
    Utica Trust & Deposit Company, as Administrator, etc., Plaintiff, v. Julia Teller Thomson et al., Defendants.
    (Supreme Court, Oneida Equity Term,
    September, 1914.)
    Wills — action for construction of — directions as to rest, residue and remainder of property real and personal — lapsing of legacies — when concurrent jurisdiction of Supreme Court and Surrogate’s Court exercised — accounting.
    A bequest “to such charity or charitable institutions as shall be designated by and agreed upon by any three of said trustees ” is valid as a gift in trust for charitable uses.
    Where a testatrix, whose real estate was incapable of division, directs all the rest, residue and remainder of her property, both real and personal, to be divided into four equal parts, and throughout the will, in speaking of the shares into which the estate was to be divided and held in trust, designates such shares as “ the funds in the hands of the trustees ” which are to be invested and the income paid over as directed, and the language and scheme of the will create an implied and impérative power of sale to carry out its provisions, there is. an equitable conversion of the real estate into personalty.
    Where legatees who were not descendants of testatrix predecease her, the legacies to them lapse and the amount thereof becomes unbequeathed assets of the testatrix distributable among her next of kin.
    The failure of the precedent estate in the one-fourth which was directed to be held in trust for the nephew and sister of testatrix during their respective lives, held, not to affect the. ultimate gift thereof to the “American Bible Society.”
    Testatrix having died leaving no relatives nearer than first cousins, none beyond that degree of relationship are entitled to participate in the unbequeathed assets.
    Where all the parties to an action brought in the Supreme Court for the construction of a will and for the judicial settlement of the accounts of plaintiff, as administratrix with the will annexed, join in asking that the concurrent jurisdiction of the court with the Surrogate’s Court in the premises be exercised, and the court having, already determined practically all the questions tiat would arise on an accounting before the surrogate, the court will grant full relief in the action and not relegate the parties to the Surrogate’s Court.
    Action for the construction of a will and for the judicial settlement of the accounts of plaintiff as administrator with the will annexed of the same.
    Cookingham & Cookingham, for plaintiff.
    Josiah Perry, for defendant Lillian M. Bliss.
    Dunmore & Ferris, for defendant Emily Head.
    Harris & Towne, for defendant American Bible Society.
    E. W. Holt, for defendant Lizzie F. Simmons.
    B. H. Johnson, for defendants Elliott Simmons et al.
    
      George E. Dennison, for defendants Lillian Fisher and Walter Crandall.
    Wm. E. Seavey, for defendants Ina Lewis et al.
    L. M. Newton, for defendants Julia Teller Thomson.
    Henry E. Newell, for defendants Denison et al., and guardian ad litem for Georgia Thomson Butler, an infant defendant.
   Emerson, J.

One Mary Thomson died in the city of Utica on or about June 24,1912, having no relatives nearer than first cousins, and leaving an estate consisting of personal property amounting to about $13,000, and real estate of the value of about $1,300. She left a last will and testament which was duly executed by her on March 20, 1883, whereby, after a bequest to William R. Edwards and another bequest to Dr. A. R. Simmons, she disposed of the residue of her estate as follows:

“Fourth. All the rest, residue and remainder of my property both real and personal I direct to be divided into four (4) equal parts.
“ Two (2) parts thereof I hereby give, devise and bequeath unto my dear friend Miss H. E. DeLancy of Norwich, Conn.
One (1) part thereof I hereby give, devise and bequeath unto John W. Wood of Marcy, N. Y., as Trustee for the benefit of my nephew Arthur Edward Thomson, son of my brother Edward Thomson until he, said Arthur Edward Thomson shall become twenty-one (21) years of age. The said Trustee to invest the funds in Ms hands under said trust and to pay the income therefrom to or for the benefit of my said nephew Arthur Edward Thomson during his minority in such manner as said Trustee in his judgment shall deem for the best interests of said minor. When said Arthur Edward Thomson shall become twenty-one (21) years of age, I hereby give, grant, devise and bequeath unto him the principal sum in the hands of such Trustee- and said Trusteeship shall then terminate.
“Fifth. In case my said nephew Arthur Edward Thomson shall die before reaching the age of twenty-one (21) years then and in that case, I hereby give, devise and bequeath the property last above willed to him to my dear friend Miss H. E. DeLancy of Norwich, Conn.
“Sixth. The other one part thereof I hereby give, devise and bequeath unto John W. Wood of Marcy, N. Y., as Trustee for the benefit of my said nephew Arthur Edward Thomson during his, the said Arthur Edward Thomson’s natural life. The said Trustee to invest the funds in his hands under this trust and to pay the income therefrom to or for the benefit of my said nephew Arthur Edward Thomson during his natural life, in such manner as said Trustee in his judgment shall deem for the best interests of said Arthur Edward Thomson. At the death of my said nephew Arthur Edward Thomson I hereby give, devise and bequeath the one part lastly above willed to him, to Dr. L. A. Tourtellot and Mrs. John Gr. Brown of Utica, N. Y., Dr. A. R. Simmons of New Hartford, N. Y., and Miss H. E. DeLancy of Norwich, Ct., to be held in trust by them and their successors and the income therefrom to be given yearly to such charity or charitable institutions as shall be designated by and agreed upon by any three of said Trustees. I do hereby authorize, empower and direct said trustees and their successors to fill any vacancy occurring among said trustees. Such vacancy shall be filled within one month from the time when it occurs. No person shall be deemed to have been elected to fill any vacancy unless he or she shall receive a majority of the votes of such Trustees as are then living.”

On March 28, 1888, she duly executed a codicil to said will as follows:

I hereby revoke so much of Section Fourth of my said last will and testament, which is dated March 20th, 1883, as gives my nephew Arthur Edward Thomson the one-fourth part of my estate as therein provided. In place thereof I hereby give and bequeath said one-fourth part of my said estate unto Thomas Jefferson Griffith and Arthur R. Simmons of Utica, N. Y., as Trustees and in trust nevertheless for the following uses and purposes. To safely invest the same and to pay over the net annual income thereof unto my nephew Arthur Edward Thomson during his natural life. At his death to pay said income unto my sister Mrs. Eliza T. Stryker during her natural, life. At the death of said Mrs. Eliza T. Stryker I give and bequeath said one-fourth part of my estate to the American Bible Society.”

Said testatrix, in and by said will, nominated and appointed Mrs. John G. Brown, Dr. L. A. Tourtellot and James S. Sherman executors of the same. After her decease said will and codicil were duly probated and said Sherman alone qualified as such executor, Mrs. John G. Brown having renounced the appointment and Dr. Tourtellot having predeceased the testatrix. Thereafter said James S. Sherman died and the Utica Trust and Deposit Company, plaintiff, was duly appointed administrator with the will annexed in his place and stead. The executrix of said deceased executor has duly accounted for his acts as such executor and paid over to the plaintiff the estate in his hands at the time of his decease and the same is now held for distribution as directed by the court.

The plaintiff asks the instruction of the court as to the validity of the trust set forth in the sixth clause of the will and that, after it shall be determined' who is entitled to take under said will, the accounts of plaintiff be judicially settled and determined and distribution of the estate directed according to the rights of the parties.

The first and most important question involved in the case is as to the validity of said trust. It is conceded that, considered merely as an express trust, it would be invalid both at common law and under our statutes because of its indefiniteness and the uncertainty of the beneficiaries, as it is one of the first postulates of the common law that a trust without a beneficiary so named or designated that they can claim the enforcement of the trust is invalid. Nor does a power in the trustees to select the beneficiary obviate such objection unless the persons or corporations from which such selection is to be made are so identified that a court of equity would have power to enforce the execution of the trust. Holland v. Alcock, 108 N. Y. 312; Fosdick v. Town of Hempstead, 125 id. 581, 591; Tilden v. Greene, 130 id. 29, 45.

But the question remains to be considered whether this clause creates a valid trust for charitable uses under the present statutory law of our state. The rise and development of the law of charitable uses furnishes a most interesting chapter in the history of our equity jurisprudence. Its purpose was to obviate the strict rule of the common law which condemned trusts unless the beneficiaries were so named or identified that they would have a standing in court to enforce the same, and it existed in England as early as the Norman conquest and continued down to the time of the American Revolution. In such cases the Court of Chancery, upon motion of the attorney-general or of the interested parties, assumed jurisdiction of the trust and directed a distribution of the charity as nearly as possible in accordance with the wishes of the testator. To that end a master would be appointed to devise a scheme for such administration and thus was brought into operation what was known as the cy pres doctrine, whereby the administration of the charity was carried out with as close approximation to the scheme of the testator as was reasonably practicable.

This doctrine of charitable uses was the subject of more or -less legislation by parliament which finally, by statute (43 Eliz. ch. 4), known as the Statute of Charitable Uses, declared and defined the subjects for such uses and provided for the execution of the same. This statute of Elizabeth was repealed in our state upon its organization by act of 1788 and it was long a mooted question in our courts whether, because of such repeal,- the doctrine of charitable uses was ever engrafted into the jurisprudence of this state. Judges of great learning and ability differed upon the subject, some holding that it existed before the Statute of Elizabeth, the purpose of that statute being for its regulation only and, therefore, such repeal left the doctrine in full force and effect. This view led to the decision of Williams v. Williams, 8 N. Y. 525, which held that the law of charitable uses, as it existed in England prior to the Revolution, was in full force and effect in this state.

On the contrary it was contended that such a law was contrary to the purpose of our statutes, which was to regulate and administer charities through regular organized corporations and, therefore, the repeal of the Statute of Elizabeth showed an intention to abrogate the entire doctrine of charitable uses. This latter view finally prevailed and eventually resulted in the decision of Holmes v. Mead, 52 N. Y. 332, which overruled the Williams case and decided that the doctrine of charitable uses, as known in England prior to the American Revolution, had no place in our law. This rule was thereafter steadily adhered to, though the courts were many times tempted to open the subject anew for further discussion, and this continued to be the law of the state down to the enactment of the statute known as the Charitable Uses Act in the year 1893.

It is well to bear in mind the history of the law of charitable uses in order to understand the many decisions, which otherwise might seem to be conflicting, which have been made upon the subject of this charity.

The Charitable Uses Act of 1893 provided that no gift, grant, bequest or devise to religious, educational, charitable or benevolent uses, which should be in other respects valid, should be deemed invalid because of the indefiniteness or uncertainty of the persons designated as beneficiaries thereunder in the instrument creating the same. That if a trustee was named the legal title should vest in such trustee, otherwise in the Supreme Court. It was further provided that the Supreme Court should have control over all such gifts, grants and bequests and that the attorney-general should represent the beneficiaries in all such cases, and it was made his duty to enforce such trusts by proper proceedings in court. Laws of 1893, chap. 701.

This statute was construed by the Court of Appeals in Allen v. Stevens, 161 N. Y. 122, and it was held that it operated to revive the ancient doctrine of charitable uses and to restore to the court all the power formerly exercised by a Court of Chancery in the enforcement of the same and, as by the ancient law such charitable uses were exempt from the operation of the statute against perpetuities, the same exemption resulted from the statute of 1893. See also Matter of Griffin, 167 N. Y. 80, 81.

Following the decision in Allen v. Stevens, the statute was further amended by materially increasing the power of the court- in dealing with such indefinite trusts. This amendment was made by chapter 291, Laws of 1901, and was substantially re-enacted in the year 1909 in the Personal Property Law (§ 12), and Real Property Law (§ 113).

The statute, therefore, which was in force at the death of the testatrix, reads as follows:

“1. No gift, grant, or bequest to religious, educational, charitable, or benevolent uses, which shall in other respects be valid under the laws of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, or bequest there is a trustee named to execute the same, the legal title to the property given, granted, or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee then the title to such property shall vest in the supreme court.
2. The supreme court shall have control over gifts, grants and bequests in all cases provided for by subdivision one of this section, and, whenever it shall appear to the court that circumstances have so changed since the execution of an instrument containing a gift, grant or bequest to religious, educational, charitable or benevolent uses as to render impracticable or impossible a literal compliance with the terms of such instrument, the court may, upon the application of the trustee or of the person or corporation having the custody of the property, and upon such notice as the court shall direct, make an order directing that such gift,, grant or bequest shall be administered or expended in such manner as in the judgment of the court will most effectually accomplish the general purpose of the instrument, without regard to and free from any specific restriction, limitation or direction contained therein; provided, however, that no such order shall be made without the consent of the donor or grantor of the property, if he be living. (Subd. thus amended by L. 1909, ch. 144, in effect April 3, 1909.)
“ 3. The attorney-general shall represent the beneficiaries in all such cases, and it shall be his duty to enforce . such trusts by proper proceedings in the courts. ’ ’

It is, therefore, clear that, so far as the indefiniteness or uncertainty of the beneficiaries is concerned, the trust in question is saved from condemnation by the Statute of Charitable Uses. But it is urged that, aside from the indefiniteness of beneficiaries, the trust itself is so indefinite and uncertain as to its purpose that it is incapable of enforcement.

In Reed v. Williams, 125 N. Y. 561, it was held that a. bequest to such charitable institutions in such proportions as the executor of the testatrix made, by and with the advice of one he 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, 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, 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, the 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; Allen v. Stevens, 161 id. 140.

Following the reinstatement of the doctrine of Charitable Uses it was said in Matter of Shattuck, 193 N. Y. 446, that, notwithstanding that act, a trust may he 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, 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 desired to assist. This case was affirmed by the Court of Appeals without an opinion in 201 New York, 546, 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 Or eat 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, Ch. Cas. 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 reason. For 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 of Lonsdale, 1 Sim. 105.

In Legge v. Asgill, T. & R. 265, n., 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. Goulburn, 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 H. L. Cas. 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 Molloy (Ir. Ch.) 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 Ves. Jr. 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 Eldon, 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 patrice 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 he accomplished. * * * All the cases prove that where the substantial intention is charity, though the mode by which it is to he 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 testator.

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, 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, a bequest to the pastor of a Roman Catholic church to he 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, 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 he 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, 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, 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, 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 is 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; Matter of Robinson, 203 id. 380, 389; Matter of Cunningham, 206 id. 601, 605.

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 bequests 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.

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 contra-distinguished 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 applied 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; Buell v. Gardner, 83 Misc. Rep. 521.

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; Matter of Griffin, 167 id. 81; Matter of Cunningham, 206 id. 607.

It follows that the bequest in question is valid as a gift in trust for charitable uses.

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; Harris v. Achilles, 129 App. Div, 848, 851; Russell v. Hilton, 37 Misc. Rep. 645; Webb v. Sweet, 187 N. Y. 172; Recht v. Herschmann Bleier-Edelstein Co., 139 App Div. 300; Cahill v. Russell, 140 N. Y. 402, 408; Mendel v. Levis, 40 Misc. Rep. 271, 273; Kelly v. Hoey, 35 App. Div. 276, 277; 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; Weintraub v. Siegel, 133 id. 681; Fraser v. United Pres. Church, 124 N. Y. 479.

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. In this respect the case differs materially from Matter of Tatum, 61 App. Div. 513; 169 N. Y. 514, which was distinguished from the Salisbury case by the absence of a direction to equally divide the estate.

The above construction finds further confirmation in other parts of the will. Thus, the testatrix gives, devises and bequeaths to her friend Miss DeLancy two shares which arise on such division, one share she gives, devises and bequeaths to a trustee to invest the funds so in his hands and pay the income therefrom to or for the benefit of her nephew during his minority and when said nephew becomes twenty-one years of age she gives, grants, devises and bequeaths the principal sum in the hands of said trustee to her said nephew and directs that the trust shall then cease and terminate. This provision of her will she modified by her codicil whereby she gave and bequeathed said share to trustees to invest and pay over the income annually to her nephew during his life, and after bis death to her sister during her life, and after her death she gave and bequeathed the said share to the American Bible Society. The remaining share the testatrix gave, devised and bequeathed to a trustee to invest said funds in Ms hands and pay the income therefrom to or for the benefit of her nephew during his life and after his death she gave, devised and bequeathed said part to trustees to be held in'trust and the income given yearly to some charity or charitable institution. It will be observed that all through the will the testatrix, in speaking of the shares into which her estate is to be divided and held in trust, designates them as the funds in the hands of the trustees which are to be invested and the income paid over as directed. The only conclusion fairly to be drawn from this language is that the testatrix regarded the portions, thus directed to be held in trust, as personal property.

The very recent case of Tailer, 147 App. Div. 741; affd. on opinion below, 205 N. Y. 599, is quite similar to the one here presented and is a very decisive authority in showing that an equitable conversion resulted from the terms of this will.

It is quite true that in the original will the testatrix uses the words ‘ give, devise and bequeath, ’ ’ and that the word devise ” is. usually applied to the transfer of real estate, but the use of this word is not significant when the context of the will shows a contrary intent. Especially is this so when the testatrix in her codicil omits the word devise ” entirely when dealing with one of the shares so held in trust. The interchange of the words “ bequeathed ” or “ devised ’ ’ is of no moment where the intention of the testatrix is plain. Matter of White, 125 N. Y. 545, 549, 550; Cramer v. Cramer, 35 Misc. Rep. 17, 20; Matter of Tailer, 147 App. Div. 742, 749.

It is said in Asche v. Asche, 113 N. Y. 233, that the necessity of a conversion of realty into personalty to accomplish the purposes expressed in a will is equivalent to an imperative direction to convert and effects an equitable conversion.

• I, therefore, conclude that the language and general scheme of this will created an implied and imperative power of sale to carry out its provisions and that, consequently, there was an equitable conversion of the real estate into personalty. Salisbury v. Slade, 160 N. Y. 288.

The record before me shows that with the exception of William E. Edwards, to whom a legacy of $300 was bequeathed, all of the individual legatees mentioned in the will predeceased the testatrix. None of these legatees were descendants of the testatrix and, therefore, said legacies lapsed. Decedent Estate Law, § 29; Van Beuren v. Dash, 30 N. Y. 393; Matter of Wells, 113 id. 396; Roberts v. Bosworth, 107 App. Div. 511.

And the amount- of said legacies became unbequeathed assets of said testatrix to be distributed among the next of kin. Morton v. Woodbury, 153 N. Y. 243; Clark v. Cammann, 160 id. 316.

The failure of the precedent estate in the one-fourth which was directed to be held in trust for the nephew and sister of the testatrix during their respective lives did not effect the ultimate gift to the American Bible Society and that society is, therefore, entitled to take the same. Norris v. Beyea, 13 N. Y. 273, 287; Campbell v. Rawdon, 18 id. 412, 421; Downing v. Marshall, 23 id. 366, 370; Matter of Miller, 161 id. 71; Williams v. Jones, 166 id. 537; Wager v. Wager, 96 id. 171; United States Trust Co. v. Eogencamp, 191 id. 284, 285.

The remaining one-fourth part of said residue constitutes a valid trust to charitable uses for the reasons above stated.

In the distribution of the estate among the testatrix’s next of kin none beyond the degree of first cousins are entitled to participate. Adee v. Campbell, 79 N. Y. 52; Matter of Barry, 62 Misc. Rep. 456; Matter of Schlosser, 63 id. 166.

The foregoing disposes of all the questions which arise in this case.

As to the relief to be granted, the plaintiffs ask that their account may be taken and stated and distribution of the estate had in the proceeding. While the Supreme Court possesses concurrent jurisdiction with the Surrogate’s Court to take and state the accounts of executors and administrators, it will ordinarily refuse to exercise such jurisdiction and will only do so when special circumstances exist which would prevent the Surrogate’s Court granting full relief, or where, because of such circumstances, justice requires that such an accounting should be had in this court. Haddow v. Lundy, 59 N. Y. 320; Chipman v. Montgomery, 63 id. 222, 236; Cass v. Cass, 61 Hun, 460, 464; Hard v. Ashley, 117 N. Y. 606; Sanders v. Soutter, 126 id. 193, 200; Douglas v. Tost, 64 Hun, 155; Borrowe v. Corbin, 31 App. Div. 172, 177; Bushe v. Wright, 118 id. 320.

All parties now join in asking that this jurisdiction be exercised and, as the court has already determined practically all the questions which would arise on an accounting before the surrogate, and nothing now remains to be done by the plaintiff aside from distributing the estate, one-fourth of which must remain subject to the control of the court, and it appearing that there are a large number of persons interested in the estate, largely residing out of the state of New York, all of whom are parties to this action and over whom the court now possesses full jurisdiction, and it also appearing that to relegate the parties to the Surrogate’s Court would entail a great and unnecessary expense, I conclude that it is proper to grant that relief in this action.

An interlocutory judgment should, therefore, be entered construing said will along the lines above laid down and directing the distribution of the estate accordingly. The decree should provide for the appointment of a referee to take and state the accounts of the plaintiff as administrator with the will annexed of the testatrix and, as all the trustees named in the will are dead except Mrs. Brown, who refuses to act, in analogy to the ancient doctrine of cy pres and pursuant to the provisions of the Charitable Uses Act, the referee should also ascertain and report a scheme for the administration of the charitable use declared in said will, to the end that upon the coming in of his report final judgment may be entered in accordance with the rights of all the parties.

All questions as to costs are reserved until application for final judgment. Findings in accordance with this opinion may be prepared and, if not agreed to by counsel, settled before me on five days ’ notice.

The plaintiff’s attorneys will serve a copy of this opinion with the proposed findings.

Judgment accordingly.  