. This action is brought for a construction of the so-called American will, it -being contended that an attempted charitable. bequest: is void. The Special ■ Term sustained the validity of the bequest in question. . We have before us only the judgment roll. The court found, at the request of the-plaintiff, that “-under.the law of England and of the State of Hew York the validity or invalidity of the attempted charitable bequest is to be- determined according to the law of the place where the gift is to take effect.” ' While that is' denominated a conclusion of law so far as the law of England is concernéd, it is a conclusion of fact. The appellants make a point that the bequest contravenes a section of the English Mortmain Act (51-53 Vict. [1888] chap. 42, § 7). That particular section of the act is set forth in the findings of fact. But it is impossible to tell from a single section of a statute dissociated from its context whether it applies to a particular" case, and in view of the finding above quoted, which evidently expressed the theory of both sides to this controversy, we shall pass' that question without further consideration.

The provision of the will' in question is as follows: “ After the ' above legacies are. paid without unnecessary delay, the sum remaining I desire my executors to divide the surplus among such American Charities they may think well of, and I would like these sums to be given to any society that assist poor needlewomen (seamstresses) whose toil is so poorly requited. If no such organization exists the-money, to be divided for the benefit of incapacitated sailors and their families.” The appellants contend that no trust was created or intended and that the bequest is void for indefiniteness.

There can be no doubt that the bequest would be void but for chapter 701 of the Laws of 1893, as amended, by chapter 291 of the Laws of 1901. The appellants contend that the purpose as well as the beneficiaries of the gift are indefinite and that the statute only saved gifts which would otherwise have been void for indefiniteness of beneficiary. That argument would have been well founded if the testator had stopped with the direction that his executors divide “ the surplus among such American charities they may think well of.” But the words which follow, e., “ I would like these sums to be given to any society that assist poor needlewomen (seamstresses) whose toil is so poorly requited,” are equivalent to a command. The primary purpose of the bequest was, then, to assist poor needlewomen. The beneficiaries alone are indefinite, and the case comes directly within the statute.

It is next contended, however, that the statute was intended only to save trusts for Charitable uses, and that no trust was created. It is true that there are no express words creating a trust, as there are no express words of gift; but it is quite plain that a trust was intended. A trust is almost inseparably involved with a gift for charitable uses, and the statute provides for the case of a failure to select a trustee as. well as for the case of indefiniteness of beneficiary. In case no trustee is named the title vests -in the Supreme Court. The case of Bowman v. Domestic & Foreign M. Soc. (182 N. Y. 494) seems to be controlling on this point. In that case the words of the bequest were: “ I give, devise and bequeath the sum of two thousand dollars to be equally divided between the Indian Missions and Domestic Missions of the United S tates in memoriam of the late Mary A. Archer.” It was held that the clause was too indefinite to constr'ue as a direct bequest, but that it could be supported as a trust for charitable purposes under the provisions of the statute of 1893, as amended by the act of 1901, and that the Supreme Court could administer the trust. It might be argued with force that the testa-, tor intended his executors to act as the trustees, but any difficulty on that head is obviated by the appointment of them as trustees.

The appellants rely upon Matter of Shattuck (193 N. Y. 446) and Fralick v. Lyford (107 App. Div. 543; affd., 187 N. Y. 524). In the latter case there was a direct bequest to a society incapable of, taking. In the former case the gift was to the executor in trust to pay the rents, income and profits “ over to religious, educational or eleemosynary institutions as in liis judgment shall seem advisable.” It was assumed that the gift was not void for the wide discretion left to the trustee, and the great uncertainty as to who were to be the beneficiaries; but it was held that the word “ educational” did not necessarily describe a public or charitable institution'; that, therefore, the trustees were not limited to an application of the fund to public charity, and that the case did not come within the statute. Here it must be assumed that the testator intended a valid dis- . position of his property. His object was to assist poor needlewomen, to benefit an indefinite class of persons. He, therefore, intended a public charity. It is not to be supposed that he intended the money to be paid over to unincorporated societies, and of course that could not be permitted. I see no difficulty in the way of upholding this provision as a trust for charitable uses, the Object of it being the assistance of poor needlewomen. That" purpose may be accomplished through the medium of any incorporated society having that for its object. The purpose is sufficiently indicated to enable the court to control the action of the trustees, and it is made the duty of the Attorney-General to see that the trust is properly administered. - This will was evidently drawn by the testator himself. His purpose is reasonably- plain, and I think that it should be .carried out, if any effect whatever is to be given to the statute in question.

It was improper to appoint the Attorney-General as trustee. The statute .contemplates that he shall act in another capacity. The judgment should be modified by striking put the provision appointing the Attorney-General as trustee, and as thus modified affirmed, with costs to all parties who have appeared and submitted briefs on this -appeal payable out of the estate.

■ Ingeaham, P. J., McLaughlin, Clabke and Scott, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to all parties payable out of the estate, Settle order on notice. 
      
      
        Sic. See Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. chap,. 42), §4, subd. 7.—[Rep.
     