
    Frank B. Torrey, as Executor of and Trustee Under the Last Will and Testament of Edward Warren Day, Deceased, Plaintiff, v. Elbert H. Day, George K. Day, Frederick C. Day, Evelyn H. Bruner and Thomas Carmody, as Attorney-General of the State of New York, Defendants.
    (Supreme Court,
    Kings Special Term for Trials, May, 1913.)
    Wills — bequest to charity —charitable purpose upheld — executors and administrators.
    The .principle is now firmly established that if a charitable purpose pervades and dominates a bequest the scheme and purpose of the testator should be upheld in the courts.
    
      A bequest to the cause o£ charity, to be expended by the 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 the earnest attention of the executor to' the dire necessity of inadequately endowed hospitals and institutions of like character, but earnestly and heartily disapproving of his rendering any financial assistance to institutions engaged in the practice of establishing and maintaining foreign missions, is valid.
    Action for the construction, of a will.
    Miller, King, Lane & Trafford, for plaintiff.
    James K. Speers, for defendants Elbert H. Day, George K. Day and Frederick C. Day.
    George W. McKenzie, for Evelyn H. Bruner.
    Thomas Carmody, Attorney-General,
   Manning, J.

This case involves the construction to be placed upon the residuary clause of the testator’s will, the exact wording of such clause being as follows:

"I give and bequeeth the ballance 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 inedquately endowed hospitals, or those insufficenty appropiated for by legislatire or govermmental 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 Ms 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. ’ ’

If by any possible rule of construction, doubt or uncertainty could be attributed to the gift in question, it seems to me that the situation is materially cleared by legislative enactment and the trend of judicial decisions pronounced within recent years. ..The principle is now firmly established that if a charitable purpose pervades. and dominates the bequest, the scheme and purpose of the testator should be upheld and enforced.

It will be noticed that the testator specifically makes the gift ‘ ‘ to the Cause of Charity. ’ ’ This is the basic designation of his bounty. He further directs that the amount of his bequest 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 inedquately endowed hospitals, * * *” and his intent is further emphasized by the objection to any part of his estate being given to “ maintaining foreign Missions.”

Hence, if the will be given the just, equitable and liberal construction which the courts in recent years seem-disposed to give to similar testamentary documents, there seems to be no good reason why this clause should not be upheld.

The law relative to charitable bequests and trusts has been so recently discussed and settled by the Court of Appeals, it would serve no useful purpose to attempt a review of the question. The following authorities seem applicable to the case at issue here, and a reference to them is all that seems necessary. Laws of 1893, chap. 701; Pers. Prop. Law, § 12; Real Prop. Law, § 113; Matter of Cunningham, 206 N. Y. 601, and cases therein cited; Matter of Robinson, 203 id. 380; Matter of Davis, 77 Misc. Rep. 72; affd. by App. Div. in Memorandum opinion, April, 1913.

The clause of the testator’s will in issue is construed as a valid one in accordance with the foregoing memorandum.

Judgment for the plaintiff, upholding the gift. Costs to all parties appearing and filing briefs to be paid out of the estate.

Judgment for plaintiff.  