
    The Trustees of the Sailors' Snug Harbor in the City of New York, and Others, as Trustees of the Said Corporation, etc., Appellants, v. Thomas Carmody, as Attorney-General of the State of New York, Respondent.
    First Department,
    November 7, 1913.
    Trust — charitable trust — provision of will creating trust authorizing trustees to incorporate — Supreme Court — jurisdiction to construe trust provisions — parties — authority of trustees to mortgage or sell trust property — complaint — demurrer.
    Where a testator devised the residue of his estate, both real and personal, to certain designated trustees for the purpose of maintaining and supporting aged, decrepit and worn-out sailors,” and provided that the said trustees might, if necessary, in order to carry out the purposes of the trust, form a corporation and transfer the property thereto, which they did, the Supreme Court has jurisdiction both inherently and under the provisions of section 12 of the Personal Property Law and section 113 of the Real Property Law to entertain an action by the trustees after incorporation for a construction of the will and for instructions as to their powers and duties. .
    In such an action the Attorney-General is the only necessary party defendant, where the heirs of the testator have no interest reversionary or otherwise. The uncertain beneficiaries of the trust have no standing in court for any purpose. Then interests are in the care of the State and are represented by the Attorney-General.
    The. court should grant an application by trustees for authority to sell or mortgage real estate held by them, where it appears that it is decreasing in value and is not adapted to the uses to which it is now devoted.
    Appeal by the plaintiffs, The Trustees of the Sailors’ Snug Harbor in the City of New York, and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of October, 1912, sustaining a demurrer to the complaint, and dismissing the same upon the ground that it fails to state facts sufficient to constitute a cause of action.
    By this action the plaintiffs seek authority either to sell or to mortgage a portion of the real estate devised by the will of Robert R. Randall, deceased; also for instructions as to their power in certain particulars to deal with such real estate and the accretions of rents and other accumulations therefrom. Captain Randall died in the year 1801, having in June of that year made his last will and testament, probate of which was regularly made in New York city. The provisions of his will which bear upon ' the issues in this action are as follows:
    
      “Sixthly. As to and concerning all the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath the same unto the Chancellor of the State of Hew York, the Mayor and Recorder of the city of New York, the President of the Chamber of Commerce in the city of New York, the President and Vice-President of the Marine Society of the city of New York, the senior Minister of the Episcopal Church in the said city, and the senior Minister of the Presbyterian Church in the said city; to have and to hold all and singular the rest, residue and remainder of my said real and personal estate, unto them, the said Chancellor of the State of New York, Mayor of the city of New York, the Recorder of the city of New York, the President of the Chamber of Commerce, President and Vice-President of the Marine Society, senior Minister of the Episcopal Church, and senior Minister of the Presbyterian Church in said city, for the time being, and their respective successors in the said offices, forever, to, for and upon the uses, trusts, intents and purposes, and subject to the direction and appointments hereinafter mentioned and declared concerning the same; that is to say, out of the rents, issues and profits of the said rest, residue and remainder of my said real and personal estate, to erect and build upon some eligible part of the land upon which I now reside, an Asylum, or Marine Hospital, to be called ‘ The Sailors’ Snug Harbor,’ for the purpose of maintaining and supporting aged, decrepit and worn-out sailors, as soon as they, my said charity Trustees, or a majority of them, shall judge the proceeds of the said estate will support fifty of the said sailors, and upwards. And I do hereby direct that the income of the said real and personal estate, given as aforesaid to my said charity Trustees, shall forever hereafter be used and applied for supporting the Asylum or Marine Hospital hereby directed tobe built, and for maintaining sailors of the above description therein, in such manner as the said Trustees, or a majority of them, may from time to time, or their successors in office may from time to time, direct. And it is my intention that' the institution hereby directed and created should be perpetual, and that the above-mentioned officers for the time being and their successors, should forever continue and be the governors thereof, and have the superintendence of the same; and it is my will and desire that if it cannot legally be done, according to my above intention, by them, without an Act of the Legislature, it is my will and desire that they will, as soon as possible, apply for an Act of the Legislature to incorporate them for the purposes above specified. And I do further declare it to be (my) will and intention that the said rest, residue and remainder of my real and personal estate should be, at all events, applied for the uses and purposes above set forth; and that it is my desire all courts of law and equity will so construe this, my said Will, as to have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, possess or enjoy my property, except in the manner and for the uses hereinabove specified.”
    The foregoing residuary clause covered both real and personal property, the former includmg premises with which this action is principally concerned, and consisting of upwards of twenty-two acres of land which, at the time of the testator’s death, lay remote from the city, but afterwards was included within the fifteenth ward thereof, and lies in the district embraced within Waverly place, Eighth street, Fourth and Fifth avenues. At the instance of the trustees named in the will, in the year 1806 the Legislature passed an act (Laws of 1806, chap. 4) entitled “An Act to incorporate the Trustees of the Marine Hospital, called The Sailor’s Snug Harbor, in the City of New-York.” The preamble to this act recited that it had been represented to the Legislature that Captain Randall had devised his residuary estate to the Chancellor of this State, and to the other incumbents of the several offices enumerated in the will, and to their successors in office, in trust, for the purposes described in the will, and had “ declared his intention to be, that the said estate should at all events be applied to the purposes aforesaid, and no other, and if his said intent could not be carried into effect without an act of incorporation, he therein expressed his desire that the said trustees would apply to the Legislature for such incorporation;' ” that the said trustees had represented that the estate so devised would, in time, if prudently managed, enable them to carry the testator’s purposes into practical effect, but that inasmuch as they held their trusteeships under the will only during their ephemeral incumbency of the offices they respectively held, inconveniences had arisen in the management of the estate, to overcome which they “ prayed to be incorporated for the purposes expressed in the said will.” By the 1st section of the act, “ John Lansing, Junior, the Chancellor of this State,” and the other officials named in the will, “ and their successors in office respectively, in virtue of their said offices,” were “constituted and declared to be a body corporate, in fact and in name, by the name and style of the Trustees of the Sailor’s Snug Harbor in the City of New-York,” by which name they and their successors were given continual succession and other corporate functions, and were declared to “ be capable, in law, of holding and disposing of the said real and personal estate devised and bequeathed as aforesaid, according to the intention of the said will, and the same is hereby declared to be vested in them and their successors in office, for the purposes therein expressed.” Power to purchase, hold and convey “ any other real and personal estate for the use and benefit of the said corporation, in such manner as to them, or a majority of them, shall appear to be most conducive to the interest of the said institution ” was likewise given. The 2d section of the act conferred upon the trustees power to make rules for the government of the corporation, and contained other provisions for the organization of the internal affairs of the corporation and its trustees and for the regulation thereof. By the 3d and last section the act was declared to be a “ public act, and be construed in all courts and places benignly and favorably, for the purposes therein intended.” The accumulations of the estate having as yet proven insufficient to carry out the purposes of the will, and time having demonstrated that it was undesirable to establish the Sailors’ Snug Harbor upon any of the testator’s lands, by procurement of the trustees, in the year 1828 an act was passed (Laws of 1828, chap. 276) which, among other things, authorized the trustees, with the approval of the Court of Chancery, to purchase a suitable tract upon which to build and maintain the harbor, and thereupon “it shall be lawful for the said trustees to lease all the lots now belonging to .the ” corporation. In pursuance of this act, the trustees purchased land and located the harbor on Staten Island, and by authority of the same act they adopted a plan for the improvement and development of their fifteenth ward property. Pursuant to this plan, the property was divided into lots each approximately 25 by 100 feet, and was leased upon long term ground leases, many of which have fallen in, Avhile many others have still considerable periods to run. Under these leases the tenants erected their own improvements and paid to the trustees a net rental over and above all taxes and other charges, which were borne by the tenants. The complaint further alleged that the type of buildings which were erected upon a large number of the lots in question, while appropriate to the uses to which the land was then adapted, where they have not become worn out and worthless, have become obsolete and unadapted and unadaptable to the only use or uses to which it is now practical to devote them; that as to a large portion of the property, from a district of residences, the neighborhood has become one devoted chiefly to business, and that, in order to uphold values, already much depreciated in the very considerable section in question, and to prevent a further and increasing sacrifice of income by driving desirable business permanently away, it is necessary that the property should be improved in an appropriate manner, a course which involves the buying up of leases and also the erection of suitable improvements by the plaintiff corporation (for which purposes it lacks the necessary means), or the sale of portions of the property to those who may wish to buy and improve. Upon these and other minor subjects the plaintiff prayed for the instruction and authority of the court.
    
      Lewis L. Delafield, for the appellants.
    
      Henry Selden Bacon, Deputy Attorney-General, for the respondent.
   Hotchkiss, J.:

The plaintiffs invoke the equitable jurisdiction of the court to the end that the laudable purposes of the testator may be perpetuated in as generous a measure as a wise and practical administration of the estate may afford, and that these purposes be not defeated by conditions unforeseen and unforeseeable when the will was executed. In brief, the plaintiffs contend that the residuary clause of the will was a devise to a charitable use; that a charitable use was affixed by the will upon the land; that upon the grant of the charter of 1806 to the trustees, the corporation thus formed acquired the legal title by virtue of the aforesaid devise for the charitable use expressed in the will, and thus through sovereign grace became the agency by means of which the devise was to be executed; that although the State might as parens patries grant the relief sought through the medium of this action, as in fact it theretofore had by the act of 1828 granted similar relief, the Supreme Court had concurrent jurisdiction, which may be invoked either by the corporation, as donee of the charitable use, or by the State through its Attorney-General. Stated substantially in the words of their brief, the plaintiffs claim that upon the passage of the act of 1806, as to this particular charity, the law of charities as formerly applied in England (except in so far as it rested either upon the royal prerogative or upon the statute of 43 Elizabeth, chap. 4) was restored and our then Court of Chancery was reinvested with authority to apply and administer the same, which authority has passed to the Supreme Court; also, that similar jurisdiction and authority were conferred upon the Supreme Court by virtue of the so-called Tilden Act (Laws of 1893, chap. 701, as amd. by Laws of 1901, chap. 291), now contained in section 113 of the Eeal Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], as amd. by Laws of 1909, chap. 144) and section 12 of the Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], as amd. by Laws of 1909, chap. 144). I put plaintiffs’ claim in the broad language of them brief, that it may be contrasted with the somewhat narrower limits to which I shall confine myself, because, while not denying the broader jurisdiction, I do not think it necessary for the decision of this case to define the exact extent of our jurisdiction over the subject of charities. It will be quite sufficient if we find that the court has within its ordinary equity jurisdiction, or within that jurisdiction over charities which was embraced within its purely judicial powers, particularly as distinguished from certain powers exercised by the English chancellor and which lay in a sort of twilight zone between the judicial and the prerogative (See Adams Equity [1st ed.], 73-77; 2 Story Eq. Juris. [3d ed.] § 1142 etseq.; also, per Selden, J., Owens v. Missionary Society of M. E. Church, 14 N. Y. 380, 387, 388, 408; per Johnson, J., Inglis v. Trustees, etc., of Sailor’s Snug Harbour, 3 Pet. 137, 138), jurisdiction to grant appropriate relief upon the facts disclosed by the complaint.

The position taken by the learned Attorney-General, and in which he has so far been successful, is that neither the corporate nor the individual plaintiffs hold the property subject to any trust under the Randall will or otherwise, but that it is held by the corporation absolutely for the purposes expressed in the act of its incorporation; that the powers of the corporation are to be found in the said act and those supplemental thereto, and in the general statutes of the State, so far as the same are applicable, and that if the corporation lacks power to do the things it seeks by this action authority to do, it must secure such authority from the Legislature, this court being without jurisdiction in the premises. It is also urged as ground for dismissing the complaint that if jurisdiction exists to grant the relief sought for, it may only be exercised in a proceeding initiated by the Attorney-General, or, at least, that plaintiffs’ remedy, if any, is by petition and not by action; also, that to authorize any sale of the property would be to destroy a vested estate.

Before examining the questions thus presented, it is proper to say that I see no reason for the individual trustees being made parties hereto. Ooncededly, the whole legal title to the property is in the corporation, and the trustees, as such, have no interest therein, or, at least, no interest which attaches to the title.

It will facilitate the task before us if we keep in mind the fact that whether we • assume the will to be valid within the doctrine of Burrill v. Boardman (43 N. Y. 254) and kindred cases, or to have been validated by the act of 1806, in any event the situation presented is one of a definite use, capable of being specifically executed, with trustees competent to take. It accordingly presents none of the difficulties associated with that branch of the law of charities, or of the ay pres doctrine, which necessarily was invoked whenever it was sought to establish a charitable use, void at law, and which gave rise to the series of cases finally resulting in the overthrow of the entire law of charities in this State. (See Holland v. Alcock, 108 N. Y. 312, 319 at seq.)

Manifestly the primary question involves an inquiry into the nature and quality of the title thus held by the corporation. This question has been simplified, if not authoritatively settled, by the decision in Inglis v. Trustees of Sailor’s Snug Harbour (3 Pet. 99) in which the demandant Inglis, claiming as heir of Captain Randall, sought to recover all or certain of the premises in question, and in which case the validity of the will was determined. The opinion of the court was by Mr. Justice Thompson, Mr. Justice Story and Chief Justice Marshall dissenting. The decision sustaining the will went upon the ground that the residuary clause created a charitable use and vested the title in the trustees, subject, however, to an executory devise by which the title thus primarily vested in the trustees was subject to divestiture in favor of the corporation thereafter formed. (See pp. 113-119; also, per Gray, J., Russell v. Allen, 107 U. S. 168, 169.) In the course of its opinion and in support of the proposition that even if the devise to the trustees, or the executory devise, were bad, the heir would take the estate charged with the charitable use, the court said (3 Pet. 118-120): “ The general intent of the testator that this fund should be applied to the maintenance and support of aged, decrepit and worn out sailors, cannot be mistaken. And he seems to have anticipated that some difficulty might arise about its being legally done in the particular mode pointed out by him. And to guard against a failure of his purpose on that account, he directs application to be made to the Legislature for an incorporation, to take and execute the trust according to his will; declaring his will and intention to be, that his estate should at all events be applied to the uses and purposes aforesaid; and desiring all courts of law and equity so to construe his will as to have his estate applied to such uses. And to make it still more secure, if possible, he finally directs that his will should in no case, for want of legal form or otherwise, be so construed as that his relations or any other persons should heir, possess or enjoy his property, except in the manner and for the uses specified in his will. The will looks, 'therefore, to three alternatives: (1) That the officers named in the will as trustees should take the estate and execute the trust. (2) If that could not legally be done, then he directs his trustees to procure an act of incorporation, and vests the estate in it for the purpose of executing the trust. (3) If both these should fail, his heirs, or whosoever should possess and enjoy the property, are charged with the trust. That this trust is fastened upon the land cannot admit of a doubt. Wherever a person by will gives property, and points out the object, the property, and the way in which it shall go, a trust is created; unless he shows clearly that his desire expressed is to be controlled by the trustee, and that he shall have an option to defeat it. (2 Ves. Jun. 335.) * * * Whoever, therefore, takes the land takes it charged with these uses or trusts which are to be executed in the manner above mentioned. And, if so, there can be no objection to the act of incorporation and the vesting the title therein declared. It does not interfere with any vested rights in the heir. He has no beneficial interest in the land. And the law only transfers the execution of the trust from him to the corporation, and thereby carrying into effect the clear and manifest intention of the testator.”

Nor do I find anything in the dissenting opinion to lessen the force of the argument that if the will was valid the trust attached to the land in the hands of the devisee.

The argument of the dissentient justices was, that the devise was not to a corporation to be- created in futuro, but was a devise in prcesenti to the trustees, and if they could not execute their powers in the manner prescribed by the testator, they were to apply to the Legislature for an act of incorporation, a situation which, it was argued, could not give rise to an executory devise. In the course of his opinion on this branch of the case, Mr. Justice Story said (p. 152): I come now to the other part of the question, whether, if the devise be void at law, the estate in the hands of the heirs is affected with the trust in favor of the charity. It appears to me most manifest that it is affected by the trust, if we consult either the intention of the testator or the express terms of the will.” And the same learned justice said in conclusion: That the devise, if a valid devise, is not a devise valid so as to divest the heir at law of his legal estate; but that .the devise can have effect, if at all, only as a trust for a charity fastened on the legal estate in his hands ” (p. 154). That the trust originating in the will continued to be attached to the estate in the hands of the corporation when it became clothed with power to take and execute the trust, is sustained by abundant authority other than the Inglis case. In McCartee v. Orphan Asylum Society (9 Cow. 437) there was a devise for charitable uses to the asylum, an incorporated body, subject to a prior estate given in trust to certain trustees, which prior estate had terminated. The chancellor had held that the estate passed to the trustee to the use of the corporation, and that the devise was good at law, but if not, the testator’s intention to devise for a charitable use could be effectuated in equity by virtue of the general powers of the Court of Chancery in cases of trust. Necessarily this involved no exercise of cy pres powers, which are entirely distinct. (Id. 442-444, 469, 470 et seq.) This decision was reversed by the Court of Errors (Id. 504, 525), where it was held that the devise was direct to the corporation and, therefore, as to the real estate was void under the Statute of Wills. With the point on which the reversal turned we have nothing > to do, but in the course of that part of the chancellor’s opinion which covers the question whether, if the devise was void at law, equity could not enforce it, he examined at length the early cases and from them deduced the principle that, in obedience to the intention of the testator, “ equity will regard the substance of the trust, and if the estate devised be described with sufficient certainty and the objects of the testator’s bounty designated or defined, the death, disability or refusal to act, or other failure of the trustees, will not be suffered to disappoint the intention of the testator; but the trustees themselves, if the estate is vested in them, or the heir, or executor, where the title devolves upon him, shall be charged with the trusts, and the performance of them enforced by the court, for the benefit of those to whom the beneficial interest is given by the will” (p. 486). The conclusion of the learned chancellor was, that if the court had jurisdiction to establish and enforce such a trust against the heir or devisee, in favor of the cestui que trust, “these complainants [the Society] must surely be entitled to the benefit and application of the principle, in sustaining the trust in their favor for the charitable purposes of the institution they represent.” (Id.) In other words, a lawful devise of land for a charitable use creates a trust which is not to be regarded differently, so far as the jurisdictional status of the estate devised is concerned, from the ordinary private trust, and in every such case the trust attaches to the land in the hands of the donee. (Id. 484; Inglis v. Trustees of Sailor’s Snug Harbour, supra, page 119.)

In Owens v. Missionary Society of M. E. Church (supra, 385) Judge Selden dwells upon the distinction between an absolute gift and one for a charitable use, saying: “There can be no charitable use without a trust. To deny that this bequest was accompanied by a trust, therefore, is to deny that the law of charitable uses applies to the case.” The same learned judge went so far as to say that a bequest to a distinctly charitable corporation, although unaccompanied by any description of the purposes of the bequest, would afford “some basis ” for the implication of a trust, “because the objects, purposes and powers of the corporation being in all cases more or less clearly defined by its charter, the.bequest may fairly be presumed to have been intended for those specific objects ” (pp. 385, 386). Tudor is to the same effect. (Tudor Char. & Mort. [4th ed.] 175.)

In the Court of Errors one of the minority opinions in the McCartee case was delivered by Stebbins, Sen., whose argument, although it did not prevail as applying to that case, seems to me to express most cogently a line of practical reasoning applicable to the case before us. Speaking of the testator, the learned senator said (p. 524): “his object was not to benefit the society; but through it to apply the estate to the charitable purposes for which the society was organized. The society itself is a trustee, and has a trust to perform, which a court of equity would undoubtedly enforce.” The senator then puts these questions: Suppose the corporation were dissolved, or should otherwise become incapable of executing the trust, would not the court appoint a new trustee ? or, suppose the corporate powers be enlarged, and it be authorized to do a banking business in addition to the charitable operations for which it was originally incorporated, would it be contended that it was the testator’s intention that the proceeds of his devise should be used as banking capital ? In Owens v. Missionary Society of M. E. Church (supra, p. 385) Judge Selden resorts to a similar illustration. In the light of the foregoing the situation, unless changed by some other and controlling feature, would seem to be very plain. It involves nothing more than the fundamental elements of a valid testamentary trust of the usual kind, namely, a sufficient expression of intent and an ascertained (or ascertainable) beneficiary; these being declared, whether the beneficiary be a definite person or a corporation capable of taking, the law will fasten the trust upon him who has the legal estate, whether the grantor, heir, testator or next of kin, as the case may be. (See Holland v. Alcock, supra, 330.)

That the incorporation of the trustees did not divest or change the nature of the trust seems clear. The language of the minority of the court in the Inglis case is in accord with this view. On this point Mr. Justice Story said (pp. 153, 154): “It is said that if the trust be valid the Legislature had a perfect right to enforce it, and their act of incorporation amounts to a legal execution of the trusts and vests the estate in the corporation * * *. But I cannot admit that the act of incorporation was intended to have such an effect. It has no terms which divest the legal title of the heirs, it merely incorporates the trustees and their successors, and clothes them with the usual powers to carry the trust into effect. It presupposes that the estate was already vested in them by the will. They are made 'capable in law of holding and disposing of the estate ’ devised by the will. It is true that the uses are added ‘ and the same (estate) is hereby declared to be vested hi them and their successors in office for the purposes therein (in the will) expressed.’ But this was not, as I think, intended to vest the estate in them as a legislative investiture; but to declare that the estate was vested in them for the purposes of the charity and not otherwise.” In Trustees of Dartmouth College v. Woodward (4 Wheat. 518) the court, referring particularly to the original private foundation of Dartmouth College, the administration of which was succeeded by an incorporated body, said: From the fact * * * that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution * * *. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed and the objects for which they are created ” (p. 638).

Of a charter granted subsequent to a foundation established by a deed or will, Tudor says (Tudor Char. & Mort. [4th ed.] 185): “ Here the charter is merely machinery for providing an incorporated trustee armed with appropriate powers to carry into effect a pre-existing trust, and the grant of such a charter does not in any way affect the powers of the court to establish and regulate the charity.” (See, also, 2 Perry Trusts [5th ed.], § 743; Attorney-Gen. v. Governors of Free Grammar School, 23 Beav. 350; Matter of Manchester Royal Infirmary, L. R. 43 Ch. Div. 420, 428.) And this coincides with such late expressions as are to be found on the subject in this State. In Dammert v. Osborn (140 N. Y. 30, 42) the court said of an act somewhat similar to the one in question: “It is an expression of the will of the supreme legislative power that the gift in question should be received and administered in the manner and for the objects designated in the will * * *. The Legislature in effect said that * * * this gift shall take effect according to the intention of the donor and be administered by a corporate body of its own creation. ”

In none of the very numerous cases in England and in this country, where the courts have exercised jurisdiction to establish direct or administer charitable trusts, of which corporations were the donees, have I found one where, in the absence of some statutory provision affecting its jurisdiction, it has been suggested that the mere fact that the trust was to be executed by a corporation, deprived the court of its power to exercise its usual jurisdiction in similar matters. In fact, there is no authority to be found for such a proposition. I am satisfied that, as the result of the will and the act of 1806, there was established as between the corporation and the State (representing the ultimate and undefined beneficiaries), a trust relation of such a character as commonly exists in the case of a valid devise for a charitable use. “In England and in this country, where a court of chancery exists, a charity of the description in question is a peculiar subject of the jurisdiction of that court.” (Per Nelson, J., Stanley v. Colt, 5 Wall. 119, 169.) Whether jurisdiction to direct or to, administer, as distinguished from the power to establish, such a trust rests in the court’s ordinary jurisdiction as a court of equity, or attaches only as an incident to its inherent jurisdiction over charities (Story Eq. Juris. [3d ed.] 1161, 1162, 1187-1192; Tudor Char. & Mort. [4th ed.] 181) presents, so far as this case is concerned, an academic question of interest to the student, but one which we need not determine. It will satisfy our purpose to find that in either aspect plenary jurisdiction exists. Assuming that jurisdiction rests in virtue of the charitable character of the trust, it will be instructive to ascertain the exact legal nature of the relief sought by this action. At the risk of extending this opinion beyond reasonable limits, because of its peculiar pertinency, I am led to quote from the decision in Lackland v. Walker (151 Mo. 210, 247 et seq.), a case of an estate affected.by conditions similar to those alleged in the complaint to exist with respect to the Snug Harbor estate, but where the will expressly prohibited any alienation of the property. “ The concrete question, therefore, is whether upon a proper showing, a court of chancery has the jurisdiction to authorize an out and out alienation of the property affected by the provisions of the wiE in question. Primarily it is clear that this involves no phase of what is known as the prerogative power of cy pres; for here there are a defined charity, a clear trust and competent trustees to hold the property to that end [citing cases]. Nor is it an instance which caEs for the exercise of the usual judicial power of cy pres ■ * * * for here the mode of accomplishing the charity, properly speaking, to wit: the provisions for the maintenance and extension of the Missouri Botannical Garden under the supervision of the trustees named, and for the accomplishment in other respects of the charitable ends mentioned in the will, are complete and not sought to be departed from [citing cases]. The petition invokes the exercise of the court’s power of administration in respect of the forms to be observed in accomplishing and furthering both the object and mode prescribed by the testator. Broadly speaking, the express sion ‘ cy pres power ’ defines a limitation as well as an affirmative authority. Where the case is one in which the chancellor can act in his judicial capacity, as distinguished from the power exercised in the English system by the Lord Chancellor as the representative of the Crown’s sign-manual, the jurisdiction over charities is an .inherent one, i. e., while courts of equity, as such, possess no power to create a charitable trust, they liberally exercise a jurisdiction to enforce and preserve such a trust, when it is valid in its creation In exercising this jurisdiction, the courts proceed cy pres ; They give effect to the expressed charitable purposes of the donor as near as may be, and in supplying or remedying the defects disclosed in practice, they act in effectuation of 'the controlling purpose disclosed by the instrument presented for construction, so as to preserve and make useful what may be called the spirit of the charity ’ [citing cases]. It is a natural and necessary branch of the jurisdiction over charitable trusts that the means or details prescribed for their administration should be subject to be moulded so as to meet any exigency which may be disclosed by a change of circumstances and, to relieve the trust from a condition which imperils or endangers the charity itself or the funds provided for its endurement and maintenance * * *. But in the very nature of things the jurisdiction merely 'to vary the details of administration ’ is more liberally exercised * * * and indeed is perhaps more firmly, established and more widely recognized than is that which is usually called the cy pres power of the court.”

In this situation what jurisdiction has our Supreme Court in the premises % If the relief sought is within its ordinary jurisdiction to direct trustees and administer trusts, nothing further need he said in its support. If it is a part of the jurisdiction peculiar to charities, I think it equally clear that the court possesses it. Conceding the laiv of charities to exist in this State, that the original jurisdiction of our former Court of Chancery extended to them is, of course, not questioned. (Williams v. Williams, 8 N. Y. 525, 558.) Although the doctrine of the Williams case was subsequently repudiated, this was only so far as it attempted to apply the law of charitable uses. (Owens v. Missionary Society of M. E. Church, supra, 390, 408; Holland v. Alcock, supra, 312.)

The practical effect of the act of 1806, incorporating the plaintiffs herein, was to legalize this particular trust, if it was illegal (Inglis v. Trustees of Sailor’s Snug Harbour, supra, 119), or at least to afford statutory means for its execution, .if it was otherwise valid, (Per Rapallo, J., Holland v. Alcock, supra, 336). But in whichever way one views it, whether as the removal of an inhibition against jurisdiction, or the reinvesting of powers theretofore taken away, upon the passage of the act of 1806 the jurisdiction of Chancery attached (See, per Cullen, Ch. J., People ex rel. Swift v. Luce, 204 N. Y. 488, 489), and upon the abolition of that court, the powers and duties, not only of the Court of Chancery but of the chancellor, devolved upon the Supreme Court as such. (Butler v. Jarvis, 51 Hun, 268; People ex rel. Swift v. Luce, supra, 478, 487.) But notwithstanding I deem it clear that jurisdiction to grant the relief prayed for herein is inherently vested in this court, it is unnecessary to stand on this inherent jurisdiction alone. The Court of Appeals has several times said that by the Tilden Act the Legislature intended to restore to courts of equity that power to administer charitable trusts which they were declared to have in the Williams Case (supra). (Allen v. Stevens, 161 N. Y. 122, 141; Matter of Griffin, 167 id. 71, 80; Matter of Cunningham, 206 id. 601, 607.)

The 1st section of this act, as amended (now Personal Prop. Law, § 12, as amd. supra; Real Prop. Law, § 113, as amd. supra), is granting, enabling and legalizing in its nature; the 2d (as amd. supra) relates wholly to administration and expressly gives to this court “ control ” over all gifts of the character described in section 1, and in terms gives it authority, under proper circumstances, to “make an order directing that such gift * * * 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 of donation. It is true that the 1st section of the statute has been held not to apply to trusts created prior to its enactment. (People v. Powers, 147 N. Y. 104, 109; Murray v. Miller, 178 id. 316; Mount v. Tuttle, 183 id. 358.) This was because the Legislature was without power to alter the directions of a testator or to divert vested rights. (People v. Powers, supra, 109.) No such reason, however, prevents the application of section 2 to any and all trusts, whether theretofore or thereafter created, provided only they are within the class described in section 1. That the trust in question is so included camiot be doubted. I conclude, therefore, that the Tilden Act is cumulative and supplementary to the inherent jurisdiction of the court, affording an additional and concurrent source of jurisdiction in proper cases. Nor do I find that any limitation of this jurisdiction is to be inferred from the terms of the act of 1828 amending the act of 1806. The act of 1828 was clearly permissive. It allowed certain things to be done without commanding them. In the absence of unequivocal terms negativing the powers of such a court as was our Court of Chancery when this act was passed, a statute of this character is presumed not to have intended to impair its jurisdiction. The fact, therefore, that section 4 of the act of 1828 authorizes the trustees to lease its property affords no ground for inferring either an intention to restrain the corporation from selling or a purpose to restrict the court from exercising its jurisdiction in the premises when properly invoked.

As to the right of the plaintiffs to institute this action, making the Attorney-G-eneral the sole party defendant, I have no doubt. The 3d subdivisions of the several sections of the Eeal and Personal Property Laws above referred to expressly provide that the Attorney-General “shall represent the beneficiaries,” and prescribe it to “be his duty to enforce such trusts ” as are covered by subdivision 1 of the several sections. This also is merely cumulative. From the earliest times the Attorney-General, in England and in other jurisdictions where trusts for charitable uses have been recognized, has been regarded as the representative of the uncertain beneficiaries of a charity. In Williams v. Williams (supra, 553) Denio, J., refers to a case in this State in 1708 where the Attorney-General proceeded by information. In Andrews v. General Theological Sem. (8 N. Y. 559, 563), it appearing that no trustees were before the court representing a certain charitable legacy, leave was given to amend so as to make the Attorney-General a party. I am referred neither to statute nor authority to show that in this class of cases his functions have since been limited. On the contrary, both statute and unwritten law support the continuance of powers broad enough to include those in question. (Executive Law [Consol. Laws, chap. 18; Laws of 1909, chap. 23], § 62, subd. 1; People v. Miner, 2 Lans. 396; Davis & Palmer v. Mayor, etc., 2 Duer, 663; People v. Powers, 83 Hun, 449; Allen v. Stevens, 33 App. Div. 485.) Although the last three cases were reversed (14 N. Y. 506; 147 id. 104; 161 id. 122), it was upon grounds which did not conflict with the views expressed below on the point in question.

True, the reported cases are largely ones where the Attorney-General has, by bill or information, proceeded against the trustee, but it is not essential that the trustee should rest inert until the apprehended loss or danger has become so imminent as to bring the situation of the estate to the attention of the Attorney-General, or that the trustee should proceed at its peril upon some questionable course until that official invokes the jurisdiction of the court to restrain it. Many cases support the right of the trustee to assume the initiative-and to come into court for instructions or other proper relief. The following are illustrative of a long line of authorities: McCartee v. Orphan Asylum Society (supra, per Jones, Ch., 437, 482); Governors of Christ's Hospital v. Atty.-General (5 Hare, 257); Wardens, etc., of Clum Hospital v. Powys (6 Jurist, 252); Weeks v. Hobson (150 Mass. 377); Lackland v. Walker (supra); Academy of the Visitation v. Clemens (50 Mo. 167). Under the Tilden Act the proceeding contemplated seems to be by summary petition. But for many reasons this should not be construed as ousting the court of its ordinary j urisdiction by action. A somewhat similar situation seems to have arisen in England both under the 43d Elizabeth (Chap. 4) and 52d George III (Chap. 101), but the courts of that country held that the acts did not exclude their customary jurisdiction by bill. (See Tudor Char. & Mort. [4th ed.) 379, 382; Story Eq. Juris. [13th ed.) § 1147.)

The objection that to grant the relief prayed for would in effect destroy a vested estate is without weight. The title is vested in the corporation charged with the trust under the will. The heirs of the testator have no interest, reversionary or otherwise. The uncertain beneficiaries of the trust, i. 6., the “aged, decrepit and worn-out sailors,” have no standing in court for any purpose. Their interests are in the care of the State as parens 'patriae and are represented by the Attorney-General. The numerous authorities are uniform in holding that in granting relief similar to that prayed for in this action courts do no more than mould the form of the devise to suit the necessity of changed conditions; no diversion of the gift is either sought or intended. (Stanley v. Colt, supra; Ould v. Washington Hospital, etc., 95 U. S. 303; Lackland v. Walker, supra.)

Having thus disposed of all the objections to jurisdiction, the final question remains: Are the facts alleged prima facie sufficient to justify its exercise ? The situation disclosed is not one of mere expediency but of an existing exigency. A long-continued and progressive deterioration imperils the estate; and while the situation may not justify the fear that, if left to itself, the estate will either be annihilated or its net income be so reduced as to leave it insufficient to care for a number of beneficiaries equal to the original fifty named in the will, it is manifestly one which justifies the trustees ih seeking an opportunity to make proof of the facts and to secure the authority and instructions of the court. (See Lackland v. Walker, supra, 265 et seq., where the authorities are collated.)

The judgment should be reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below.

Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Ingraham, P. J. (concurring):

I concur with my brother Hotchkiss in his opinion and merely wish to state what I consider to be the real question that is now before us.

What the plaintiff asks for is a construction of the trust under which it holds the real property which was devised by Captain Randall’s will and which from the probate of that will in 1801 has been administered by the trustees named in the will or by the corporation created by the act of 1806, i. e., one of the plaintiffs in this action. As to whether the court will construe this will or give the trustees instruction is not now before us, the sole question being whether upon the facts stated the plaintiffs or either of them have a right to apply to a court of equity for a construction of the will and an adjudication as to the powers of the trustees. I think it clear that the testator intended to convey this real property described in the complaint to the persons that he named in his will as trustees to carry out the trust outlined in the will. If the trust was a valid trust the title to the property vested in the trustees; if it was not a valid trust the trustees took no title and the title vested in the testator’s heirs at law, or, if there were no heirs at law competent to take the real property, then the property escheated to the State.

Of course the question as to whether this was a valid trust is not before us. Certain persons claiming to be heirs at law attacked the validity of this trust and their claim to the property was defeated in the courts, which judgment was subsequently affirmed by the Supreme Court of the United States. (Inglis v. Trustees of Sailor’s Snug Harbour, 3 Pet. 137.) However that may be, for more than a hundred years this title has been held and enjoyed by the trustees named in the will or their successors, the corporation created by the Legislature of this State by the act of 1806, and there is no one now before us questioning the validity of the trust or the rightful ownership of the property by the trustee. I do not understand that the Attorney-General claims that by way of escheat or otherwise the title to this property has vested in the State, or that the State has any right to the property as its owner. And thus it seems to me there can be no doubt that the title to the property passed to the original devisees in trust to devote it to the purposes mentioned in the will. The will itself contained the provision that if this trust could not legally be carried out according to the testator’s express intention without an act of the Legislature it was his will and desire that the trustees would, as soon as possible, apply for an act of the Legislature to incorporate them for the purposes above specified. To carry out this wish of the testator the trustees in the year 1806 applied to the Legislature, which passed an act, being chapter 4 of the laws of that year. The preamble of that act recited the will of the testator; that the testator had declared his intention to be that the said estate should, at all events, be applied to the purposes mentioned and to no other; and they prayed to be incorporated for the purposes expressed in the will. It was then enacted that the trustees named in the will and then* successors by virtue of their said offices were constituted a body politic; they were declared to be capable in law of holding and disposing of the said real and personal estate according to the intention of the said will; and the same was declared to be vested in them and their successors in office for the purposes therein expressed, which involved the execution of the trust created by the will. I think it clear that by this act a corporation was created and vested with the title to the property held by the trustees to carry out the purposes of the will. Thus, so far as the State was concerned, it seems to me it released any title that it could have had by way of escheat or otherwise in the property in question to the corporation thereby created, and validated the trust if its legality was doubtful,- and the corporation thereby became the owner of the property, in trust, however, for the purposes expressed in the will of the testator. Of course, if the testator had heirs at law capable of taking the property, this act of the Legislature could not have affected their interest, and if the testator had- no heirs at law capable of taking and holding real property, the property escheated to the State, which had released its interest to the corporation as trustee for the purposes of the will. Therefore, so far as appears, title to the whole property had vested in the corporation in trust for those to be benefited as expressed by the-testator, and since that time they have exercised that trust and applied the income of the property to the purposes expressed in the will. The trustee (the-corporation) now applies to this court for a construction of the terms of the trust, and by this action has asked the court to instruct it as to the power that it has in dealing with the trust estate. It is quite clear that there is nobody interested in the execution of this trust except the beneficiaries, who are the “aged, decrepit and wom-out sailors.” The complaint alleges that the trustees have maintained an institution for the relief of sailors of this description and have expended the income for that purpose during the long period that that trust has been in existence; but it is manifestly impossible to make the class of sailors designated by the testator parties to the suit. The plaintiff has, therefore, made the Attorney-General a party, asking that he come in and assist the court in determining the matters upon which the trustees desire instruction.

I think, therefore, that the corporation is a trustee holding the real property in trust for the benefit of a certain class; that there are questions which require the construction of the terms of the trust by the court for the advantageous execution of the trust; that the trustee has the right to apply to the court for the purpose of obtaining such instruction; that there are no parties in existence interested in the maintenance of the trust, except the Attorney-General of the State, who can be made parties to the action; and the only serious question as I view it is whether the Attorney-General is a proper party to be made a defendant. That the Attorney-General is a proper party defendant is, I think, put at rest by the provisions of the Real Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], § 113, subd. 3), and I agree with what my brother Hotchkiss says upon that point.

It is quite probable that in view of the very satisfactory opinion of my brother Hotchkiss -this concurring memorandum is unnecessary, but the question presented is both unusual and interesting, and I have thought it not amiss that I indicate the process by which I have arrived at the same result.

Laughlin, Scott, Dowling and Hotchkiss, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs. 
      
       See p. 154.—[Rep.
     
      
      
        Malim v. Keighley.— [Rep.
     