
    Margaret Ruppel, App’lt, v. Mary E. Schlegel, Ex’rx, et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    1 Wills—Action to construe.
    An action for the construction of doubtful provisions in a will cannot be maintained by one who is not a beneficiary, executor or trustee. The fact that he may possibly in his life-time, if the provision is declared void, enjoy a portion of the property thereby devised, is not sufficient.
    j}. Same—Construction.
    The will gave the residue after the widow’s death to a Roman Catholic Church, “ under the following ordination,” that masses be said each year and a portion used for poor scholars and for starting a newspaper. Field, that no trust was created; but that there was an absolute gift to the church.
    Appeal from judgment in favor of the defendants, entered on decision of the court without a jury.
    Action to obtain construction of the will of Adam Schlegel, deceased, and particularly to declare void the -fifth paragraph thereof.
    Plaintiff claimed the right to maintain the action on the ground that if said paragraph was declared void, she might possibly in. her lifetime enjoy in possession a portion of the property therein sought to be devised.
    On the application for probate of the will the surrogate delivered the following opinion:
    Tuthill, S. The The will was properly executed according to all the formal requirements of the statute, and the testator appears to have been of sound and disposing mind and memory, and not under restraint.
    The real and personal estate is all given to the widow for life, and on her death it is disposed of by the fifth clause of the will, as follows:
    “ 5th. After the death of my said wife, Mary Elizabeth Schlegel, all the rest, residue and remainder of the estate by her left, I give and bequeath to the Eoman Catholic Church of the Most Holy Trinity, in Montrose avenue, Brooklyn, E. D., but under the following ordination; A. That in each and every year one high mass .shall be celebrated for my poor soul, and also, after the decease of my said wife, one high mass shall be celebrated every year for the soul of my wife. B. And a part of the said estate shall be used for to pay for poor students, intending to become Catholic priest or Catholic teacher. C. And a part of said estate I ordain shall be used for starting a newspaper for the interest of the Catholic people.”
    It is contended that if the 5th clause be valid, the church must, under chap. 360 of Laws of 1860, be restricted to one-half the «state.
    The value of. the real estate does not appear from the evidence, but it does appear that there are no debts of any account, and that the personal estate is about $3,000, and there is considerable real estate.
    
      The widow was born January 14,1828, so that at her husband’s death, taking her age at her nearest birthday to be fifty-eight, the gross value of her life estate was $44 out of every $100 of the estate. The will gives to her a life estate and the remainder to the church.
    It appears then that the value of that part which is given to the widow, is less than one-half of the decedent’s estate. And it follows that more than one-half the estate is given to the church; and whatever shall pass under the said fifth clause, must be reduced to one-half the estate; the value of the estate to be ascertained, at the date of the death of the testator, by deducting the debts, if any, and the value of the widow’s dower, and whatever should be set off to the widow by the appraisers under the statute.
    The residue of the estate, after the church has had what it is entitled to, under said fifth clause, and after paying the debts and the expenses of settling the estate, goes to the heirs-at-law and next of kin as intestate property.
    But at the widow’s death the church will take the whole, if it does not exceed what was one-half the estate at decedent’s death, with interest since then.
    It is contended that the said fifth clause attempts to create an active express trust, the church to be trustee and the decedent and his wife for all coming time to be cestuis que trust, and beneficiaries ; that such a trust is unlawful.
    But there is no trust created here. The gift is absolute to the church.
    The language does not, by its terms, create a trust, and there are no beneficiaries, such as the law recognizes, in whom the equitable title can vest Where the testator has not used the language ordinarily used for the declaration of a trust, we cannot impute to him intention of creating a trust, for the sake of condemning the trust. .
    The word “ ordination ” has ho specific legal meaning, but I think we may ascertain the testator’s meaning without doing violence to any established-rules of interpretation.
    I think the testator intended the church should take absolutely, and was trusting to the gratitude and generosity of the church to say the masses, and do something for the class of students named and something toward establishing a newspaper.
    The word “ ordination ’’ has something of a peremptory look, but his not specifying any sum of money or any particular part of the estate, either to go to the students or to the newspaper, looks as if the testator was only intending to make suggestions.
    The testator knew it would not cost the church anything to say the masses, and so the church was not directed to use any part of the estate for that purpose.
    He knew that when he said a part of his estate should be used to pay for poor students, he was not directing one-tenth nor nine-tenths of his estate, to be used for that purpose. And the same may be said as to the newspaper.
    He could have had no other intelligent purpose in the use of such language, except that of suggesting his own wishes to the church in a general way and then leaving it to the gratitude and good judgment of the church to carry out his wishes.
    There was nothing strange in the testator anticipating that the church would be willing to comply with his wishes; nor any impropriety in the church accepting the property, with such intention.
    Churches by statute can use their property for pious purposes. The saying of masses is a pious act.
    The court of appeals in Gilman v. McArdle, 99 N. Y., 451, recognized the principle that one could contract to purchase masses, and Judge Cullen in the Holland case, sustained a residuary devise to be expended in masses.
    The helping of poor students was held in Rainey v. Laing, 58 Barb., 453, to be a pious use.
    The sustaining of a religious newspaper is an equally pious use; and the starting of a newspaper by a church for the interest of the Catholic people is not necessarily any other than a pious act.
    But if the term “ upon the following ordination” were interpreted to mean the same as “ for the following purposes,” it would be quite similar to the case of Rainey v. Laing. In that case by the 5th clause the testator gave the residue of his estate to the said general synod to be applied to the support and education of pious indigent young men preparing for the gospel ministery in that church. Held: no trust created and that the fee vested absolutely in the synod.
    Still, if this word “ordination" is read as “condition,”'the purport and sense is not changed or altered. At all events it cannot possibly be construed as a condition which would prevent the vesting of the title in the church; it would be only a condition subsequent, and the question of the effect of non-compliance with it can only arise after such non-compliance has happened.
    The costs of proponent, including stenographer’s fees, should be paid out of the estate.
    The following decision was rendered at special term by Pratt, J.:
    Irrespective of the question whether the plaintiff has standing in court to prosecute this action, I think the defendants must' have judgment.
    There is no trust contained in the 5th clause of the will, but the property is given absolutely to the church upon a condition subsequent annexed to the gift.
    There are no beneficiaries and hence no one interested or to become interested in the equitable title.
    No sufficient language is used to create a trust.
    What is said under the term “ ordination ” is a mere indefinite request and at most is a condition subsequent, and will not prevent a vesting of the title. The surrogate has said in his opinion .all that is necessary upon this subject.
    Judgment for defendants. Costs of both to be paid out of the estate.
    
      Daniel Nemirs, for app’lt; Thomas Young, for resp’ts.
   Dykman, J.

The judgment from which this appeal is taken is right, and should be affirmed.

Courts of equity entertain jurisdiction over actions for the construction of doubtful provisions in last wills and testaments, .in behalf of beneficiaries, executors and trustees, but the plaintiff occupies no such position or relation.

If it be our duty to examine the merits, we concur in the reasons assigned by the surrogate and the court at special term.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs ; Pratt, J., not sitting.  