
    Ruppel v. Schlegel et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    1. Wills—Construction—Nature oe Estate.
    A testator devised all his property to Ms wife for life, and, after her death, all the remainder left by her “to the Roman Catholic Church of the Most Holy Trinity, in Montrose Ave., Brooklyn, E. D., but under the following ordination;” that in each year a high mass shall be celebrated after the death of himself and wife, for their souls, respectively, and a part of the estate shall be used in aiding poor students, intending to become Catholic priests or teachers, and a part to establish a Catholic newspaper. Held, that the devise was valid, and did not create a trust, but vested the fee-simple title to the property in the church.
    2. Same—Action to Construe.
    Under Code Civil Proc. N. Y. § 1866, which provides that an action may be maintained to determine the validity, construction, or effect of a testamentary disposition, the sister and heir at law of a testator, who is not a beneficiary, but who contests the validity of a devise, cannot sue in equity for a construction of the will.
    Appeal from special term, Kings county.
    Action by Margaret Buppel against Mary B. Schlegel and others for the construction of the will of Adam Schlegel, deceased, under Code CivilProc. N. Y. § 1866, which provides that an action may be maintained to determine the validity, construction, or effect of a testamentary disposition. The opinion of the surrogate, filed July 26,1886, is as follows:
    “Tuthill, S. 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: «Fifth. 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 Boman Catholic Church of the Most Holy Trinity in Montrose Ave., Brooklyn, B. 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. (5.) 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 fifth clause be valid the church must, under chapter 360, Laws 1860, be restricted to one-half the estate. 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 58, 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 oestuis que trustent 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 no specific legal meaning; but I think we may ascertain the testator’s meaning withoutdoing 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 towards 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 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 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. Me Aróle, 99 H. Y. 451, 2 H. E. Bep. 464, recognized the principle that one could contract to purchase masses; and Judge Cullen, in the Holland Case, [ÍT. Y. Daily Beg. Jan. 29, 1886,] sustained a residuary devise to be expended in masses. The helping of poor-students was held, in Rainey v. Laing, 58 Barb. 453, tó 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-fifth 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 ministry 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 are 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 proponents, including stenographer’s fees, should be paid out of the estate. ”
    Defendant appeals from the judgment of the King’s county court, which, is as follows: “Irrespective of the question whether the plaintiff has a standing in court to prosecute this action, I think the defendants must have judgment. There is no trust contained in the fifth 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. Ho- 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. ”
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Lyon & Nemirs, (Daniel Nemirs, of counsel,) for appellant. Thomas-Young, for respondents.
   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 he affirmed, with costs. All concur.  