
    BETTS v. BETTS.
    
      N. Y. Supreme Court, First Department; Special Term,
    
    
      November, 1876.
    
      Again,
    
    
      July, 1878.
    Will.-—Trust Estate.—Power oe Sale.—Equitable Conversion.—Vesting.—Power oe Appointment.—Gift in lieu oe Dower.—Corporation.-—Suspension of Power of Alienation.—Rents and Profits.— Apportionment.
    A direction in a will that income, rent, &c., be paid by the executors to a beneficiary, gives them power to collect.
    If a will manifests an intention that the executors should collect the rents, &c., of real property, thus constituting them trustees to receive and pay over the income, they take by implication an estate in the lands, and have power to let them.
    
    This estate or interest, however, lasts only so long as the purposes of the trust require.
    
      Where the trust was to receive rents and. profits, and apply them to the use of the beneficiary for life, with a direction to sell the lands within three years after her death, and distribute the proceeds,—Held, that the estate or interest of the trustees terminated with the death of the beneficiary for life; but the power of sale survived her death.
    
    The will directed the executors, at such time after the widow’s death as they should think best, not exceeding three years, to sell all the estate and pay gifts thereinafter declared, and a subsequent clause gave them discretionary power to sell, which was wholly unqualified in respect to time. Held, that these provisions effected an equitable conversion of the whole estate into money for all the valid purposes of the will, at the time of the death of the testator.
    This conversion is limited by an entire or partial failure of the purpose of the sale.
    The general rule is that when legacies are payable in the future, with no condition annexed, and no expressed intention to the contrary, whether the proceeds are of personal property or of real estate directed to be sold to discharge them, they vest at the death of the testator, and this though a life estate may intervene before payment. 
    
    The will gave to testator’s widow $30,000, to be disposed of by her as she might think best, by her last will and testament; but provided that in case she should not survive him, or surviving should not make any disposition of that sum, then it should be paid to persons named by the testator.
    
      Held, 1. That as the clause was entire and the words of gift distinctly qualified, it gave her merely a power of appointment.
    2. That a direction in her will, disposing of the money, was effectual, although directing it to. be received by her executors, and coupling the disposition of it with the administration of her own estate and its sufficiency to pay her legacies, 
    
    A power of appointment as to personalty, to be executed by will, “duly and properly executed,” is executed by a will made' in accordance with the law of another State, where the appointor re^ sided. 
    
    Provisions in favor of the widow may, though not so expressed, be deemed in lieu of dower, upon a general view of the will, and evidence that they have been so treated by the widow.
    A power of appointment given .to the widow together with other provisions, in lieu of dower, is exempt from abatement equally as other gifts.
    To prove incorporation under a general law, sufficient to enable the company to take a legacy, a substantial compliance with the statute in respect to organization is sufficient.
    Under the benevolent corporations act, L. 1848, p. 467, c. 319 (2 B. 8. 6 Ed. 439),—which requires the corporators to file a certificate “in which shall be stated . . . the number of trustees, directors or managers to manage the same, and the names of the trustees, directors or managers of any such society for the first year of its existence; but such certificate shall not be filed unless by the written consent and approbation of one of the justices of the supreme court, ” &c.,—the number of persons who shall manage the affairs, &c., may be deemed sufficiently stated, if the names of all are given; and the approval and filing of such a certificate is sufficient evidence of compliance with the law to justify the corpora-tors in believing their organization to be regular.
    In determining how much of his estate the testator has given to benevolent, &c., corporations organized under the act of 1848, for the purpose of applying the restriction contained in section 6,— forbidding any one leaving a wife or child or parent, to bequeath to such corporation more than one-quarter of his or her estate,— bequests to corporations other than those formed under that act, and who are not affected by the restriction of section 6, are not to be taken into account.
    
    Under charter restrictions as to the amount of property which a corporation may take and hold, the capacity of the corporation to take a bequest which might increase its property beyond the statute limit must be determined by the law in force at the time of the vesting of the bequest.
    This test applies in ascertaining both the amount of the corporate property, and the value of the bequest.
    Where the charter power of the corporation to purchase, hold and convey, is upon the express proviso that its estate shall never exceed a specified sum, its common law capacity to take personal property by bequest is abridged.
    The objection in such case is available, not only in a direct proceeding by the State, but also by a private person whose interests are affected by a transgression of the rule, such as an heir at law, in a proceeding for the settlement of the estate.
    The courts will not give effect to a transgressive bequest in excess of the amount authorized.
    Neither the increased value which would accrue to lands of a charitable institution if they were used for other purposes than their charity, nor their use for the purposes of the charity without realizing an actual income, can be regarded as “annual income,” within the meaning of the restriction in the charter of such an institution upon holding property which shall exceed a specified annual income.
    “Annual income” means annual receipts, and is not the equivalent of annual value.
    If the value of the use could be regarded as “annual income,” it „ should be computed, not with reference to the market value, but to the annual value to the corporation for the special purpose to which the property was devoted.
    A charter restriction upon the amount of property which the corporation is capable of holding, is not abrogated by a statute passed subsequent to the vesting of the bequest, confering power to take by gift, grant or devise, without any express restriction as to amount.
    
      It seems, that such restrictions, measured by annual income, are not to be construed as restrictions of the income which the corporation may take, by gifts of money or property to be used and applied toward the immediate support of the institution and its beneficiaries.
    
      It seems, that a prohibition to “take and hold,” does not forbid taking and spending.
    Societies unincorporated at the time of vesting, not allowed to take.
    A bequest to an unincorporated auxiliary society, assigned by them to a parent society which is incorporated, cannot be sustained in favor of the parent society.
    
    The Board of’Education of the City and County of New York have power to take by bequest, for the supply of a library for the College of the City of New York.
    
      The boards of trustees for common schools in the respective wards of the city of New York are corporations to the extent of holding property transferred to them for school purposes, and have power to take personal property by bequest for the benefit of their respective schools.
    Devises and bequests to trustees for the purpose of founding a library for schools create legal and valid trusts.
    Where the will, under a trust to pay the income to a beneficiary for life, directed the executors to sell the real estate at such time as they should think best, not exceeding three years after the termination of the life estate, but also contained another and unrestricted and discretionary power of sale,—Held, that there was no illegal suspension of the power of alienation, but, in legal efiect, the will contemplated distribution at the termination of the life estate.
    Directions allowing such time as may be reasonably convenient and necessary for sale, after the termination of a life estate which reaches the statutory limit of the suspension of the power of alienation, are not regarded as a postponement of the vesting of the interest in the legatee to whom the proceeds are to go.
    Under a bequest to the board of trustees of each of the several wards of the city as they may exist at the time of the final distribution of the estate,—Held, that trustees in new wards, created within the city limits after testator’s death and before final distribution, might take, but not trustees of wards created by the annexation of new territory to the city.
    A bequest to the board of trustees of each ward, in a specified sum for each “ward school above the grade of primary,”—Held, on extrinsic evidence of usage in designating schools, and of testator’s cognizance of their organization, to give the specified sum for each grammar department, even where two such departments existed in the same building and under the same member.
    If trustees holding only in trust to pay over rents and profits to a betneficiary for life, lease for a fixed term which runs beyond the termination of the life estate, and receive the rent, the rent of the quarter in which the life estate terminates should be apportioned, and so much as accrues in respect to the period within the lifetime, be paid to the representatives of the life tenant.
    Under the gifts and powers of sale above stated,—Held, that the real estate vested at testator’s death in the legatees who were then legally capable of taking real estate, subject to be divested by the execution of the power of sale, and subject to payment of the valid legacies, and to the payment to the heirs of the sums included in the invalid legacies, and that the rents and profits intermediate the termination of the life estate and the sale followed the same disposition, except that the heirs were entitled to the rents and profits corresponding to any share, invalidly bequeathed, of the residuary estate. The valid legacies, and the , $80,000 appointed by the widow's will bore interest from her death.
    Where the will effects such an equitable conversion, but part of the objects fail for incapacity of the legatees to take, the heirs at • law take, as money, the proceeds left in the executor’s hands by such partial failure.
    Testator gave to six legatees named, one of whom was held incapable of taking, “ all the rest, residue and remainder of my estate, whatever the same might be, in equal division thereof, being one equal sixth part to each person, association, institution, asylum or society mentioned.” By the next and last disposing clause, he expressed his desire that no bequest “should fail, or be rendered void by reason of the misnaming of any individual or institution, but that the same should be carried into full effect without regard to any such misnomer, if such institution can be ascertained with reasonable certainty; also, should any individual or institution named in this my will not have existence at my decease . then, in all such cases my will is that the amount so intended for such institution or individual shall lapse and be merged in my general estate, and form a part of the rest, residue and remainder thereof.”
    
      Held, 1. That the residuary gift was not to six legatees as a class, but six gifts, one sixth part to each.
    2. The gifts, whether residuary or specific, which failed for the reason that the legatees had not corporate capacity to take, did not fall into the residue, but went to the heirs at law.
    As the will stated the grounds of failure contemplated by the testator, all others were excluded.
    
    
      In an action for the construction of a will, the court may grant an extra allowance both to plaintiffs and defendants, not exceeding $2,000 in the aggregate on each side.
    In such a case, where the heirs had commenced proceedings for distribution, the costs and allowances of the executor’s action for construction were charged unequally, half upon the validly-disposed residuary fund, and the other half upon a one sixth share which had been adjudged to the heirs at law.
    Commissions of executors, under 2 B. 8. 93, § 58, are to be computed upon the principle of aggregating the sums until they reach the amount fixed by the statute.
    This section of the statute substantially adopted the rule of the court of chancery of October 16, 1817.
    The words “for receiving and paying out all sums of money not exceeding one thousand dollars,” refer to aggregate and not to separate sums.
    The addition of the word “ of,” by the amendment of 1849, in subdivision 3 of section 5, did not change the method of computation.
    An executor is entitled, under chapter 362, Laws of 1863, in addition to his commissions, to an allowance not exceeding ten dollars a day for each day engaged in preparing for accounting.
    
      No other extra allowance can be given to an executor for services.
    The receipt of sums from the sale of real estate, and investment of the same to produce income, is not such an act of “receiving and paying out ” as entitles an executor to commissions.
    Executors can receive commissions only upon the aggregate of capital and income as received once and paid out once.
    Commissions upon income, retained by an executor upon an erroneous system of calculation, -should be repaid, unless the beneficiary had such accurate knowledge of the system of charges as to amount to a ratification of, or an acquiescence in them.
    The executors having acted in good faith should not be charged interest upon such sums retained.
    An executor cannot make annual rests in his account unless he makes an actual accounting.
    When the testator’s widow is given the whole income for life, and has also qualified as executrix, she is entitled, in an estate exceeding $100,000, to commissions upon sums received and paid for the benefit of the general estate.
    Surviving executors are not entitled to commissions upon a sum paid to personal representatives of a deceased executrix for arrears of commissions due to her.
    A furnace erected in a house belonging to the testator’s estate, and occupied by his widow, who is beneficiary of the income, is for her personal comfort, and the cost must be charged to the income account. It is not a “permanent improvement.”
    Plate glass windows in a store, and a tin roof, are “ permanent improvements,” and the cost should be apportioned.
    An agent, in his account, reported to executors the sum of $475 as collected from a tenant, when it was not actually collected; and the executors, in accounting before the surrogate, credited the estate with said sum. The tenant failed, and the sum not being collected, but without fault of the agent, Held,—proper for the executors to repay it.
    Attorneys, in their bill, charged aggregate sums for aggregate work, without dividing charges into items, either of time or performance. Held, a proper form of bill in a case involving great labor.
    The fees of attorneys and counsel are to be measured by the importance and value of their services, and the responsibility imposed upon them, and not limited to the costs and extra allowance.
    Interest not allowed upon money, arising from the proceeds of real estate, and inherited by the testator’s heirs because legacies had lapsed.
    An executor, who qualifies after moneys or securities have been received by another executor, is entitled to one-half commissions thereon, allowed for “receiving,” the value of the securities being determined by the highest market quotations on the day he qualified.
    Trial by the court.
    This action was brought by Frederick J. Betts and E. C. Benedict, sole surviving executors of Ephraim Holbrook, against Greorge F. Betts and Emily Betts, executors of S. R. Betts, deceased, and twenty societies, and about two hundred individuals, and the board of education of the city of Hew York, and the board of trustees of each of the twenty-four wards of that city, and certain persons unknown, or whose names were unknown, for a construction of a will.
    The testator, who died in 1851, left a large estate, and the main features of his will were an intention and the desire not to die intestate as to any part of his property ; a provision for his wife for life by applying the income of his estate, with the exception of a few immediate pecuniary legacies, to her use ; and an intention that within three years after her death his estate should be converted into money, a large number of personal and charitable pecuniary legacies paid ; and that the residue should go to six residuary legatees. The material provisions of the will are stated more fully in the opinion in connection with the questions to which they give rise.
    After the death of the widow,-and pending proceedings before the surrogate in respect to the settlement of the estate, the heirs at law commenced an action against the executors and others, to declare many of the provisions of the will void, upon grounds which appear in the opinion; and the executors thereupon commenced this action to establish the validity of the will, to have it judicially construed, and have a final settlement of the estate; whereupon, the action of the heirs was abandoned.
    
      
      C. Wyllys Betts, on behalf of the plaintiffs (John K. Porter with him).
    I. General questions affecting the whole estate : ’ 1. The legal title to the real estate and ownership of the personal property vested in the executors between the testator’s death and that of Nancy Holbrook, with remainder to the legatees upon the latter event, subject to be' divested by execution of the power of sale. By the eleventh clause the executors are made trustees, to pay over the rents and profits to Nancy Holbrook for life. The authority to pay gives them, by implication, a power to receive the rents and profits (Carter, 25; Vail v. Vail, 4 Paige, 328; Baker v. Greenwood, 4 Mees. & Wels. 421; White v. Parker, 1 Bing. N. C. 573 ; Brewster v. Striker, 2 Comst. 19 ; Tobias v. Ketchum, 32 N. Y. 326, 332 ; 1 R. S. 727, § 47). Such an implied trust is valid under section 3 of 1 R. S. 728, § 55 (2 Comst. 297; 19 N. Y. 454). This estate, or interest in the executors, would last only so long as the purposes of the trust which created it (1 R. S. 729, § 86). At the death of Nancy Holbrook, the trust ends, and the estate with it (2 R. S. 729, § 75 ; see Manice v. Manice, 43 N. Y. 364). Where the principle of equitable conversion applies, the land descends as personal property to the “devisees,” and the heirs-at-law are excluded (Moncrief v. Ross, 50 N. Y. 431; Meakings v. Cromwell, 5 Id. 136). . “Devisee” is construed tornean “legatee” in Coope v. Banning, 1 Simons & Stuart, 536. According to Wright v. Meth. Epis. Church (Hoff. 202), the legal title at the termination of a trust under which executors take an interest in land, vests in those of the legatees who at the testator’s death were capable of taking real estate by devise (Birmingham v. Kirwan, 2 Schoales & Lefroy, 444; holding that the trust still continues. And see Tobias v. Ketchum, above). 2. All the valid legacies, both specified and residuary, vested. at the death of the testator as personal property, (a) The death of the testator marked the time at which the legacies, Tooth residuary and specified, nested. This is the rule where the estate is to be distributed immediately after the testator’s death (Van Wyck v. Bloodgood, 1 Bradf. 172; cited with approval in Parsons v. Lyman, 4 Id. 299. See also 8 Ves. 557; 11 Id. 498 ; 2 Drury & Walsh, 672; Matter of Trustees of N. Y. Prot. Epis. Public School, 31 N. Y. 589; and McKinstry v. Sanders, 2 S. C. (T. & C.] 181; affi’d in 58 N. Y. 662, on the same opinion). Where a life estate intervenes the same rule prevails. The case of Pye v. Linwood, 6 London Jur. Rep. 618, a, before Sir Knight Bruce, V. C., is directly in point. And see Shattuck v. Stedman, 2 Pick. 468; and 1 Paige, 32, above cited; Barker v. Woods, 1 Sandf. Ch. 131; Laroque v. Clark, 1 Redfield, 471 ; S. C., 1 Tuck. 33. To the same effect are the cases of Terrill v. Public Administrator, 4 Bradf. 245; Leonard v. Burr, 18 N. Y. 103; Saxton’s Est., 1 Tuck. 32; Manice v. Manice, 43 N. Y. 364; Thomas v. Anderson, 21 N. J. Eq. 22; Beatty v. Montgomery, Id. 324; Hays v. Gourley, 1 Hun, 38. See also 2 Redfield on Wills, 266-7; 2 Wms. on Ex'rs. 776; and especially in regard to residuary legacies, Staples v. D’Wolf, 8 R. I. 74; Van Wyck v. Bloodgood, 1 Bradf. 154. Where a fixed period is allowed for settlement of the estate, the rule is the same (Marsh v. Wheeler, 2 Edw. Ch. 161-2). “To,have the effect [of postponing the vesting] it must clearly appear that the time of payment is made of the substance of the gift (Manice v. Manice, 43 N. Y. 357). The exception where legacies are “charged upon land” does not apply to cases where the land is directed to be sold (Marsh v. Wheeler, 2 Edw. Ch. 155, 163-4; 1 Roper on Legacies, ch. 11; Birdsall v. Hewlett, 1 Paige, 33 [1]). ... So far as the legacies are payable out of the produce of the real estate they are vested legacies (Harris v. Ely, 7 Paige, 429; Remnant v. Hood, 2 De G. F. & J. 410). The whole estate was equitably converted, “out and out,” into money, for all purposes, at the death of the testator. Lord Thurlow thus states the principle of equity upon which this doctrine is founded : “ Where there is a trust that is always considered as done which is ordered to be done” (1 Vesey Jr. 367). The twelfth clause contained an absolute direction to sell within three years after Nancy Holbrook’s death. The eighteenth clause gives authority to sell at any time during the life estate. Where there is merely an authorization to sell, only the proceeds of land actually sold are personal property (Chamberlain v. Chamberlain, 43 N. Y. 431. See also Dodge v. Pond, 23 Id. 69). Where there is an absolute direction to sell, the land is “converted” into money “to all intents and for all purposes,” and takes such character from the death of the testator (Marsh v. Wheeler, 2 Edw. Ch. 157; Smith v. Claxton, 4 Mad. 484; Dixon v. Dawson, 2 S. & S. 327; Green v. Jackson, 5 Russ. 35; Arnold v. Gilbert, 5 Barb. 195-6-7). “ The conversion is to be considered as having taken place at the death of the testator, when the will went into effect.”
    “In some way it could be sold immediately, and therefore should be considered as sold from the testator’s death ” (Many English cases reviewed and cited; Gott v. Cook, 7 Paige, 534; citing 2 Keene, 653 ; and 1 Beav. 79 ; 2 Sandf. Ch. 341, 343; Bunce v. Vandercrift, 8 Paige, 37; Johnson v. Bennett, 39 Barb. 237; Horton v. McCoy, 47 N. Y. 21). When a life estate intervenes the rule is the same (Meakings v. Cromwell, 5 N. Y. 136, 138; Wetmore v. Parker, 52 Id. 456-7). This vesting of the legacies at the death of the testator does not, however, interfere .with the estate in the executors, as trustees, during the life of Nancy Holbrook (see Beck v. McGillis, 9 Barb. 35); the one is an interest, “ debitum in prcesenti, solvendum in futuro,” and may exist during a life estate; the other is a legal estate in the land.
    II. All the bequests in the will are valid, and all the legatees capable of taking. 1. The societies incorporated at the death of the testator, or prior to March 21, 1852, are entitled, (a) Domestic corporations. The right of corporations to take personal property by bequest existed at common law and still continues (Sherwood v. Am. Bible Soc., 4 Abb. Ct. App. Dec. 227). (b) Foreign corporations can take by bequest. (Sherwood v. American Bible Society, 4 Abb. Ct. App. Dec. 227; White v. Howard, 46 N. Y. 163).
    2. The corporations inaccurately named are all entitled to their legacies. The ancient maxim is 11 Id certum est quod cerium reddi potest.” In Smith v. Smith (4 Paige, 272), the chancellor says, on appeal: “A mere misdescription of the legatee does not render a legacy void, unless the ambiguity is such that it is impossible to ascertain, either from the will itself, or from proof dehors the will, who was intended as the object of the testator’s bounty.” Lord Hardwicke, in Minshell v. Minshell (1 Atkyns, 412), says: “A court never construes a. devise void, unless it is so absolutely dark that they cannot find out the testator’s meaning” (Banks v. Phelan, 4 Barb. 90,; Parsons v. Parsons, 1 Ves. Jun. 266, and authorities cited; Mann v. Mann, 14 Johns. 5; Roman Catholic Orph. Asylum v. Emmons, 3 Bradf. Sur. 148. See also Beaumont v. Fell, 2 Peere Wms. 140, where Gertrude Yardley was held entitled to a legacy given to Catharine Earnley ; Connolly v. Pardon, 1 Paige, 292; Gardner v. Heyer, 2 Id. 11; Smith v. Smith, 4 Id. 271; Carter v. Bloodgood, 3 Sandf. Ch. 393; Terpening v. Skinner, 29 N. Y. 505; Trustees, &c. v. Colgrove, 4 Hun, 362; Hart v. Marks, 4 Brad. 161. In respect to misnamed corporations or societies: Clark v. Mayor of Rye, 7 Taunton, 546; Queens College v. Sutton, 12 Simons, 521; Wilson v. Squire, 1 Younge & Collyer New R. 654, Chancery; Hornbeck v. American Bible Society, 2 Sandf. Ch. 135-61).
    3. The quasi corporations are authorized to receive their legacies. By act of May 14, 1840, ch. 318, § 3, “ Beal and personal estate may be granted to commissioners of common schools of any town, in trust, for the benefit of the common schools of such town.” This act did not give power to take by bequest. It was amended on July 3, 1851, by chapter 386: “ The board of education shall have power : 1st. To take and hold property, both real and personal, devised or transferred to it for the purposes of public education in the city of Hew York . . . 8th. And for the purposes of this act, the said board shall possess the powers and privileges of a corporation. Section 10. It shall be the duty of the trustees of each ward, and they shall have power: 1. To have the safe-keeping of all the property belonging to the ward schools and the ward primaries in their respective wards..... 5. To hold, as a corporation, all personal property-vested in, and transferred to them for school purposes in their respective wards.” (a) Under this act, the capacity of the board of education to talce the legacy is unquestionable, although the power lo talce by “bequest ” is not explicitly given. The word “ devised” is evidently used to give the special authorization of charter required to take legacies of real property in 2 R. S. chap. 6, § 3, title 1, art. 1. The word “ transferred” must, by implication, include not only gifts and purchases, but bequests. The powers and privileges of a corporation likewise give it the power to take by bequest, (b) The trustees of common schools are not empowered to talce real property, and the “ devised” is therefore omitted in the fifth clause of section 
      10. But the word “transferred” must be held of the same meaning here as above, and the power “ to hold as a corporation” thus applies to bequests, the power to take being necessarily implied in the power “to hold.” This bequest does not suspend the power of absolute disposition. The legacies vested at Nancy Holbrook’s death. The words “ as they may exist at the time of the final disposition of my estate” do not extend the time of vesting in possession beyond the two lives in being allowed by statute, although the twelfth clause of the will leaves the time of sale and payment of the legacies discretionary with the executors, provided it takes place within three years from the death of Mrs. Holbrook (Manice v. Manice, 43 N. Y. 314, 315, 368).
    (b) The wards and schools in existence at Nancy Holbrook’s death are entitled. This legacy is made to a class, and comes under the rule of remainders vested in a class of persons which will open to let in others of the same class. As to after-born children, see Mogg v. Mogg, 1 Mer. 654; Doe v. Provoost, 4 Johns. 65; Tanner v. Livingston, 12 Wend. 83; Conklin v. Conklin, 3 Sandf. Ch. 64; Tucker v. Bishop, 16 N. Y. 402; Smiley v. Bailey, 59 Barb. 80; Chism v. Reith, Kels. 589. For the rule applied to personal property, see Van Yechten v. Pearson, 5 Paige, 514. The same rule is applicable to a corporation (Roosevelt Hospital case; Burrill v. Boardman, 43 N. Y. 256; citing Fearne on Remainders, 536). In Ringrose v. Beamham (2 Cox, 384), it was held, however, that a gift of $100 to each of A’s children who shall attain twenty-one, will extend only to those answering the description at the testator’s death. The invalidity of a part of the bequest does not avoid the whole. The legacies to the schools in existence at Ephraim Holbrook’s death are valid, even ¿should the .others be (held void. For in the cases when 
      the invalidity of a part of the legacy defeats the whole, such as Porter v. Fox (6 Sim. 485), and Greenwood v. Roberts (15 Beav. 92), the difficulty arises from' the indivisibility of the gift to a class of persons, some of whom can take whilst others cannot; and from the fact that it cannot be ascertained what is the share of each. Hence the gift is held void as to all (Sir W. P. Wood, V. C., in Wilson v. Wilson, 4 Jur. N. S. 1077). But when the valid legacies are separable from the invalid, the former are vested (Hawley v. James, 5 Paige, 318).
    4. Special statutory prohibitions do not affect any of the above-named corporations, (a) The prohibition against talcing land by devise unUss specially authorized, does not apply where the land is equitably converted (2 R. S. 57, § 3). The legacies in the Holbrook will are bequests of money only, though derived from the proceeds of land (Wright v. Trustees of the Meth. Episc. Church, Hoffm. 202, 226, 227, 234-6, 223; Downing v. Marshall, 23 N. Y. 393. See also Theol. Sem. v. Childs, 4 Paige, 419). (b) Restrictions in the charter of corporations, or by statute, respecting the amount of property to be held, do not prevent either the vesting or the receipt of the legacies, a. Restrictions of charter. The New York Institution for the Blind, the New York Institution for the Instruction of the Deaf and Dumb, and the Orphan Asylum Society in the city of New York, were, at the time of the death of the testator, limited, in respect to the value of property, or the annual income thereof, they could take and hold. First. No one but the attorney-general can take advantage of such restrictions. Such bounds are fixed in order that, if overstepped, the State may interfere at pleasure. The title to an excess is not void, but voidable (Bogardus v. Trinity Church, 4 Sandf. Ch. 758; Humbert v. Trinity Church, 24 Wend. 587, 604, 629 ; Harpending v. Dutch Church, 16 Pet. 492-3; Vernon Society v. Hills, 6 Cow. 23; Baird v. Bank of Washington, 11 Serg. & Rawle, 418; The Banks v. Portiaux, 3 Rand. 136; Harvard College v. Boston, 104 Mass. 470, 471, 490. See also People v. Mauran, 5 Denio, 401; 2 Washb. on Real Prop. 591; 2 Inst. 722; 2 Kent Com. 283 b; Rainey v. Laing, 58 Barb. 489; Runyan v. Coster, 14 Pet. 128, and cases there reviewed). Second. By an amendment of charter before the legacy is paid, the State waives its right against the corporation (Baker v. Clarke Institute, 110 Mass. 88, 91). “Not only an enlargement of limit before that time, but the loss or expenditure of the fund previously acquired, would enable the cestui que trust to receive the entire fund contemplated by the testator. ” The charters of the above legatees have been amended, and their capacity increased. Third. The legacies vested as personal property, and the restrictions in the amount of real estate have no force or application. Fourth. The legacies vested at the testator’s death, and to determine whether the limits as to the amount of property are overstepped, the amount of the specified legacy in the one case, and the value of the residuary legacy in the other, at the testator1 s death, must be added to the amount of property then owned by the society. The societies restricted in income may hold unproductive property to any amount. Fifth. Vested legacies cannot be divested by increase of value (Humbert v. Trinity Church, 24 Wend. 629, 630. See also Van Wyck v. Bloodgood, 1 Bradf. 154). Sixth. For estimating the amount of property held by a corporation, the only true basis, in accord with the established precedents, is the value of property at the time it came into the possession of the corporation. Increase of value cannot divest it, and should not enter into the computation, (b) Restrictions by statute. The act of April 12, 1848, under which are incorporated (ch. 319) The New York Association for Improving the condition, of the Poor, The American Female Guardian Society, and The Demilt Dispensary, provides that “No person leaving a wife, or child or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth.” In respect to these limitations, objection can be made only by the attorney-general; and the legacies vested at the testator’s death, and cannot be divested by increase of value. The statute applies only to societies incorporated thereunder, and is not a general restriction upon the power of testators, like the statute of 1860 (ch. 360). The fraction is “to be computed with reference to the estate at the time of the testator’s death” (See Harris v. American Bible Society, 4 Abb. Pr. N. S. 421; reversing 46 Barb. 470).
    5. The unincorporated societies can take a legacy of money just as an individual can take a gift, (a) The capacity of the New York Association for Improving the Condition of the Poor is not affected' by a defect in the certificate of incorporation. The heirs-at-law allege that this society “was not, on March 21, 1852, legally incorporated, as the certificate did not state the number of trustees to manage its affairs for the first year ; and is not competent to take any devise, gift, or bequest.” This society was formally incorporated under the act of April 12, 1848, chap. 319, and the certificate of incorporation thereunder. The act provides that a certificate filed thereunder shall state “the number of trustees, directors, or managers, to manage the same, and the names of the trustees, directors, or managers of such society for the first year of its existence.” The certificate filed December 12, 1848, contained this statement in the following words :
    “ III. That the board of managers to manage the same shall consist of one president, five vice-presidents, one treasurer, one corresponding secretary and general agent, one recording secretary, the chairman of each advisory committee, or, as his proxy, some other member of said committee, and four members, to be chosen by said board of managers.”
    Then follow the names of the managers for the first year.
    Article 9 of the constitution says : “ The city shall be divided into twenty-two districts, each ward forming a district, and the districts be subdivided into sections. Each district shall have an advisory committee, to consist of five members ; and each section a visitor.” We maintain that this is a substantial compliance with the statute, and that so long as the number is in reality definite and can be ascertained from the statement of the certificate, the statute is complied with.
    (5) The society is duly incorporated, even if the certificate be defective. Only substantial compliance with the statute is necessary (People v. Thompson, 21 Wend. 235; Amherst Acad. v. Cowls, 6 Pick. 427; Commonw. v. Alleghany Co., 20 Penn. St. 185; Thompson v. N. Y. R. Co., 3 Sandf. Ch. 625; Moss v. McCullough, 7 Barb. 279). And where there occur breaches of any condition, expressed or implied, on which the corporation was created, the State may waive them (State v. Commercial Bank, 6 Smedes & M. 218; People v. Manhattan Co., 9 Wend. 351; State v. N. H. Turnpike, 15 N. H. 162; Angell & Ames on Corporations, § 734 [Ed. 1875]). When a society is in form incorporated, the State waives the performance of such conditions through the acts and admissions of its own officers, or is estopped from asserting their non-performance (Angell & Ames, § 756). The provision of the statute that the certificate must state the number of trustees, is 11 not fundamental but directory” (Mead v. Keeler, 24 Barb. 22-24).
    
      
      (c) The society is a corporation by prescription. “After twenty years’ unimpeached possession of a corporate franchise, no rule should be granted against the person in possession to show by what right he holds it, in analogy to other cases of limitation ” (Winchelsea Causes, 4 Burr. 1962, 2022, 2121; Rex v. Rogers, 4 Id. 2523; Rex v. Stephens, 1 Id. 433; Rex v. Bond, 2 T. R. 767; Rex v. Carter, Cowp. 58; Rex v. Binsted, Id. 75; cited by Angell & Ames on Corp. § 743). “A corporation once shown to exist is presumed to continue until the contrary is shown ” (People v. Manhattan Co., 9 Wend. 351; Angell & Ames, § 757).
    “A corporation is said to be created by prescription when it has continued to act without question as a corporate body for the period of twenty years. It is then presumed, by a fiction of law, to have had a charter which it lost (10 Coke, 29 b). This principle may be invoked when the charter was originally defective, but acts under it have been unquestioned for a long period ” (Prof. Dwight's Law Lectures). “A society which has "claimed and exercised the rights and powers of a corporation for twenty years is a corporation de facto, and as such capable of taking a legacy, though the proof of its incorporation be technically defective” (Chittenden v. Chittenden, 1 Am. Law Reg. 538. See also Robie v. Sedgwick, 35 Barb. 319 ; see also unanimous opinion in Reformed Dutch Church v. Schoolcraft, Commission of Appeals, 65 AT. T. 134). A corporation created by prescription can take by bequest (Sherwood v. Am. Bible Soc., 4 Abb. Ct. App. Dec. 227).
    
      (B) The societies actually unincorporated can tahe bequests of money. The societies unincorporated at the testator’s death were: The American Home Missionary Society ; The Marine Bible Society of New York; The General Protestant Episcopal Sunday School Union and Church Book Society; The Protestant Episcopal Tract Society; The Sabbath Tract Society of the City of New York. Of these, all but the Marine Bible Society were subsequently incorporated. But, such subsequent incorporation could not give greater power to take than was possessed at the testator’s death (White v. Howard, 46 N. Y. 163). These unincorporated societies should be regarded by the court with all possible favor, because at the date of the testator’s will, and at the time of his death, bequests to voluntary societies had been repeatedly declared valid. In Hornbeck v. American Bible Society, the chancellor says: “There is nothing in the point that unincorporated societies are incapable of receiving the bequests to them (Potter v. Chapin, 6 Paige, 639, 649; Wright v. Methodist Church, 1 Hoffm. Ch. 202; King v. Woodhull, 3 Edw. Ch. 79; 2 Id. 135).” Four years later the supreme court, in Banks v. Phelan (4 Barb. 89), thus reviewed and summed up the cases: “The legality of bequests for pious and charitable uses, though for the benefit of unincorporated associations, is so well established in this State that it is barely necessary to refer to the authorities” (See Shotwell v. Mott, 2 Sandf. Ch. 46; Robertson v. Bullions, 9 Barb. 79, 81, and cases there cited). Bearing in mind then that our statute of uses and trusts relates only to real estate, and that neither land nor trusts exist under the will of Ephraim Holbrook, we briefly review the leading cases ; showing that they have all been governed by those laws, and in most cases the bequests have been held “void for indefiniteness,” and not because, the beneficiaries were unincorporated, and that (a) A bequest of money only to an unincorporated society is under certain circumstances good (Williams v. Williams, 8 N. Y. 552). Held valid, if there is a competent trustee (Owens v. Missionary Society, 14 N. Y. 380). The intervention of a competent trustee would have saved the trust (Leonard v. Burr, which followed, in 1858, 18 N. Y. 96, no precedent). Void for remoteness (Phelps v. Pond, 23 N. Y. 69). Beekman v. Bonsor, 23 Id. 298, the court says: “ The joint authority of both decisions (Williams v. Williams and Owens v. Missionary Society), establishes these propositions: 1. That a gift to charity is maintainable in this State if made to a competent trustee, and if so defined that it can be executed as made by the donor by a judicial decree, although it may be void according to general rules of law for want of an ascertained beneficiary.”
    ' In Downing v. Marshall (23 N. Y. 366), the court states the principle that “a charitable donation, precise and definite in its purpose, void at law because the beneficiaries are unascertained, may be maintained if there be a competent trustee to take the fund and effectuate the charity.” But the society named in the will, although “an unincorporated association having a regular organization, its object being the spread of the gospel in this country,” yet to the mind of the court has no object but “ mankind in generaland it is adjudged incompetent on the ground that it is “a fluctuating body, unknown to the law, irresponsible to , the courts, and incapable of receiving a gift even for a purpose which the law may denominate charitable.” Sherwood v. American Bible Society decides against the claim of the Arcott Mission, stepping carefully in. the tracks of Downing v. Marshall, and using almost the same words. Void for uncertainty (Levy v. Levy, 33 N. Y. 97; Bascom v. Albertson, 34 Id. 584). The case of White v. Howard (46 Id. 144), relates chiefly to devises of real estate to unincorporated societies, and briefly decides against the validity of bequests to such societies, solely upon the authority of Sherwood v. American Bible Society. In Holmes v. Mead (52 Id. 332), the court says: “ The beneficiary under the trust is the minister officiating at the church named for the time being. Although the particular individual-is not named, he is so described that he is capable of being identified and distinguished from every other human being. There is nothing uncertain or indefinite in the description. A cestui que trust need not necessarily be described by name ; any other designation or description by which he may be identified will do as well. The legacy is for the support, that is, for the benefit, of the person who shall officiate as the minister of that church, and it is no objection that the individuals may change every year or with every moon. . . . It is not material that the legatee should be definitely ascertained and known at the date of the will or even at the death of the testator.” From this review of the cases, and of the provisions of the wills therein construed, it appears that in most of the decisions usually quoted as disallowing the claims of unincorporated societies the bequests were void for uncertainty; that Downing y. Marshall, and the two cases dependent upon it, are the only ones in which the question has been fairly before the court, and which have contained flat contradictions of the rule that such societies can take by bequest; and that of these cases, Downing y. Marshall is the only independent decision. That in Downing y. Marshall and Owens y. Missionary Society, although the bequests are directly to the societies, the ground of the decision is that a charitable use cannot be administered when the beneficiary is a “voluntary and fluctuating body,” unless there is a competent trustee. That all the cases regard the bequest or devise as a trust, as a permanent fund, for the proper vesting and- administration of which the court is responsible. That in Bascom y. Albertson and Holmes y. Mead, although the legacies are void for other reasons, it is held, that a charitable bequest is good when there is a competent trustee, and where the beneficiary can be ascertained with certainty. That until it became the fashion to treat such bequests as trusts, the courts always decided in favor of unincorporated societies.
    We maintain, then: First. That the law now is, that during two lives in being a charitable use of money in favor of an unnamed but definitely described beneficiary, is good where there are competent trustees. Second. That if a payment is valid, it makes no difference whether it be principal or interest. If a trustee can pay five hundred dollars a year interest to the rector of St. Mary’s Church, then an executor can pay five hundred dollars principal once for all. Third. That an unincorporated society, when acting under a definite constitution, with well defined objects, and stated qualifications or acts requisite for membership, is a beneficiary that can be definitely ascertained. The persons who compose such a society are no more “fluctuating” than are the “successors” of the original members of a corporation. A constitution limits the powers, declares the objects, and perfects the organization of a society, fully as well as does a charter. The New York Association for Improving the Condition of the Poor, for instance, even if not properly incorporated, is fully as stable a body as it would be if the defect in its charter did not exist. The members may “change with every moon,” but who those members are at any given time, can be as easily ascertained, as who is rector of St. Mary’s Church. They are “distinguished from every other human being” by their very membership. Nor can an absolute gift be questioned because an unincorporated society is irresponsible to the court. The law has nothing to do with the application of the money to the purposes of the society. The law decrees it to him who happens to be rector, or to those who happen to be members at the time of payment. Its use or misuse is the risk taken by the testator. His directions must be carried out, even though no one is the better for it. He must be
    
      assumed to know what he wants. His motives cannot be questioned (Howland v. Union Theol. Sem., 5 N. Y. 217); nor can the wisdom of his bequest (Watson v. Donnelly, 28 Barb. 655). He may direct his papers to be burned, whether they be letters or bonds, and the court is bound to carry out the direction, unless it should be adjudged evidence of insanity, or against public policy; or he may direct his private locker to be sunk in the sea. So then the mist of trusts and permanent funds vanishes; and we see that principal can be paid as well as interest; that an executor can pay as well as a trustee; that a direct gift is valid to an unincorporated society, if so organized as to control its own membership. Fourth. We refer the court to the statute of 1860 in regard to wills (ch. 360), which clearly recognizes the validity of bequests to unincorporated societies.
    (5) All the unincorporated societies named in the will are organized under definite constitutions, with well-defined objects, and the members are definite persons.
    
      (c) The Marine Bible Society was a branch of the American Bible Society, and the latter is now entitled to the legacy. Its constitution says: “This Society shall be styled The Marine Bible Society of Hew York, auxiliary to the American Bible Society.” The constitution of the American Bible Society, adopted 1816, contains these words in the third article: “The officers of all such Bible societies as shall agree to place their surplus revenue, after supplying their own districts with the Bible, at the disposal of this society, shall be entitled to vote at all meetings of the society.” In the first section of the act to incorporate the American Bible Society, we find that: “All such persons as now are, or may hereafter become members of the American Bible Society . . . shall be and are hereby constituted a body corporate,” «fee. The Marine Bible Society was therefore so far a part of the American Bible Society as to share the privileges of its incorporation. In Wright v. Meth. Ch., the court says, “ This society in John street existed as a portion of the whole Methodist Episcopal Church in the city of New York. It has, of course, some separate organization, a separate minister, some separate officers, although governed by the general board of trustees. That board may be treated as the agent of this distinct portion of the church ” (Hoffm. Ch. 237-8). Sherwood v. American Bible Society (4 Abb. Ct. App. Dec. 227), is not a precedent, since the society of which the Arcot Mission was a branch, was not incorporated. That a corporation may be a trustee for the distribution of personal property, is held in Meadville Theol. Sem. v. Brooks (3 Luz. Leg. Obs. 172). The Marine Bible Society assigned the legacy to the American Bible Society. That a vested remainder in personal property can be assigned, see Lawrence v. Bayard, 7 Paige, 70; Parmelee v. Cameron, 41 N. Y. 392.
    6. The bequests to personal legatees are valid, and vested at the testator’s death. The $30,000 in the eleventh clause is validly bequeathed, and is validly disposed of by the will of Nancy Holbrook. The difficulties of this clause arise chiefly from its peculiar wording. Taken literally, it contains first, an absolute bequest of $30,000 from the fund in which the legatee already has a life estate. Then follows a power of appointment by will. a. It is valid either as an absolute bequest or as a power of appointment. Many decisions are found to the effect that when a gift of the interest of property bequeathed is accompanied by an absolute power of disposition, the whole estate vests' in possession (Hanson v. Graham, 6 Ves. 250; Hixon v. Oliver, 13 Id. 108; Robinson v. Dusgate, 2 Ver. 180; Maskelyne v. Maskelyne, Amb. 750; Floyd v. Fitcher, 38 Barb. 413; Jackson v. Robins, 16 Johns. 537, 587 ; Helmer v. Shoemaker, 22 Wend. 137; Jackson v. Coleman, 2 Johns. 391; Sweet v. Chase, 2 N. Y. 73). If. the legacy is thus given absolutely, the superadded power of appointment will not restrict the estate of the legatee (Crocheron v. Jaques, 3 Edw. Ch. 207). In 5 Sandf. 467, such superadded power is held void in favor of construing it as a power. On the other hand see Jackson v. Robins, 16 Johns. 537, 585 ; Lord Eldon in 1802, to the same effect, in Nannock v. Horton, 7 Ves. 398 ; Bradley v. Westcott, 13 Id. 452-3 ; Magoffen v. Patton, 3 Edw. Ch. 65, 68; Roper on Legacies, 430. A trustee may be a beneficiary also (Amory v. Lord, 9 N. Y. 412). Other cases of such powers of appointment will be found in 2 Br. C. C. 585, 587; 26 Beav. 174; 2 Jur. N. S. 383; 4 Russ. 263; Bolton v. De Peyster, 25 Barb. 539. If it is an absolute gift, the limitations over, in case of the invalidity of Mrs. Holbrook’s will, are void (16 Johns. 537; 22 Wend. 137; 28 Barb. 409; 15 Johns. 169; 1 Sandf. Ch. 274; 2 Barb. 534); and the legacies lapse.
    But it is a well-established maxim, that the intention of the testator, as gathered from the whole will, most govern its construction (McCartee v. Orphan Asylum, 9 Cow. 442; Covenhoven v. Shuler, 2 Paige, 122; Crosby v. Wendell, 6 Id. 548; Hawn v. Banks, 4 Edw. Ch. 664; Heard v. Case, 23 How. Pr. 546; 2 B. & A. 448; 1 Munf. 537 ; 4 Hen. & Munf. 288; 3 Ves. 103 ; 6 Id. 102). Construing, therefore, the whole of the eleventh clause together, it appears that the testator did not intend to except this sum of $30,000 from that whole estate, the income of which he had just given. Fancy Holbrook had merely a power of appointment ; and the validity of such a power is established.
    III. Interest upon the specified legacies is due from the time at which they are payable. 1. The precedents. The general rule, in cases where no life estate intervenes, allows interest upon the legacies after one year from the testator’s death (Hawley v. James, 5 Paige, 318, 470; Hepburn v. Hepburn, 2 Bradf. Sur. 74, 76). The legacies cannot bear interest from the death of the testator (See Wigram on Wills, 343-4). The reason for postponing the payment of interest for one year, when no life estate intervenes, arises from the rule that a legacy does not draw interest until it is legally payable (Estate of Fish, 1 Tuck. 122; 3 Ves. 73; Bradner v. Faulkner, 12 N. Y. 476; 3 Atk. 695). And the time at which a legacy is “ legally payable ” was originally held to be one year from the testator’s death (Sitwell v. Bernard, 6 Ves. 539). By our statute the executors are allowed one year from the granting of letters testamentary, in which to settle the affairs of an estate before paying legacies (2 R. S. 90, § 48 ; see Campbell v. Cowdrey, 31 How. Pr. 172). It is now the law in New York that “no interest will accrue until it becomes by law the duty of the executors to pay the legacy” (Bradner v. Faulkner, 12 N. Y. 476). But in cases where an intervening estate postpones payment for more than a year after the testator’s death, the executors are not allowed the year for settlement (3 Peere Williams, 478; 5 Paige, 573). If, however, the will gives a definite time for settlement, the rule may be different. Chancellor Kent lays down the rule that although legacies are made payable at a future day, they do not carry interest until after they are payable (Lupton n. Lupton, 2 Johns. Ch. 614). In Fitzgerald v. Jervoise, certain legacies were bequeathed out of the produce of real estate, and the residue was to be invested and paid to A for life. It was held, that A took interest from the death of the tenant for life (5 Madd. 25). 2. The effect of the provisions of the Holbrook will. The three years allowed for settlement in the twelfth clause of the will are for the interest of the legatees. The testator’s one wish is, that the estate may not be sacrificed by a hasty sale. The. expressed desire to secure “ the largest aggregate amount,” and the limitation of the discretion to three years, and the words “without delay” sufficiently indicate this. It has been held, that delay in disposing of the funds from which a legacy is to be paid when there is no specific direction in the will, will not postpone the right to interest (Pearson v. Pearson, 1 Schoales & Lefroy, 10). On the other hand, it maybe said that the time of payment is postponed until all of the estate is actually sold; and that, though, for the purpose of vesting, the estate is equitably converted on account of the manifest intention of the testator; yet, to determine the time of paying, the discretion has full force. Since, however, the revised statutes (2 R. S. 114, § 9), allow actions to recover legacies after one year from the granting of letters, provided “ that there be more than sufficient assets in the hands of any executor or administrator to discharge the debts of the testator,” and there is no requirement that there shall be a sufficient fund for the payment of all of the legacies; and sections 11 and 13 expressly provide for the protection of other legatees, not joining in the action, in case the assets are not sufficient to pay all, it seems that there is ground for holding that interest is due from Nancy Holbrook’s death. In Hawley v. James, 5 Paige, 318, this clause of the statute is construed to mean that a year is allowed “except in those cases when other directions are given by the testator.”
    IV. The residue ; what it includes and who is entitled to it. It includes : 1. Void legacies. 2. The income from the death of the life tenant. 3. The ownership of shares of such residuary legatees as may be held incapable of taking.
    (1.) All void legacies fall into the residue. The words of the general residuary clause, the sixteenth, are these: “I give, devise, and bequeath unto the Hon. Samuel E. Betts, &c., all the rest, residue, and remainder of my estate, whatever the same may be, in equal division thereof, being one equal sixth part to each person, association, institution, asylum, or society mentioned in this article.” The heirs-at-law claim that as to all void legacies the property still continues real estate, and vests in them. For invalid devises, indeed, this has always been the rule (Walker v. Parker, 13 Pet. 166; 2 Barb. Ch. 506; 43 N. Y. 488. See, however, Youngs v. Youngs, 45 Id. 254). And the reason is, that all devises of lands are “ specific,” and the very existence of the residuary clause, therefore, directly excludes them (Gibbons v. Eyden, L. R. 7 Eq. 371; Clark v. Clark, 11 Jur. N. S. 820). In respect to personal property : The rule of the common law, which has come down- to us supported by all the decisions, is, that a residue includes all that may fall into it by lapse or invalid disposition, or acquirement after the date of the will (2 Wms. on Ex’rs. 1312, 1314, *1313, *1314 ; Easums v. Appleford, 5 Mylne & Craig, 61-2; King v. Woodhull, 3 Edw. Ch. 83; Bowers v. Smith, 10 Paige, 193-201; Banks v. Phelan, 4 Barb. 80-90 ; 2 Roper on Leg. 453; James v. James, 4 Paige, 117; Bowers v. Smith, 10 Id. 193; Banks v. Phelan, 4 Barb. 80; Peay v. Barber, 1 Hill Ch. 95). When land is directed to be sold and legacies paid out of the proceeds, the lapsed legacies follow the law of personal and not of real property, and fall into the residue (Bartholemew v. Meredith, 1 Vern. 276; Yates v. Compton, 2 Peere Wms. 308; Smith v. Claxton, 4 Madd. 491; King v. Woodhull, 3 Edw. Ch. 82). Such lapsed legacies are never held to continue real estate, except when the conversion is only authorized, not directed, ór else when the sale is only for certain special purposes, and not directed “ out and out.” Under the absolute direction of this will, the land is money for all purposes (See above). The residue, therefore, includes all of the principal of this estate remaining after the valid legacies are paid. This residue, having vested at the testator’s death, cannot be divested by increase of value (Van Wyck v. Bloodgood, 1 Bradf. 154; 2 Edw. 156 ; 1 Sandf. Ch. 129; Sliech v. Torrington, 2 Ves. Sr. 560). The will of Ephraim Holbrook, however, differs from all of these in expressing that which the law generally implies. The intention of the testator is stated in the seventeenth clause in the clearest language possible: that all invalid legacies “shall lapse, and be merged in my general estate, and form a part of the rest, residue, and remainder thereof.” Under such a direction, even void devises of reiil estate would be included in the “residue.” For this would amount to a new devise of the property to the residuary legatee in the event of invalidity.
    2. The income from the termination of the life estate. The eleventh clause gives the whole income to Nancy Holbrook for life. But after her death, the heirs-at-law claim that it is vested in them. In opposition to this claim must be considered: (a) The testator's evident intention to dispose of all of his estate, is sufficient to include the income in the residue. In the opening clause of the will, he clearly states this intention. In the sixteenth clause he disposes of ‘ ‘ all the rest, residue, and remainder of my estate, whatever the ' same may be. In the seventeenth section he further provides against every contingency which might cause intestacy. The courts are inclined to construe wills so that a testator shall not die intestate as to any part of his estate (See King v. Woodhull, 3 Edw. Ch. 82; Vernon v. Vernon, 53 N. Y. 351). This rule has been carried so far, that an expression of intention to dispose of the whole estate has been held even to enlarge a general devise into a fee (Van Derzee v. Van Derzee, 30 Barb. 331). Much more must it be held to include in “the residue” an important, but unspecified part of the estate to be finally distributed.
    
      (b) The decisions upon the ownership of rents and profits not expressly disposed of by will areuniformly against the heir-at-law. (a) The following cases hold that rents and profits not expressly disposed of sink into the residue: Nichols v. Osborn, 2 Peere Williams, 420; Trevanion v. Vivian, 2 Ves. Sen. 430; Wyndham v. Wyndham, 3 Brown Ch. Cas. 57, Lord Thurlow; Shaw v. Cunliffe, 4 Id. 144, Lord Comm’r Eyre; 2 Salk. 415; 1 Eq. Ca. Abr. 295; 3 Peere Wms. 20; 2 Atk. 41; 3 Id. 504; 14 Vesey, 389; 6 Id. 239; 1 Vesey Sen. 485; 3 Atk. 58; 3 Mad. 161). In Wagstaff v. Lowerre (23 Barb. 209), the court say (page 218): If the intervening rents and income, from the death of the testator up to the time of the division, are in truth undisposed of, they fall into the residue of the real and personal estates respectively (2 Ves. 121; 4 Kent Com. 284; 1 Barb. Ch. 409). In Manice v. Manice (43 N. Y. 303), it was held that income undisposed of went to the legatees as tenant in common, (pp. 363, 366). Moncrief v. Ross (50 N. Y. 431), held that any income derived from the real estate- before sale in equity, clearly belonged to the legatees. From this case it appears that as the executors have no interest in the property after Nancy Holbrook’s death, the estate therefore descends to the legatees, residuary and particular, named in the will, and they divide the income pro rata, according to the amounts of their legacies (See also Wright v. Trustees of the Methodist Episcopal Church, Hoffm. 202, 232-3).
    3. The residuary legatees who were in being and capable of taking, on March 21, 1852, divide the whole residue. The testator gives to six residuary legatees, “all the rest, residue, and remainder of my estate, whatever the same may be, in equal divisions thereof, being one equal sixth part to each person, association, institution, asylum, or society mentioned in this article.” (a) Decisions upon “ the residue of the residue.” The rulings in England have held that if there are words of severance, such as, “to each a sixth part” (4 Ves. 554), or “share and share alike” (3 P. W. 331), (see other cases in first American decision below), the estate is held “in common,” and there is no “ survivorshipbut without special words of severance, the legatees hold as “joint tenants” (9 Ves. 598; Id. 204; Cheslyn v. Creswell, 6 Brown P. C. 1; Bagwell v. Dey, 1 Peere Wms. 700; Hunt v. Berkley, Mosel, 48; Skrymsher v. Northcote, Wils. Ch. 248; Ackroyd v. Smithson, 1 Brown Ch. 503). Floyd v. Barker (1 Paige, 482), and Hart v. Marks (4 Brady, 162), follow the English decisions without argument. In Beekman v. Bonsor (23 N. Y. 575), the executor first directs his executors, “if there be sufficient funds,” to establish and erect a dispensary, “and should there be any overplus, my executors may give it to any other charitable societies for relieving the comfortless and indigent, they may select.” The court, after deciding the bequest for a dispensary void for uncertainty of amount, quotes from Skrmysher v. Northcote (1 Swanst. 570); “It seems clear on the authorities that a part of the residue of which the disposition fails, will not accrue in augmentation of the remaining parts as a residue of a residue ; but instead of resuming the nature of a residue, devolves as undisposed of (Ward on Leg. 33, and cases cited, 18 Law Lib.; Floyd v. Barker, 1 Paige, 480; Attorney-General v. Davis, 9 Ves. 535).” It is clear then that if the first bequest had been definite in amount, and the legatees capable of taking, both legacies would have been valid. See King v. Strong (9 Paige, 94), a case exactly in point.
    The court, therefore, was not called upon to pass, and did not pass, upon the question, whether the remainder of the residue would have included a sum definite in amount but invalidly bequeathed. The words above quoted, therefore, are merely obiter dicta. Between this will and that of Ephraim Holbrook, is this distinction also, that the former makes a bequest which may, or may not include the whole residue, and the second bequest is, therefore, entirely contingent upon the existence of an “ultimate remainder.” . Such provisions, therefore, do not make a 1 ‘ residue of the residue” in the sense of the cases cited, but two distinct residuary legacies, the first absorbing all the residue up to a certain limit, and the second contingent upon the existence of a surplus. The former could not possibly lapse into the latter. This case, therefore, is not a precedent for us. In Downing v. Marshall (23 N. Y. 366), the societies are not directly made legatees of the residue, as in the Holbrook will, but the property is given to the executors in trust to distribute in certain given proportions, and. this trust must be strictly executed. It is therefore not a precedent for the Holbrook will. White v. Howard (46 N. Y. 144), was exactly similar. After deciding that four of the six corporations were incapable of taking, the court refers to the provisions of the revised statutes in regard to trusts (1 I. 8. 729), and says: “ Section 62 provides, that when an express trust is created, every estate or interest not embraced in this trust, ‘ and not otherwise disposed of, shall remain in or revert to the person creating the trust, or his heirs, as a legal estate. A remainder of four sixths of the real estate, contingent upon the death of the daughter, leaving no. descendant her surviving, was not embraced in the trust, as the devisees were incapable of taking, and this remainder was not disposed of by the will.’ ” The three decisions of the court of appeals upon invalid bequests of residue, are therefore not precedents for this case. We find, therefore, that the question has only been considered once in the surrogate’s court, in 1856, and once by the chancellor, in 1829. In these two American decisions, it will be seen that the first in time is grounded entirely upon the English cases there cited; the second cites no cases, but uses their language ; and neither case considers the question at any length.
    (5) The true principle. Upon reference to the English cases it appears that the decisions are based upon—(a) The wish to carry out a constructive intention of the testator. (5) The theory that, with words of severance, the residue was held by the legatees as tenants-in-common.
    
      (a) In all of these decisions the courts have made a special effort to discover the intention of the testator. They have argued, that where there are words of severance, such as “one sixth to each,” or “share and share alike,” then the testator intended that the legatees should have their share given them and no more ; that is to say, he intended that, in the event of incapacity to take, then his heirs-at-law should take. On the other hand, if there are no words of severance connected with the names of the legatees, then the testator intended that the survivor should take the whole. In Gardner v. Printup (2 Barb. 89), the will simply names the legatees, without other words, and the supreme court says : “It seems to be well settled by the authorities, that when a legacy is given to two or more persons jointly, as here, the survivor will take the whole, although the others die in the lifetime of the testator. It has ever been held that this conse.quence will follow, notwithstanding the testator revoked the interest originally given to either of them ; for each is a taker of the whole, but not solely ; for the whole is bequeathed to both, and not a moiety to each (See 2 Atk. 220; Amb. 126, 175; 3 Ves. 629, 632; 1 Vern. 217, 425; 3 Bro. C. C. 15; Dickens, 392).” The court then proceeded to speak of what was the testator’s intention. In cases where the legacy is valid as to all legatees, and vests in possession, the courts have rightly applied the intention to determine the quality of the property according to the presence or absence of words of severance (see 2 Kent, 350, and cases cited): But where the intention to give cannot make a legacy valid, the intention to give in common or in severalty fails also. For it is most plain that the intention of the testator, either to create a survivorship or to prevent one, does not exist in any of these wills. It may safely be said, that the death of any of the legatees before himself, or their incapacity to take, does not once occur to the testator while making the bequest; for in that case he would provide for such a contingency. The courts have arbitrarily construed these intentions, without respecting the evident intention to dispose of the whole estate, often expressed, and always shown in the very existence of a residuary clause. Words which describe what share the testator expected that each legatee would take, cannot be held to control the pre-eminent intention of the words, “I give the residue of my estate.”
    (6) The other theory governing the cases is, that words of severance, or the lack of them, create respectively “tenancy in common ” and “joint tenancy ” in the residuary legacy. Such a distinction is both arbitrary and illogical. There is, in fact, no tenancy whatever. Expectant estates cannot be held in common, nor be governed by the laws of common property. The principle of survivorship cannot exist in property not in posssssion. Yet it is where one “joint tenant ” dies before either becomes possessed, that this theory of a “ survivorship ” makes its appearance. Again: in wills where words of severance appear, the courts have argued as if the one sixth, or other share which a deceased or incapable legatee would have taken if living and capable, vested, at the death of the testator, in him in common with the living and capable, and then lapsed ; and as if the others could not take it, because their sixths were vested as sixths. This is not true. If one of two residuary legatees is dead or incapacitated at the testator’s death, he is as though he never had been named. He has not, and never had any share, from the time the words were written; and to call him a tenant in common or in severalty is but a perversion of language.
    “A tenancy in common is where two or more hold possession of lands or tenements at the same time, by several and distinct titles ” (1 Washburn on Real Property, 562-3, and cases cited, p. 563). But there can be neither a tenancy in common, nor a common interest, nor a joint tenancy and survivorship, in a mere expectancy. The common talk about a “residue of a residue” is merely talk. There is and can be no such residue of a residue, except where there is first a stated amount given out of the residue, and then a bequest of the “ ultimate remainder” contingent upon the existence of a surplus. See a valid bequest of such an ultimate remainder in King v. Strong (9 Paige, 94). The true principle is that when given as a whole, even though there are words of severance, the residue vests, as a whole and not by fractions, in all the objects of the testator’s bounty who are capable of taking ; it is one and indivisible until after it has vested ; and there can then be no residue of the residue, except by the expressed intention of the testator.
    
      (c) The will of Ephraim Holbrook contains a second residuary clause. After the particular legacies in the eleventh, thirteenth, fourteenth, and fifteenth clauses, and also after the residuary legacies in the sixteenth clause, the testator makes final disposition in the seventeenth clause. This refers to all of the “ bequests contained in this my will,” including, of course, the residuary bequests. It covers, for instance, the misnomer of the Hew York Association for Improving the Condition of the Poor, which is rightly named in the fifteenth clause, but in the sixteenth called the New York Association for the Improvement of the Condition of the Poor, as well as the misnomer of the Orphan Asylum Society in the city of New York, here called “ The New York Protestant Orphan Asylum.” If it could be held that either of these misnamed societies are “not to be ascertained with reasonable certainty,” or' were “named in mistake, there having been no such institution,” then both the particular and the residuary bequests of these societies would, by the terms of this seventeenth clause, “be merged in the [my] general estate, and form a part of the rest, residue, and remainder thereof.” The same result will follow if it be held that any of the societies, by reason of being unincorporated, are incapable of taking. For upon the theory of their incapacity they did not, in law, “have existence at my (the testator’s) decease.” This is the meaning of the testator, for he referred only to an existence which would enable them to take. This supplementary residuary bequest clearly •expresses the intention that the residue should be swelled by lapse caused by incapacity and invalidity of every sort. The testator specifies every reason for invalidity which then existed ; for, as we have shown, the highest courts of the State, up to the time of his death, had repeatedly decided that unincorporated societies could take by bequest, and that restrictions of charter, as to the amount of property, were lawful weapons only in the hands of the attorney-general. The words of the will are broad enough to cover incapacity from want of incorporation; for such incapacity can be decreed only upon the ground that the societies did not legally, for the purposes of the will, “have existence.”
    
      2. The testator’s clearly expressed intention to dispose of his whole estate, is sufficient to overcome the effect which otherwise might be given to the words “ one sixth to each.” Such an expression of intention operates to enlarge an indefinite devise into a fee (Van Derzee v. Van Derzee, 30 Barb. 331; Earl v. Grim, 1 Johns. Ch. 494; Charter v. Otis, 41 Barb. 529. All parts of a will are to be construed in relation to each other (Van Kleek v. Dutch Church, 20 Wend. 457; 1 Burr. 38; 4 T. R. 82; 8 Id.; 5 Powell, 6. See also Penwarden v. Gilbert, 3 Brod. & Bing. 86, 89; 6 Moore, 268; Ibbetson v. Beckwith, Ca. Temp. Talbot, 157, 160; 2 Roper on Leg. 1462; Arab. 577; 2 Redf. on Wills, 116 ; Vernon v. Vernon, 53 N. Y. 361; Ward on Legacies, 11-12 [2 Law Lib. N. S.]; Wadley v. North, 3 Ves. Jr. 367; Phillips v. Chamberlaine, 4 Id. 51, 49; Booth v. Booth, 4 Id. 407; Wetmore v. Parker, 52 N. Y. 464). The rule that a construction will not be favored, which will disinherit the heirs, is not applied when the intention to disinherit is clearly expressed (Scott v. Guernsey, 48 N. Y. 121). To an intention so plainly expressed, the court “is bound to give effect” (Covenhoven v. Shuler, 2 Paige, 122; Crosby v. Wendell, 6 Id. 548; Hawn v. Banks, 4 Edw. Ch. 664). “The court is bound to give effect to every word of the will without change or objection, provided an effect can be given to it, not inconsistent with the general intent of the whole will taken together ” (Taylor Precedents of Wills, 407; citing 3 Ves. 105; 6 Id. 102; 2 B. & A. 448. See also, 4 Hen. & Munf. 288; 1 Munf. 537). “In the interpretation of wills, such construction is to be given as to give effect to every expression the will contains, if it may be done” (Carter v. Hunt, 40 Barb. 91). “The general rule of exposition is, that the intention of the testator, so far as it can be ascertained from the whole will taken together, must govern ” (Rathbone v. Dyckman, 3 Paige, 26. See Heard v. Case, 23 How. Pr. 546; Taggart v. Murray, 53 N. Y. 233; McCartee v. Orphan Asylum, 9 Cow. 442; 1 Johns. Ch. 494, 496-8; citing Mr. Justice Buller, in Smith v. Coffin, 2 H. Black, 444; Van Kleeck v. Dutch Church, 20 Wend. 457, 471; 1 Burr. 38; 4 T. R. 82; 8 Id. 5; Powell, 6). The seventeenth clause of the Holbrook will in the plainest terms, and taking the language in its most obvious sense, expresses an intention to provide against the invalidity of the residuary, as well as that of the particular bequests. If a residue of the residue is possible it is therefore here validly disposed of. The first residuary clause bequeathes to the legatees there named “all the rest, residue, and remainder of my estate, whatever the same may be, in equal division thereof and the seventeenth clause designates more particularly what it “ may be” and who may take it. The words of the sixteenth clause, “an equal sixth part to each,” can not prevail over the intention to dispose of the whole estate so often expressed. They can not be extended beyond their immediate connection in their own clause; for the testator had not yet commenced to contemplate and provide for the contingency of the non-existence of some of the legatees at Ms decease. The words apply and have meaning only in case there are six legatees, and are words of description, and not of limitation. The gift of a residue is a gift of unlimited character; it may be small, or it may be great. No words of limitation can be predicated to the testator, for there could have been no intention to set a limit. And the same result follows, even if the words “ one sixth to each ” are extended to the residue of the residue. For each capacitated legatee will take one sixth of the lapsed shares, and the remaining fraction will again lapse, to be again divided ad infinitum.
    
    
      (d) The latest decision of the court of appeals establishes the rule that such residuary legatees as are capable of taking divide the whole residue, notwithstanding “ words of severance.” In Chamberlain v. 
      Chamberlain (43 N. Y. 494), the residue was to be equally divided between the Centennary Fund Society and the Chamberlain Institute (3 Lansing, 353-5). The court of appeals held that “ they were not respectively and severally limited to the one-half of that part of the estate which could be given by will to the purposes named, but that if one, by reason of its restricted corporate power, could not take the full one-half of that part of the estate which could go to educational or charitable purposes, the other could take, to the extent of its corporate capacity, the. entire residue of such part of the estate.” “ If the Chamberlain Institute, by reason of the restrictions imposed by law upon its capacity to take and hold property, shall be incapable to take and hold its one-fourth of the estate of the testator, after the payment of debts, &c., the Centennary Fund Society will be entitled to take, to the extent of its capacity, the residue of the one-half of the estate effectually bequeathed by the eighteenth clause of the will to those two corporations.” This decision abolishes the doctrine of an undisposed-of “residue of the residue,” and of a “tenancy-in-common,” and establishes the rule that the residuary legatees named are entitled to divide the whole residue, according to their various capacities, and that each one is capable of taking the whole in case of the incapacity of the rest, even though the testator has designated certain fractional parts as the share of each.
    
      George F. Betts, on behalf of representatives of Samuel R. Betts.
    It is the wish of the representatives of Samuel R. Betts, deceased, that in every particular the will of Mr. Holbrook should be carried into effect. They desire that the court should extend to the utmost its powers, equitable as well as legal, to give force to each bequest contained in the will. But if there be any bequests invalid or void, such invalid or void legacies pass to the residuary legatees. The brief of plaintiffs’ counsel is adopted on behalf of these defendants; and in addition thereto, the following points are submitted :—I. The whole estate was equitably converted, “out and out,” into money for all purposes, at the death of the testator (Plaintiff’s Brief ; also Hatch v. Bassett, 52 N. Y. 359; Dodge v. Pond, 23 Id. 69).
    . II. All the specified legacies that are void or invalid pass to the residuary legatees (Plaintiff’s Brief; also 2 Redfield on Wills, 442).
    
    III. The income, from the termination of the life estate passes to the residuary legatees (Executors’ Brief; Williamson v. Williamson, 6 Paige, 298; Bullock v. Stones, 2 Ves. Sr. 521; O’Hara Construction of Wills, 343; Ruppert’s Estate, 1 Tucker, 480; Firth v. Denny, 2 Allen (84 Mass.) 471; Cushman v. Horton, 59 N. Y. 155; Wagstaff v. Lowerre, 23 Barb. 200; O’Brien v. Heeney, 2 Edw. Ch. 242).
    IV. If any of the residuary legatees are incapable of taking, their portions of the residue pass to the other residuary legatees who are capable of taking. 1. The authorities sustain this proposition (Chamberlain v. Chamberlain, 43 N. Y. 447, note in connection with eighteenth clause of will; Hoppock v. Tucker, 59 N. Y. 202; King v. Strong, 9 Paige, 94; Evans v. Field, 8 Law J. N. S. 264; Clark v. Phillips, 21 Eng. L. & Eg. 124; Shaw v. McMahon, 4 Drury & Warren, 431; Harris v. Davis, 1 Collyer, 416). 2. There is no difference in principle between a specified legacy that is invalid and a residuary one that is invalid. 3. As to the cases of Cheslyn v. Cresswell, Skrymsher v. North cote, and the English cases that follow them, it is submitted: 1. That in those cases the wills sought to disinherit a child. 2. That in those cases there was a revocation and no new words of gift, which implied that the testator did not intend to give this portion (Pierpont v. Patrick, 53 N. Y. 591). 4. As to the American cases : Beekman v. Bonsor is open to the objections (besides those that plaintiff’s counsel has urged), that it was not a gift of residue among residuary legatees (See Falkner v. Butler, Ambl. 514; Carter v. Taggart, 16 Sim. 423; Re Harrie’s Trust, Johns. (Eng.) 199.
    The case was not argued by private parties interested, but only by the attorney-general for the State (White v. Howard, 46 N. Y. 144), and did not raise this point because the two residuary legatees who could take did not appeal. And the court say expressly in their opinion that, if they had appealed, the decree would have been modified in some respects in their favor (p. 169). It carries, therefore, only the weight of a decision at general term on this point. But whatever weight these cases might once have had they are certainly controlled by the later cases of Chamberlain v. Chamberlain, 43 N. Y. 447, and Hoppock v. Tucker, 59 Id. 202. 5. Precedents should not control in the construction of wills (Ch. J. Marshall, in Smith v. Bell, 6 Pet. 80 ; Lyon v. Acker, 33 Conn. 225; 1 Redfield on Wills, 423). 6. As to disposition of a residuary legacy, as well as of a specified legacy, the intent of the testator, as gathered from the whole will, including the introduction and the ninth and seventeenth clauses, as well as the sixteenth clause, must be ascertained, and must then be carried into effect (De Kay v. Irving, 5 Denio, 655; Lasher v. Lasher, 13 Barb. 110; Bradhurst v. Bradhurst, 1 Paige, 343; Marsh v. Hague, 1 Edw. Ch. 174; Lambert’s Lessee v. Paine, 3 Cranch, 133; Smith v. Bell, 6 Pet. 80; McDonough v. Murdock, 15 How. 367; Hawkins on Cons. of Wils, Prop. IV. p. 4; Rule XVI of Jarman on Wills, cited and approved in note to 1 Redfield, 427). (a) The power of the testator to override any rule of construction is unquestioned O'Hara Construction of Wills, 32; Hawkins Con
      
      struction of Wills, Preface, p. 5). (5) It needs no set phraseology, nor a fixed location in a will, to make a residuary clause, (c) Our claim does not rest upon joint tenancy, which cannot exist till after testator’s death, and which could never exist between a person and a corporation (Blackst. [Cooley’s Ed.] vol. 1, pp. 183-4); but upon the intent of the testator. 7. The intent of the testator was to dispose of all his property ; and that the residuary legatees, who are capable of taking, should take the whole residue of his estate (Earl v. Grim, 1 Johns. Oh. 494, 497). The intent to will away everything, not to die intestate as to one cent, pervades the whole instrument (Bradstreet v. Clarke, 12 Wend. 602). The words “being one equal sixth part to each” are merely descriptive. As the “one-half” in Chamberlain v. Chamberlain, and as the “eleven equal parts” in Evans v. Field, 8 L. J. (N. S.) 264. See Van Nostrand v. Moore, 52 (N. Y. 20; Brownell v. De Wolf, 3 Mas. 495.
    V. Only the ward schools that are numbered can claim the legacy of $250. The burden of proof is on the trustees to remove any ambiguity.
    
      S. K. & F. B. Wightman, in behalf of the New York Association for Improving the Condition of the Poor.
    —In the certificate of incorporation was stated: The number of managers to manage the same, and the names of the managers of the society for the first year of its existence. In clause III it was stated, that the board of managers should consist of one president, five vice-presidents, one treasurer, one corresponding secretary and general agent, one recording secretary, the chairman of each advisory committee, or his proxy from said committee, and four members. Thus the board of managers were to consist of a president, five vice-presidents, a treasurer, a corresponding secretary and general agent, and a recording secretary, being nine in number; likewise of the chairman of each advisory committee, or his proxy, and four members, being twenty in number—making in all twenty-nine in number. This is clearly manifest from the consideration of the Illrd and IYth clauses taken together, as it was evidently intended they should be considered. In clause IY it was stated, that the following named persons should constitute the board of managers for the first year, naming them. The statement of the names of the managers of said society for the first year of its existence, as in clause IY, was alone a sufficient compliance with the requirements of the act, clearly showing the number of the managers for the first year to be twenty-nine, for that is certain which by calculation can be rendered certain. The certificate was duly acknowledged by the signers before D. F. Curry, commissioner of deeds, who certified thereto accordingly. The case of the People v. Nelson (46 IF. Y. 477), cited by counsel for the heirs, was a very different matter from this one now on trial. There the object of the corporators was business purposes coupled with pecuniary gain, and the defendant, the secretary of state, refused, for those reasons, to receive or file their certificate ; and upon the corporators’ application for mandamus, the court of appeals denied the same, and upheld the secretary in his refusal.
    
      Austen G. Fox (John H. Platt and Waldo Hutchins, with him), on behalf of the New York Institution for the Blind.
    I. The New York Institution for the Blind is entitled to take the legacy of $10,000 and one sixth of the residuary estate of the testator, (a) There is equitable conversion of realty into personalty, and the legacies vested as personal property (Phelps v. Pond, 23 N. Y. 69 ; Gourley v. Campbell, 6 Hun, 218 ; see points for plaintiffs). (5) The legacies above-mentioned vested in the New York Institution for the Blind. Being personal property, the corporation could take the legacy at common law, without regard to statute, and the property held by the legatee was producing at the testator’s death less than §100 income. The legatee was allowed to hold property, the annual income of which did not exceed §10,000 a year income (Points for plaintiffs), (c) An increase in the value, subsequent to the time when acquired, does not divest (Points for plaintiffs), (d) The title to the legacies vested either at the death of the testator, and, at that time, the institution did not hold property in excess of the limit imposed by statute, or else the title to the legacies vested at the death of the life-tenant, and at that time the institution could hold property to any value or of any income (Laws of 1874, ch. 226).
    II. Evidence of the value of property that is not productive is immaterial. The institution is limited, not in the value of the property it can take and hold, but in the income that it can receive from its property. But a given amount of property cannot be said to produce any fixed amount of income to the institution, until the institution has taken the property and invested it. Non constat that it will produce any income. It may prove a minus quantity so far as income is concerned. It may call for an outlay rather than produce income. A right to receive a legacy at some future time, does not increase the income of the legatee, until the legacy is paid (Baker v. Clark Institute, 110 Mass. 88).
    III. Even if the equitable conversion must be deemed to be postponed until after the death of the life tenant, and the estate of the testator continued to be real property until that time, it is still true that the intention of the testator was that the legatees should receive the legacies as gifts of so many dollars out of the proceeds of the sale of his property. If the property vested at the death of the life tenant, it is immaterial whether it vested as real or personal property, for the enabling act of 1874 had been passed before that time.
    IY. The rents and profits of his estate accruing between the death of the life tenant and the time of the final distribution, belong to the owners of the next eventual estate, that is, to the residuary legatees (see also points for plaintiffs).
    V. The heirs and next of kin of the testator cannot take advantage of the restriction. The institution can take the property, and having taken it, can hold it as against all the world, except the State (points for plaintiffs).
    
      E. L. Fancher, for N. Y. Institution for Instruction of Deaf and Dumb.
    Par. 17 of the will, shows that if any devise or legacy fail, “it is to be merged in my general estate and form a part of the rest, residue and remainder thereof.” 1 R. S. 748, § 2,. makes it the duty of court to carry into effect the intention of testator, so far as consistent with rules of law (see 8 N. Y. 539). 1. Where there is a direction to sell, the doctrine of equitable conversion applies (Harris v. Clark, 7 N. Y. 254, and cases cited). The residuum is, therefore, to be treated as personal estate (Phelps v. Pond, 23 N. Y. 69; Chamberlain v. Chamberlain, 43 Id. 432). 2. The residuary clause carries all the personal estate (2 Redfield on Wills, 115). All void legacies and lapsed legacies are included. 3. The statutes as to the H. Y. Institution for the Instruction of the Deaf and Dumb allow that corporation to take, by devise and bequest, both real and personal estate (chap. 428, Laws of 1849). The limitation in the first section of its charter (act of 1817), does not apply to property thus acquired. For example: It has often been held, that a corporation declared to be capable of “ taking, purchasing, holding and conveying real estate, does not become authorized to take by devise (Theology Sem. of Auburn v. Childs, 4 Paige, 419; McCartee v. Orphan Asylum Soc., 9 Cow. 437; Downing v. Marshall, 23 N. Y. 366). 4. Further, chap. 272, Laws of 1854, enlarged the power of the institution to take and hold property. All the property held by the institution, at and since the decease of Holbrook, the testator, is thus authorized by express legislative leave. Besides, the charter of the institution has been several times renewed, with express knowledge of the legislature as to all property it held, derived from the annual printed reports of the institution to the legislature (see chap. 174, Laws of 1840; chap. 272, Laws of 1854, § 4; chap. 360, Laws of 1862; chap. 190, Laws of 1869 ; chap. 248, Laws of 1849). Thus the power to take by devise is ample. 5. Any corporation not incorporated at the decease of testator (March 21, 1852), cannot receive their specific bequests, nor any share of the residuum. All such bequests or shares lapse to the general residuum. An incorporation subsequent to that time is insufficient (Owens v. Miss. Soc., 14 N. Y. 380; White v. Howard, 46 Id. 144). Nor can a corporation have the use where it cannot take directly (Holmes v. Mead, 52 N. Y. 340). 6. The case of Beekman v. Bonsor (23 N. Y. 299), was where half of the residuary was given to one person and the other half to another. One being incompetent to take did not authorize the other to have the whole ; for that would contravene the intention of the testator. But in this case of Holbrook’s will, the expressed intent of the testator is, that if any institution named should not have existence at his decease or be named by mistake, &c., “then in all such cases,” the amount intended for it “ shall lapse and be merged in my general estate.” Also, as all the estate is personal, by reason of the direction to the executors to sell and convert, the residuary clause of the will covers all the property not lawfully disposed of (2 Redfield on Wills, 115).
    
      Austin Abbott (Abbott & Wilds, attorneys), for the American Home Missionary Sobiety.
    I. As to entire conversion into personalty, cited, in addition to cases cited for plaintiffs: Everitt v. Everitt, 29 N. Y. 39; rev’g 29 Barb. 112, per Denio, Ch. J. [at p. 71] ; Kane v. Gott, 24 Wend. 641. The provisions by which the testator had secured himself against intestacy as to any part of his property whatsoever, prevent this conversion from failing as to any part (Arnold v. Gilbert, 5 Barb. 190; McKinstry v. Sanders, 2 Suprm. Ct. [Thomp. & C.], 181, 200, 202; Downing v. Marshall, 23 N. Y. 366, 390 ; Moncrief v. Ross, 50 N. Y. 431; Manice v. Manice, 43 Id. 362.
    IL The society was competent to take. The American Home Missionary Society is an institution formed over fifty years ago, and having,. from a time previous to the testator’s death, until its incorporation in 1871, continuously existed, with the following characteristics : 1. A known and definite membership, consisting of persons at all times ascertained and distinguishable from all other persons. 2. The associates have at all times been more than seven in number, having a common or joint interest in the funds and-property of the society. 3. They have at all times had a president and a treasurer. See on this point, Acts of 1849, c. 258, and 1851, c. 455 ; De Witt v. Chandler, 11 Abb. Pr. 459; Waterbury v. Mer. Union Exp. Co., 50 Barb. 157; S. C., 3 Abb. Pr. N. S. 163; De Roe v. Smith, 4 Supm. Ct. [T. & C.] 690 ; 1 L. 1867, p. 576, c. 289; L. 1854, p. 558, c. 245; L. 1860, p. 607, c. 360; Owens v. Missionary Society, 14 N. Y. 380 ; Jackson v. Cory, 8 Johns. 385; Hornbeck v. Westbrook, 9 Id. 73; Baptist Association v. Hart, 4 Wheat. 1; Green v. Dennis, 6 Conn. 292; Sherwood v. Am. Bible Soc., 4 Abb. Ct. App. Dec. 227; Bascom v. Albertson, 34 N. Y. 584; White v. Howard, 46 Id. 144; Holmes v. Mead, 52 Id. 332; Stubbs v. Sargon, 2 Keen, 255; affirmed 3 M. & C. 507; Adams v. Perry, 43 N. Y. 487.
    III. .That the legacies are sustainable in favor of the treasurer: DeWitt v. Chandler, 11 Abb. Pr. 459; Manice v. Manice, 43 N. Y. 303, 387; Reformed Dutch Church y. Brandow, 52 Barb. 228; Holmes v. Mead, 52 N. Y. 332; N. Y. Institution for the Blind v. How, 10 Id. 84; Reformed Dutch, Church v. Brandow, 52 Barb. 228, 233.
    IV. As to vesting, cited: Booth v. Booth, 4 Ves. 399, 400, 407; Leake v. Robinson, 2 Mer. 363; Jones v. Mackilwain, 1 Russ. 220; Goodtitle v. Whitby, 1 Burr. 228, 234; Tucker v. Ball, 1 Barb. 94, 98; 2 Redf. on W. ch. 2, § 16; 218, 220, § 14; 230, § 26; 235, § 34; distinguishing or opposing Leslie v. Marshall, 31 Barb. 560, and White v. Howard, 46 N. Y. 144.
    
      R. W. De Forest, for the Orphan Asylum Society.—
    The society was legally incorporated on March 21,1852, and was competent on that day to take by devise (McCartee v. Orphan Asylum Society, 9 Cow. 508). Its incapacity, however, in this respect is not material here. On the principle of equitable conversion, all the property given to it is personalty. On March 21, 1852, it had capacity to take the entire amount of the legacies (Ang. & Ames on Corp. §§ 145, 148, 177; Harpending v. Dutch Church, 16 Pet. 455; Leasure v. Hillegas, 7 8. & B. 319; Runyon v. Coster, 14 Pet. 128; Rainey v. Laing, 58 Barb. 453, 489). The legacies vested in the society at the testator’s death, by reason of its capacity to take. Their title is defeasible, not defeated, if the legacies were in excess of their capacity to hold (Baird v. Bank of Philadelphia, 11 S. & R. 
      411; People v. Mauran, 5 Den. 400; Banks v. Portianx, 3 Rand. (Va.) 136; Ang. & Ames on Corp. § 151; Kents Com.; Bogardus v. Trinity Church, 4 Sandf. Ch. 758-9; Goudie v. Northampton Water Co., 7 Barr, 233; Natonia Water Co. v. Clarkin, 14 Cal. 544; Baker v. Clarke Inst., 110 Mass. 88; Coke on Littleton, 2; Fairfax Devisee v. Hunter Lessee, 7 Cranch, 603; Sheafe v. O’Neil, 1 Mass. 256). The proper measure of value is the sum for which the property would sell at a fair public or private sale (Humbert v. Trinity Church, 24 Wend. 587; Harvard College v. City of Boston, 104 Mass. 470). The State may waive the direct forfeiture of a charter (15 N. H. 162, and cases cited, supra).
    
    
      Anson Maltby (Algernon S. Sullivan with him), for Porter, executor, defendant, Julia Ann Cook and others, and the heirs at law.
    Where an estate is ex pressly granted and no express trust created, but if any trust at all only by implication, and where a power will do as well as a trust, the court will let the life estate stand, and let the trust be a power in trust (Martin v. Martin, 43 Barb. 172; Tucker v. Tucker, 5 N. Y. 408; S. C., 28 How. Pr. 385). The executors were, therefore, merely agents or grantees of a power, and leased for her, and not for themselves, which was the same in effect as if she herself demised the property. 2. Nancy Holbrook died about midway between the term days on which rents for part of the property of which she held a life estate became due and payable ; her executor is entitled to the proportion of rent which accrued before her death (2 Rev. Stat. p. 154, § 15). After Mrs. Holbrook’s death the executors have not even a show of title to the rents ; their power to collect rents and to rent expires with the beneficiary (Manice v. Manice, 43 N. Y. 303).—I. Corporations unauthorized by charter to take by devise cannot take rents as cestuis que trust of realty, any more than they can take directly (Downing v. Marshall, 23 N. Y. 366). The case of Marshall v. Moseley (21 N. Y. 280) does not apply here. In that case the leases were made by the testator and had not run out. Of course they did not comply with the New York statute, which requires the life tenant to demise. But this case is exactly similar to the cases therein remarked upon with approval on pp. 283, 284, and 294, to wit: Exp. Smyth, 1 Swanst. 337 and note ; Paget v. Gee, 1 Amb. 199.
    II. 1. By the eleventh clause of Ephraim Holbrook’s will, Nancy Holbrook was expressly given a life estate in the sum of $30,000. No unnecessary implication can defeat this estate. The executors can perfectly well collect the rents under a power, and also the interest on personal property (Martin v. Martin, 43 Barb. 172; Tucker v. Tucker, 5 N. Y. 408). The instant her estate terminates, that of her legatees begins. This $30,000 bears interest, then, from the day of her death. Even were the estate not in her, but in the executors, still the use of the word “hereinafter,” in the twelfth clause of Mr. Holbrook’s will, renders this a fund distinct from all the others, and payable in preference to them, without waiting for final distribution. 2. The power of nomination given to Mrs. Holbrook is perfectly good. And as to realty, it is defined by the Revised Statutes to be a general power in trust (see IB. 8., 732; on Powers). Such a power is also valid as to personalty (Magoffen v. Patton, 3 Edw. Ch. 65, and cases cited; also Duff v. Dalzell, 1 Bro. C. C. 147; 1 Jarm. on Wills, 629-32 [1st Am. Ed.], and cases cited; Sugden on Powers, 15, 16, citing Clough v. Clough, 3 Myl. & Kee. 296; Hurst v. Earl of Winchelsea, 2 Ld. Kenyon, 444; Lord Kenyon, in Dingwell v. Asken, 1 Cox, 427; Langley v. Sneyd, 3 Brod. & Bing. 243 ; 1 Sim. & Stu. 45, 7 Moore, 165). All powers are not abolished by our Revised Statutes, but only all powers as to real estate except those named in the statute. Powers as to personalty, existing previous to that statute, still exist (Kane v. Gott, 24 Wend. 641; 7 Paige, 521 ; 17 N. Y. 561). Mrs. Holbrook could will this sum of money to any person she pleased, even to pay her own debts with ; and she had a right to create any estate by her will that Ephraim Holbrook could have created by his will (Bugden on Powers [Lond. 1808], 350). A trust estate given over all the property is in derogation of the widow’s dower right, and she is compelled to elect between her dower and her right under the trust (Savage v. Burnham, 17 N. Y. 561). Where a widow makes no declaration of election, but takes a provision made in lieu of dower, and enjoys it for twenty-two years without a word as to dower, she must be deemed to have elected the provision in lieu of dower (1 R. S. 742, § 14; Palmer v. Voorhis, 35 Barb. 479).
    III. At the death of Ephraim Holbrook, March 21, 1852, all the legacies (the legacies to ward schools will be discussed in another place) under his will vested in interest as remainders, although they did not vest in possession until at least the death of Mrs. Nancy Holbrook, December 18, 1874, or until afterward. The life estate vested from the date of his decease (see will of Ephraim Holbrook, section 11), and whenever the first limitation vests in possession, those that follow vest in interest, at the same time cease to be executory and' become mere vested remainders (2 saund. 388; 2 Ves. Sr. 243 ; Lion v. Burtiss, 20 Johns. 483; Wilks v. Lion, 2 Cow. 333; same rule stated in Drake v. Pell, 3 Edw. Ch. 251). A postponement of the vesting will not be imputed to the testator if it can be avoided (Roper on Legacies, 561, 8 ed.; 17 Ves. 101; Manice v. Manice, 43 N. Y. 303, 368; Doe v. Provoost, 4 Johns. 61; Larocque v. Clark, 5 N. Y. Surr. 469; Everitt v. Everitt, 29 N. Y. 39; Williams v. Conrad, 30 Barb. 524). After the death of Mrs. Holbrook, since December 18, 1874, there can be no question but that the executors have no right whatsoever to lease the lands and tenements belonging to the estate of Ephraim' Holbrook, deceased. They have now a mere power of sale and distribution, and the property belongs either to the heirs at law of the testator, or to his residuary legatees to whom their bequests and devises were given in terms of present gift (Kinnier v. Rogers, 42 N. Y. 531; Moncrief v. Ross, 50 Id. 431). In general a legacy payable at a future day does not carry interest until after it is payable (Lupton v. Lupton, 2 Johns. Ch. 614; 1 Tuck. 460 [Surr. Ct.]).
    IY. Those portions of the residue of the estate as to which the disposition fails do not accrue in augmentation of the remaining parts, as a residue of a residue (Floyd v. Barker, 1 Paige, 480; Beekman v. People, 27 Barb. 281-2; S. C., 23 N. Y 312; Downing v. Marshall, 23 Id. 366; Attorney General v. Davis, 9 Ves. 535 ; Cheslyn v. Cresswell, 2 Eden, 123; Ackroyd v. Smithson, 1 Brown Ch. 503; White v. Howard, 46 N. Y 144). 1. The six residuary legatees and devisees, if they take anything, take it as tenants ■in common, and not as joint tenants, at least so far as the 16th clause of will is concerned (Everitt v. Everitt, 29 N. Y. 39). (a) If it is taken as land, then the Revised Statutes provide (2 Rev. Stat. p. 135, § 44 [1st Ed. Banks & Gould, 1852]): “ Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy.” (t) Whether it be land or personal property by common law the principle is the same (2 Bl. Com. 399; Amt. 656; 1 Bro. O. C. 118). (c) “Joint tenancies are now regarded with so little favor, both in courts of law and equity, that whenever the expressions will impart an intention in favor of a tenancy in common, it will be given effect to ” (Chitty’s note to 2 Bl. Com. 180; 3 S. & R. 392 ; 11 Id. 192). Lord Cowper says that: “Joint tenancy in equity is an odious thing” (1 Salk. 158; 2 Ves. Sen. 258 ; Fisher v. Wigg, 1 P. Wms. 14 n. ; 1 Ld. Raym. 622; 1 Salk. 392, note 8). 2. Nor is there anything in the preamble of the'will to make this a joint tenancy. It implies no more than would be implied from the rest of the will, (a) It may have been the intention of the testator to dispose of all his property, and he may even cut off Ms heirs by express words of disherison ; but they still will take by operation of law all property not disposed of by will. There must be a full disposition of everything. Some one must hold the property, or the heirs or next of kin take it (Myers v. Eddy, 47 Barb. 263; Charter v. Otis, 41 Id. 525; Harvey v. Olmsted, 1 Id. 102; S. C., 1 N. Y. 483 ; Barheydt v. Barheydt, 20 Wend. 576; Vanderwerker v. Vanderwerker, 7 Barb. 221; Jackson v. Schauber, 7 Cow. 187). It is a clear principle of law that an heir cannot be disinherited without plain words of gift, or necessary implication, and in doubtful cases the title of the heir will prevail (Shelford on Mortmain, 205; Boutell v. Mohun, Prec. Ch. 381; Sympson v. Hornsby, Id. 439; Higgott v. Penrice, Id. 471 ; Kellett v. Kellett, 1 Ball & B. 541; Berry v. Usher, 11 Ves. 92; 1 Ves. & B. 466). Where there are two equally probable interpretations of the language of a will, that one is to be adopted which prefers the kin of the testator to strangers (Quinn v. Hardenbrook, 54 N. Y. 83, and cases cited; Scott v. Guernsey, 48 Id. 106). (&) Besides, the words in the preamble only imply that after-acquired property should go as well as property owned at the time of the execution of the will. 3. The testator had no thought that any of these six residuary legatees were unable to take Ms legacies, nor must we presume an intention not clearly shown, {a) The residuary legatees all existed at the time of his decease. (5) Nor is any one of the residuary legatees or devisees mis-named. (c) Nor was any one of them named by mistake, there having been no such person or institution. {d) Nor is any one of them not ascertainable with reasonable certainty, (e) This is not the language of an illiterate man, nor even of a non-professional man. The will was drawn by an able lawyer, who understood the force of each phrase, and whose duty it was to fully express the meaning of the testator, and it is to be presumed that he did so. (/) The court ought not to give this clause a new meaning by imputation. {g) Had the the testator contemplated any other events as avoiding the residuary legacies, than the ones provided for, he would have expressed them, had he wished the residuary legatees and devisees to ' take in joint tenancy. One-sixth of the residuary estate at the time of death was worth.from $19,200 to $29,200. The New York Association for Improving the Condition of the Poor, The Demilt Dispensary, The American Female Guardian Society, The New York Sabbath Tract Society, are severally incorporated—if incorporated at all-^under the general act, or subject to the restriction of the general act of this State of 1848 (L. 1848, ch. 319, § 6). (a) The testator, having left a wife him surviving, was restrained by section 6 of that act from devising or bequeathing to societies like these more than one-fourth of his estate, after payment of his debts and the subtraction of amount of widow’s dower (3 R. S. [Edm. ed.] 707; Bascom v. Albertson, 34 N. Y. 584 ; Chamberlain v. Chamberlain, 43 Id. 424). Beyond - this the devise and bequest are void. White v. Howard (46 N. Y. 144) does not settle this point at all; does not turn upon it. (5) He did devise of three-fourths, because he did leave a widow, (c) Any heir can take advantage of this provision, even though the widow is amply provided for. And the one-half is to be computed with reference to the estate at the time of the testator’s death (Harris v. American Bible Society, 4 Abb. Pr. N. S. 421). (d) A will must be construed according to the condition of things at the time of the testator’s death, (e) If it is found that the valid devises and bequests under this will contained and included a valid disposition to charitable societies such as these, of more, than one-fourth of his property as it then was, deducting debts and dower, these legacies must be reduced by three-fourths, so that these societies cannot get more than one-fourth, (f) But if the valid specific devises to such societies in section 15 of the will amount to as much as one-fourth of the testator’s whole estate, then the New York Association for Improving the Condition of the Poor can- only take its proportion of such one-fourth to the amount of $10,000, and nothing as residuary legatee, (g) If, however, the legacies validly disposed of to such societies in section 15 of the will do not equal one-fourth, then the New York Association for Improving the Condition of the Poor can take its legacy of $10,000 and one-sixth of the difference between the total amount of such legacies validly bequeathed and the sum representing one-fourth of the estate. (7¿) All these societies are incapacitated by this section, which forms a part of their charter, from taking more than their proportion of one-fourth of the estate. The statute of 1860 does not enlarge this right to take more than a proportionafcpart of one-fourth of the estate (Chamberlain v. Chamberlain, 43 N. Y. 424). The New York Association for Improving the Condition of the Poor did not file a proper certificate under the Law of 1848. It does not give “the number of trustees,'directors, or managers, to manage the same” (see L. 1848, c. 319, § 1; People v. Nelson, 46 N. Y. 480, per curiam). They were not then a corporation, on March 21, 1852, when their rights vested if at any time (they had filed their certificate but three' years before) ; whatever their prescriptive rights may be now, they have not, and never had, any interest under the will. The American Home Missionary Society cannot receive its legacy of $4,000, nor yet its residuary portion of one-sixth part. On March 21, 1852, the day the testator died, it was not incorporated, and never had been, until February 6, 1871. No subsequent alteration in its condition from a voluntary association to a chartered corporation can avail them (Leslie v. Marshall, 31 Barb. 560; White v. Howard, 46 N. Y. 144). It is a well-settled principle of law and of equity that voluntary unincorporated institutions for charitable purposes cannot take by devise in the State of New York, nor can they take by bequest (Owens v. Missionary Society, 14 N. Y. 380 ; Downing v. Marshall, 23 Id. 382 ; White v. Howard, 46 Id. 144; Sherwood v. American Bible Society, 1 Keyes, 561). The executors were not trustees to hold until incorporation of voluntary associations. The will should contain all the contingencies upon which an estate created by it should depend (Leslie v. Marshall, supra). Even supposing the testator attempted to create a trust in the executors in favor of any of these societies which could not take by reason of lack of incorporation (and it is maintained that he attempted no such thing), such trust would be valid only as a power of sale in trust, and the legacies or devises to such societies would be void. The clear reasoning of Chief Judge Comstock in Downing v. Marshall (23 N. Y. 375-383) conclusively settles this point in a case where the testator in terms tried to create a trust for sale and distribution (Yates v. Yates, 9 Barb. 343 ; McCaughal v. Ryan, 27 Id. 395, 398, 405; Owens v. Missionary Society, 14 N. Y. 
      406; Beekman v. People, 23 Id. 312; Bascom v. Albertson, 34 Id. 584). For similar reasons the legacies to the Marine Bible Society of New York (which was never incorporated, but which assigned its legacy to the American Bible Society in 1860, of which it was an auxiliary [See “Arcot Mission,” Sherwood v. American Bible Society, 4 Abb. Ct. App. Dec. 227, also briefs and points, 78 Court of Appeals Cases, Law Institute Library]); the Sabbath Tract Society of the City of New York, incorporated March 13, 1876; the Protestant Episcopal Tract Society, incorporated 1863; the General Protestant Episcopal Sunday School Union and Church Book Society, incorporated 1854 “for the purpose of taking this legacy,” were absolutely void. It is useless for any of these societies to contend that they had more than seven members, that they had a place of business well ascertained, that they have had a continuous existence, that they had an organization, constitution and by-laws, or even published a list of members at stated and perhaps frequent periods. These points are not new. They have been pressed and urged before without avail (See cases cited supra). The doctrine of charitable uses is no more applicable here than in Downing v. Marshall, Owens v. Missionary Society, or White v. Howard. Charitable uses do not exist in this State, nor-is the doctrine of cy pres of the English courts ever applied here (Leonard v. Burr, 18 N. Y. 96; Phelps v. Pond, 23 Id. 69; Beekman v. Bonsor, Id. 298; Downing v. Marshall, Id. 366; Rose v. Rose Benevolent Ass’n, Oct. Term Ct. of App. 1863 ; Bascom v. Albertson, 34 N. Y. 590). It follows from previous points that none of these formerly incorporated institutions can claim, under clause 17 of the will, that their treasurers, or presidents, or any other officers, are entitled to take, as trustees, the funds or portions bequeathed directly to these institutions. These institutions were not misnamed so as to be unascertainable. They are and were ascertainable; that is all that is said in clause 17 that applies to them, and this was superfluous in the will, for the law makes the same provision (N. Y. Institution for the Blind v. How, 10 N. Y. 84; 1 Jar. on Wills, 332-4). The evidence shows that the Orphan Asylum Society held largely over their charter limitation as to value of property. The court will not aid a party to obtain what it has not, when it already has all the legislature allows them (Bank of Michigan v. Niles, 1 Doug. 401; Chamberlain v. Chamberlain, 43 N. Y. 424; Court of Appeals Cases, 163 ; Wetmore v. Parker, 52 N. Y. 460). The law of mortmain applies as well to personal property as to real property (Angell & Ames on Corp. ch. 5, p. 91-93, and cases cited; Humbert v. Trinity Ch., 24 Wend. 587, 630; Bogardus v. Trinity Ch., 4 Sandf. Ch. 633, 758). All that has been said concerning the Orphan Asylum Society, applies mutatis mutandis to the Deaf and Dumb and the Blind Institutions.
    Y. 1. The heirs are entitled to all void residuary one sixth portions on the authorities before cited. The estate remains real estate to them even though actually converted. No part of the personalty existing at the time of Ephraim Holbrook’s death now remains. It was long ago used up in payment of legacies and charges and debts. 2. (a) There is no doubt but that the heirs take also all the rents, issues, profits and interest of the property that is claimed by the residuary legatees, whose legacies shall be determined to be void. (6) Even if the Home Missionary Society, the Blind Institution and the Orphan Asylum shall be declared entitled to their several legacies, yet as. they cannot take as devisees, the rents accruing on their unsold real estate would belong to the heirs ; for the estate is in the heirs until converted into money (White v. Howard, 46 N. Y. 144; Downing v. Marshall, 23 Id. 382). (c) The heirs are entitled to the rents of all the real property. The testator has made no disposition whatever of the rents. They are undisposed of, and fall to the heirs as real property.
    
      Rodman B. Dawson, for J. Howard Foote.—
    Moneys paid by the executors of Ephraim Holbrook for insurances, assessments, and permanent improvement of the real property, or by the tenants in return for reduction of rent, should be apportioned between the estate of the life tenant and the general estate, according to the life tables as to the probable duration of life, with interest on all sums found due, as the same was for the betterment and saving of the real property and to the advantage of the general estate. Mrs. Holbrook died about midway between the term days on which rents for part of the property of which she held a life estate become due and payable. As executrix of the will of her husband, she was entitled to commissions upon the sums received and paid for the “general estate,” and they should be paid to her estate, with interest from the time of her death. Should the clause in Ephraim Holbrook’s will, giving her power to dispose of $30,000 of the capital of his estate, be declared invalid, we claim that then the estate of Mrs. Eliza Ann Foote is entitled to $10,000 of it; and we also make the same claim should the will of Mrs. H. be declared not a valid disposition of said sum, and that interest on the same should be allowed from the time of her death.
    
      A. L. Macnab, for defendant, Lewis H. Lee.
    The bequest is an immediate gift, the time of payment only postponed, and, upon the death of the testator, vested in this defendant (Tucker v. Bishop, 16 N. Y. 402; Leonard v. Burr, 18 Id. 103 ; Everitt v. Everitt, 29 Id. 39; Manice v. Manice, 43 Id. 303 ; Williams v. Conrad, 30 Barb. 524-531). Conversion of the estate into personal property on Ms death (Arnold v. Gilbert, 5 Barb. 190, and cases cited; Dodge v. Pond, 23 N. Y. 69 ; Chamberlain v. Chamberlain, 43 Id. 424 ; Johnson v. Bennett, 39 Barb. 237-251). The legacy became due and payable upon the death of Nancy Holbrook (Heard v. Case, 23 How. Pr. 546; Miller v. Philip, 5 Paige, 573; Dodge v. Manning, 1 N. Y. 298; Roome v. Phillips, 24 Id. 463). General legacies draw interest from the time they are payable (Williams on Executors, 1221; Bradner v. Faulkner, 12 N. Y. 472). So even where the estate is so situated that it becomes impossible to convert it into money (Martin v. Martin, 6 Watts, 67; Hoagland v. Schenck, 1 Har. N. J. 370-375). Residuary legatees are not payable until after all the others are paid (2 Redfield on Wills, 452; Pinse v. Naplin, 1 Atk. 414).
    
      Charles Edward Tracy, for the American Bible Society.
    I. The American Bible Society was chartered March 25, 1841, and has full power and authority to receive the bequest (Downing v. Marshall, 23 N. Y. 384, 48; Sherwood v. American Bible Society, 4 Abb. Ct. App. Dec. 227).
    II. The New York Marine Bible Society, although it is a voluntary charitable association, and unincorporated, its connection with the American Bible Society was such as to entitle the latter to receive the bequest. The Marine Bible Society was organized as an “auxiliary” to the “parent society.” The evidence shows that this was one of several so entitled auxiliary societies, whose function was that of agents or helpers (as indicated by the name “auxiliary”) in the work of distribution of the Bible. The parent society did none of this work of distribution itself, but in that respect depended upon its auxiliaries, which were organized and managed for the' purpose of such agency alone. The reason given for the rule that a voluntary association may not take, as stated in Downing v. Marshall (23 N. Y. 382), is that there is no “trustee competent to take the funds so as to secure its appropriation to the benevolent purposes intended.” “ . . . There is no trustee and there are no beneficiaries ascertained either as individuals or a class of persons” (see also Owens v. Missionary Society, 14 N. Y. 406). In the present case the American Bible Society is the trustee, in which is the title and ownership of the legacies. Its “auxiliary” is only an agent, and the society takes the bequest in the same manner as if it had been made to one of its officers or agents by his official designation. The creation and continued existence of such agencies is provided for in the constitution of the American Bible Society, and the officers of all such Bible societies as shall hereafter agree to place their surplus revenue, after supplying their own districts with the Bible, at the disposal of this society, shall be entitled to vote in all meetings of the society. A gift to a church of a fund to be used in support of its minister for the time being was held to be valid, in Holmes v. Mead (52 N. Y. 342-3). The corporation uses the property, in accordance with the law of its creation, for its own purposes, and the dictation of the manner of its use, within the law, by the donor, does not affect its ownership or make it a trustee (per Church, C. J., in Wetmore v. Parker, 52 N. Y. 459). The gift of personalty is absolute. The statute of perpetuities is not transgressed. The legal title, as well as the “use,” both vested in the American Bible Society.. The assignment rests upon a valid consideration, namely, payment of the indebtedness of the auxiliary society. It serves to support the claim as evidence of title. The fund for payment and the legacies carry interest until the date of actual payment.
    
      J. W. C. Leveridge, for The American Sunday School Union.
    The American Sunday School Union were incorporated by an act of the general assembly of the commonwealth of Pennsylvania, passed April 15, 1845.-—-I. There is no devise of real property. All the legacies must be regarded as constructively converted into personal, and is therefore merely a-bequest of personal estate, which by the act of incorporation of said defendants, “The American Sunday School Union,” they are competent to take and receive (Harris v. Clark, 7 N. Y. 242 and cases cited).
    II. When the name used in a will does not designate with precision any person, society or corporation, and when the circumstances concur to indicate that a particular person, society or corporation was intended, and no similar conclusive circumstances appear to distinguish any other person, society or corporation, the person, society or corporation thus shown to be intended, will take (N. Y. Institution for the Blind v. Howe, 10 N. Y. 84).
    ITT. The American Sunday School Union can take a bequest, notwithstanding its being incorporated by a foreign State (Sherwood Amer. Bible Society, 4 Abb. Ct. App. Dec. 227; Chamberlain v. Chamberlain, 43 N. Y. 424; Angell & Ames on Corp. 161; Bard v. Poole, 2 Kern. [N. Y.] 495 ; Merrick v. Van Santvoord, 34 N. Y. 208 ; Williams v. Williams, 4 Seld. [N. Y] 525, 554).
    IV. There is no statute in this State prohibiting corporations from acquiring personal property by bequest, and by comity we recognize the existence of corporations in other States, and permit them to exercise the powers with which they are endowed, in our own State, unless the same is repugnant to our policy or injurious to our interests (Sherwood v. Amer. Bible Society, above).
    
      Nash & Holt, for the defendants,
    The New York Bible and Common Prayer Book Society and the Protestant Episcopal Tract Society.—The bequest is at fol. 38. The testator died in 1852. Haney Holbrook died in 1874. The Tract Society was incorporated by ch. 274, Laws of 1863.—I. The legacy to the Tract Society did not vest till the death of Haney Holbrook. Whether a legacy is to vest at the testator’s death or subsequently is a question of intention, to be drawn from the whole will (2 Redfield on Wills, 250; 2 Williams on Executors, 1226, and cases cited). The general rule that a legacy is vested when the bequest is in terms immediate and the payment alone postponed, is itself based on the rule of interpretation by ascertaining the testator’s intention. In the great majority of cases of bequests to natural persons who are near relations or connections, it is not the testator’s intention, in case the legatee dies before the testator, that the legacy should lapse. He wishes the children or other descendants of the legatee to take. But in the case at bar, if the court shall hold that this legacy vested at the testator’s death, and that therefore it lapsed because the society was not then legally incorporated, the clear result will be to defeat the testator’s intention. The Protestant Episcopal Tract Society does not now differ in any practical respect from what it was when the testator knew it. It has, indeed, been incorporated. But the society appears unchanged to the public. It bears the same name, it carries on the same work, and it aims to accomplish the same good results which it did when the testator knew it. He intended to help this very organization by giving it a part of his estate after his wife’s death. That intention ought to be carried out unless the legal obstacles in its way are imperative and insurmountable. When the testator shows a clear intention that a legacy shall not vest till his property has been sold or realized, the legacy will not vest at the testator’s death (Williams on Executors, 1226). The general scheme of the will shows that the legacy in question was not meant to vest till Mrs. Holbrook’s death. It is clear that the general idea in the testator’s mind was that that part of his estate which he wished to give to his relatives and friends should vest at once ; that the residue remain as it was till his wife’s death, she taking during her life the whole income ; and then that his charitable scheme should be carried out and the various legacies to charitable institutions vest in them. It was not supposed nor intended by the testator that these charitable institutions should have any rights in these legacies until Mrs. Holbrook died. Why give the words a construction which will defeat the testator’s intention ?
    II. If the legacy to the Tract Society did not vest till Nancy Holbrook’s death, the incorporation of the society before Nancy Holbrook’s death entitles it to take (Burrill v. Boardman, 43 N. Y. 261). The bequest is contingent within the definition of a contingent remainder (1 B. S. 723, § 13 ; see also 1 Id. 773, § 2).
    
      Austin Abbott (Abbott & Wilds, attorneys), for the 20th Ward School Trustees, in addition to plaintiff’s points.
    I. The trustees are competent to take by be quest for the purposes contemplated by the will. 1. The power is given by the Laws of 1841, p. 245, c. 261, extending L. 1840, p. 267, c. 318. 2. And it continues, notwithstanding the power of the Board of Education to take by bequest (Consistory v. Brandow, 52 Barb. 228). 3. And local legislation does not, without express words, or absolutely necessary implication, repeal a general law, or take away powers given by a general law to local authorities (People v. Quigg, 59 N. Y. 83 ; Matter of Commissioners of Central Park, 50 Id. 493 ; Village of Deposit v. Vail, 5 Hun, 310).
    II. The power to sell at such time after Mrs. Holbrook’ s death as the executor’s think best, not exceeding three years, does not invalidate the gift; nor does the reference to the time of final distribution, to ascertain the number of schools. 1. In legal effect, the will contemplates final distribution immediately upon the widow’s death (McKinstry v. Sanders, 2 Sup'm Ct. [T. & C.] 200-202; Manice v. Manice, 43 N. Y. 303, 304). 2. In the absence of any provision as to the time of sale, the executors would have a reasonable time. Declaring that such time should not exceed three years, is no suspension of the power of alienation (Same cases). 3. If the provision were objectionable, it should be rejected as void, without impairing the gift (Converse n. Kellogg, 7 Barb. 590).
    
      Anson Maltby, for heirs, &c.,
    Cited in reply: King v. Woodhull, 3 Edw. Ch. 79; Potter v. Chapin, 6 Paige, 639; Banks v. Phelan, 4 Barb. 89; Wright v. Trustees of Methodist Epis. Ch., 1 Hoffm. 202 ; Dodge v. Pond, 23 N. Y. 69 ; Drayton v. Drayton, 1 Desauss. 329; Bauch v. Hurst, 3 Id. 288; Woodgate v. Unwin, 4 Sim. 129 ; Westcott v. Cady, 5 Johns. Ch. 334; Armstrong v. Moran, 1 Bradf. 314; Page v. Page, 2 Pr. Wms. 489 ; Arcularius v. Geisenhainer, 3 Bradf. 75 ; Bagwell r. Dry, 1 Peere Wms. 700; Man v. Man, 1 Stra. 905; Owen v. Owen, 1 Atk. ; Peat v. Chapman, 1 Ves. Sr. 542; Bain v. Lescher, 11 Sim. 397; Re Moore, 31 L. J. Ch. 368; Sweet v. Geisenhainer, 3 Bradf. 122 ; Hyatt v. Pugsley, 23 Barb. 285.
    Upon the settlement of the judgment—a question arising as to the disposition of rents and profits—a further hearing was had upon this subject, Austen G. Fox, Robert W. De Forest and Austin Abbott, appearing for the legatees.
    
      
       See Embury v. Sheldon, 3 Abb. New Cas. 404.
    
    
      
       See Dunning v. Ocean Nat. Bank, 61 N. Y. 497.
    
    
      
       See also Embury v. Sheldon (above).
    
    
      
       See Bowen v. Chase, U. S. Supreme Ct. 1876; Tucker v. Meeks, 52 N. Y. 638; 2 Sweeny, 736.
    
    
      
       See 1 R. S. 736, 737; L. 1876, p. 93, c. 118.
    
    
      
       There is another statute containing a similar restriction, differently applicable. L. 1860, p. 607, c. 360 (3 R. S. 6 Ed. 58, § IV). As to the application of these two acts, see Le Fevre v. Le Fevre, 59 N. Y. 434; reversing, in part, 2 Supreme Ct. (T. & C.) 330; Harris v. American Bible Society, 2 Abb. Ct. App. Dec. 316.
    
    
      
       Compare De Witt v. Chandler, 11 Abb. Pr. 459 ; Reformed Dutch Church v. Brandon, 52 Barb. 228; Andrew v. N. Y. Bible, &c. Society, 4 Sandf. 156.
    
    
      
       The following additional points not discussed in the opinion, were also adjudged in the conclusions of law and in substance or effect embraced in the judgment, the terms of which were settled on notice and after argument thereon :
      A bequest of “ all the rents, issues, or profits of an estate for life ” conveys no life-estate legal or equitable.
      A bequest to “the New York Protestant Half-Orphan Asylum,” adjudged to “the Society for the Belief of Half-Orphans and Destitute Children in the city of New York.”
      A bequest to “the Society for the Education of Poor Young Men for the Gospel Ministry in the Protestant Episcopal Church,” adjudged to “the Protestant Episcopal Society for Promoting Religion and Learning in the State of New York.”
      The words “Ward Schools” included “Colored Schools,” within the meaning of the testator.
      A portion of the estate having been held to belong to the heirs of the testator, and a reference having been ordered to determine the names and shares of said heirs, ordered that the portion adjudged to them be paid into court to abide the decision of the referee, and that the whole expenses of the reference be paid out of said portion.
      The names and number of certain defendants of a brother of the testator being unknown, and publication against them as “John Doe ' and Richard Roe, descendants of Griffin Holbrook,” and by other fictitious names, having been duly made, ordered that said descendants are bound and concluded by the judgment, and that the plaintiffs upon ascertaining any of said names, may upon further order without notice insert them in place of one or more fictitious names, and that “ said persons shall thereupon be bound and concluded by this judgment and decree as fully as if they had been personally served. ”
      On subsequent application to amend by inserting names discovered, several real names may be substituted for a single fictitious name.
    
   Van Vorst, J.

The will of Ephraim Holbrook was executed on June 16, 1851, and the testator died on March 21, 1852. The testator left a widow, but no child or descendant him surviving. After making a distribution of about $30,000 of his estate, in legacies among relatives and friends, the testator gave the income of the balance of his estate, with the exception of a small annuity to his sister, to his wife for life. He also gave to his wife the sum of $30,000 of the capital of his estate, to be disposed of by her as she might think best by her last will and testament, but in the event of her failure so to do, the testator himself disposed of same by his will. Upon the death of his widow, a distribution of the residue of his estate was to be made among the persons and societies selected by the testator as the objects of his regard and benevolence.

Notwithstanding the great care evidently taken in the preparation of this will, and the excellent professional aid had by the testator, several questions of interest and importance are involved in the construction of some of its provisions, arising not so much from any obscurity in the language of the instrument, as from an apparent conflict in decisions with respect to the same. And now, after the lapse of nearly twenty-five years from the execution of the will, the period for a final distribution of the estate by the death of the widow having arrived, this action for a construction of and decision upon certain of its provisions, and for a distribution of the estate, is brought.

A proper determination of the case is best attained by determining, in the beginning, some general questions which affect the whole estate, and in the light of which most of the provisions of the will about which doubts have arisen must be considered. No question arises in regard to the dispositions made by the will up to the eleventh clause thereof. To this point the legacies are conceded to be valid, and the will has been actually executed by the payment of the legacies without contention.

By the eleventh clause of his will the testator declares that the income, rents, issues, dividends, and profits of his estate, which are thereby given to his wife, Nancy Holbrook, during her life, “ are to be paid to my said beloved wife, Nancy Holbrook, during the period of her natural life, by my executors half-yearly, or as often as the same shall be received by them.”

It was clearly the intention of the testator that the executors should collect the rents, income, and profits of his estate, for they were to be received and paid over by them. The words used express such intention with sufficient clearness. The executors are thus constituted trustees to receive and pay over the income arising from the estate. An authority to pay as the same should be received necessarily implies a power to collect. Executors as such have no control over the real estate, nor authority to receive its rents, and when by the terms of the will they are expressly invested with such power, they become trustees to collect, receive, and pay over in the manner the will directs. And though these rents and profits are given to the wife, she is to receive them from the persons who are alone authorized to pay the same.

By implication, therefore, the executors take an estate in the lands, and were enabled to let the same so as to enable them to receive and apply the rents and profits for the purposes of the trust.

To accomplish the purposes of the will in this regard, the presence of the legal title in the trustees is both convenient and necessary (Vail v. Vail, 4 Paige, 328 ; Bradley v. Amidon, 10 Id. 235; Craig v. Craig, 3 Barb. Ch. 77; Manice v. Manice, 43 N. Y. 303; Downing v. Marshall, 23 Id. 378).

This estate or interest in the executors lasted, however, only so long as the purposes of the trust required, and terminated with the death of Nancy Holbrook.

The executors are, "however, invested by the will with a valid power of sale of all and singular the real estate of the testator, and this power survived the termination of their estate or interest in the land during the life of Mrs. Holbrook, and could be executed after her death, if not satisfied before (Manice v. Manice, supra).

We now come to consider this power of sale with which the executors are clothed, its extent, and its effect upon the real estate.

By the twelfth clause of the will, the executors, at such time after the decease of the wife of the testator as they shall think best, not exceeding three years, were directed to sell and dispose of all the real and personal estate of which the testator should die seized then remaining unsold, either at public or private sale, or both, as they should think most likely to obtain the largest aggregate amount therefor, and with the proceeds to pay off without delay the legacies, gifts, and bequests thereinafter declared, and all power needed fully to carry out this direction to sell, is given in the amplest manner in the eighteenth clause of the will. This absolute direction to sell stamps the quality of personalty upon the real estate, and it is subject to the laws of that species of property into which it was intended to be converted (Bogert v. Hertell, 4 Hill, 500).

“ The gifts were of money, the avails of the real and personal estate, and the conversion of the realty into personalty, under the authority conferred upon the executors, is regarded as having been accomplished at the death of the testator” (Chamberlain v. Chamberlain, 43 N. Y. 431).

Some question might arise under the terms of the twelfth clause as to whether the equitable conversion was complete before the death of Mrs. Holbrook, as the direction to sell therein contained was to be exercised after her death. But the eighteenth clause enlarges the power, and in effect removes such limitation over the exercise of the power of sale, as thereby the executors are enabled and directed, “at such times as they may think most expedient and most for the interest of his estate,” to sell and dispose of the real and personal estate. The direction to sell was positive. The power to do so could be exercised at any time after the death of the testator, but must be within three years after the death of the widow; and, under the rule, that is always considered as done which is ordered to be done. The whole estate was equitably converted into money, for all the valid purposes of the will, at the death of the testator, and the same must be regarded, for the purposes of distribution under his will, as personal, and to be controlled by the law governing the testamentary disposition of personal estate, unless there be a failure in whole or in part of the object and purposes of the sale (Horton v. McCoy, 47 N. Y. 21; Dodge v. Pond, 23 Id. 69 ; Moncrief v. Ross, 50 Id. 431; Meakings r. Cromwell, 5 Id. 136).

At the death of the testator, all the legacies now under consideration, if valid, with the exception of those in favor of the ward schools, vested in interest, although they did not vest in possession until the death of Fancy Holbrook, December 18, 1874. The general rule to be extracted from the authorities is, that when legacies "are payable in the future without condition annexed, or any expressed intention of the testator to the contrary, whether they are of personal property or of real estate directed to be sold to discharge them, they vest at the death of the testator (Van Wyck v. Bloodgood, 1 Brad. 172; Parsons v. Lyman, 4 Id. 299 ; Matter of Trustees of N. Y. P. E. Pub. School, 31 N. Y. 589), and this, though a life estate may intervene before payment.

The' application of these general conclusions, here for convenience stated, will hereafter appear when those portions of the will concerning which questions have arisen, and in which they are involved, come to be considered.

But the portions which require construction and judicial determination will be considered in the order in which they arise in the will.

By the eleventh clause of his will, the testator gave to his wife Nancy Holbrook, in case she should survive him, the sum of $30,000 of the capital of his estate, to be disposed of by her as she might think best, by her last will and testament, duly and properly executed, and the testator declared that, in case Nancy Holbrook should not survive him, or, surviving, should not make any disposition of the said $30,000 by her will, then it was the will of the testator that the amount be paid and disposed of to the persons named by him.

An examination of the entire clause shows that this was not an absolute gift to the widow of $30,000. The clause is entire, and the words of gift at its commencement are distinctly qualified, and it is in the light of such qualification that this disposition must be considered. This sum is given only to be disposed of by the last will and testament of the widow prop-' erly executed. And in the event of her failure to make such disposition the testator himself absolutely disposes of it, so that it can in no event fall into the residuary portion of his estate, so carefully afterwards disposed of.

Such qualifying words and control over and ultimate disposal by the testator himself of this fund, show that Nancy Holbrook was invested with a power of appointment as to the $30,000 of the capital of the testator’s estate, the power, however, to be executed only in the manner the testator had directed. As long as the widow should live, this sum would form a portion of the estate in the hands of the executors as trustees, to the income and profits whereof she would be entitled for her life, and at her death would go to such persons as she might, by will, duly appoint.

I cannot but think, therefore, that as to this sum of $30,000, it was the intention of the testator that his widow should have a power of appointment only, and as such it is valid, the power to be exercised strictly in the manner directed by the will.

And this was done, for Mrs. Holbrook, by her last will and testament, with a codicil thereto, made in thee State of New. Jersey, in conformity with the law of that State, disposed of the same. Her will was duly proved in Morris county in that State, and is a valid compliance with the provisions of the eleventh clause of her husband’s will.

As to $15,000 thereof, she gave the same to the executors of her will, in trust, to pay the income thereof to her sister Julia Ann Cook for life, and upon the. death of her sister, the principal of said $15,000 is absolutely disposed of to other of her relatives. With respect to the remaining $15,000, although the same is actually disposed of by the will and codicil, yet the same is directed to be received by her executors, and the disposition thereof by them is coupled with the administration of her own estate, and dependent, to some extent, upon its sufficiency to pay certain legacies. The deficiency of her own estate, if any, to pay such legacies, is to be supplied out of this $15,000. The executors of her own will are charged by her with the payment of these legacies, as also with the payment of other moneys thereout, to the discharge of an incumbrance upon a certain, house and lot in New Jersey, and the residue of the moneys is to be held and applied by them upon certain trusts.

Now, although the $30,000 is, in fact, no part of her estate, and, had she died intestate, could not have passed to her legal representatives, yet I am of opinion that the executors, under the will of Ephraim Hoibrook, are authorized to pay the whole sum of $30,000 to the executors appointed under the will of Nancy Holbrook, who have legally qualified, to be held and applied by them according to the bequests and directions contained in her will, and upon the trusts and for the purposes therein declared; and that such payment will be a disposal of that sum according to the appointment of Nancy Holbrook.

Convenience clearly suggests that the application and final payment of the moneys, according to her appointment, should be made by her executors, as specific duties are cast upon them in respect thereof. No rule is violated by such direction, and no interest put in jeopardy.

The parties in interest are all before the court, and the judgment to be given herein will make express directions how the funds shall be paid and applied by the executors, and who shall receive the same in pursuance of the provisions of the will of Nancy Holbrook.

Although there is nothing in the will which in terms declares that the provisions made by the testator in favor of his wife were to be received by her in lieu of dower in his estate, yet I am of the opinion that such was the intent of the testator, and that the same was so regarded by the widow during her life. For she, subsequent to her husband’s death, executed and delivered to the executors of his will an instrument, under her hand and seal, by which she renounced and disclaimed all dower and right of dower, which she might or could have in or out of all the real estate devised by her husband, and accepted the provisions and bequests made in her favor, in lieu of such dower or right of dower.

The gift of the $30,000, made 11 out of the capital” of the estate, and as it were distinctly set apart therefrom, was absolutely, in its entirety, subject to the disposal of the widow by her will, and became vested in interest in the appointees at her death, in virtue of the execution by her of the power conferred upon her, and could have been devoted by her to the payment of her own obligations.

If I am correct in the conclusion that the provisions in her favor contained in her husband’s will were in lieu of dower, this specific bequest of thirty thousand dollars would not abate in the event of the failure of the remaining estate of the testator to pay in full the other bequests made by him, for the reason that her power over its disposition, was in part given as an equivalent for a relinquishment of her right of dower (Williamson v. Williamson, 6 Paige, 305).

By the fifteenth clause of the will, gifts amounting in the aggregate to about the sum of ninety-five thousand dollars, are made to various benevolent, charitable, and educational corporations, societies, and bodies, to many of which specific objections are interposed by the heirs at law of the testator, and which are now to be.considered.

To the “New York Association for Improving the Condition of the Poor” is given the sum of ten thousand dollars. This association is also one of the residuary devisees and legatees.

With regard to this association, it is objected that it was not, on March 21, 1852,—the day on which the testator died,—legally incorporated in accordance with the provisions of the statutes of the State of New York, and was not at that time a corporation within the provisions of the statute, and is not competent to take.

James Brown and twenty other persons, on December 11, 1848, signed and acknowledged before an officer authorized to take the acknowledgment of deeds, a certificate in writing, in which was expressed their intention to become a body politic and corporate, for benevolent and charitable purposes according to the provisions of an act for the incorporation of societies for such purposes, passed April 12, 1848. The certificate was approved by a justice of the supreme court, on December 14, 1848, and was filed in pursuance of the allowance of the justice indorsed theron. The association, from the period of the making and filing of the certificate, has maintained its organization and work, and has acted as, and claimed at all times to be, a body corporate, and has made regular annual reports of its work and proceedings. The testator had, up to the' time of his death, been connected with the association as an active member and officer. The objection urged is that the certificate of incorporation does not state the number of trustees, directors, or managers to manage the same, in pursuance of section 1, chapter 319 of the laws of 1848. It is true the certificate does not state in terms the number of persons who shall manage the affairs of the corporation, but it does in substance. By the third section of the certificate it is declared that the board of managers to manage the same shall consist of one president, five vice-presidents, and other officers mentioned, and in the fourth section it names the persons with their, offices who were to manage the same the-first year.

This certificate I conclude to be a substantial compliance with the provisions of the statute in question. The approval of the justice of the supreme court, and the acceptance of the certificate by the secretary of state, in whose office it was filed, was sufficient evidence of compliance with the law, to justify the corporators to believe that they had conformed to its provisions, and that they had become, by the making and filing of the certificate, a body corporate, and for the purpose of taking the bequest in question, this association must be deemed a body corporate.

A substantial compliance with the statute is all that is necessary. In the case of the People v. Nelson, 46 N. Y. 477, the certificate was fatally defective in substance, and the secretary of state properly refused to file the same, and the decision was that he could not be required to file a certificate unauthorized by law.

But it is objected upon another ground that this corporation cannot lawfully take the provisions in its favor under the will, and it is urged that the same objection applies to the gifts made to the Demilt Dispensary, the American Female Guardian Society, and the Few York Sabbath Tract Society severally, also incorporated under the act of 1848.

Section 6 of the act in question declares that any corporation formed under that act shall be capable of taking, holding, or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars, provided no person leaving a wife or child or parent shall devise or bequeath to such corporation more than one-fourth of his or her estate, after the payment of his debts. The testator, as has been seen, left a wife him surviving, and was prohibited by the section above mentioned from devising or bequeathing to societies incorporated under that act more than one-fourth of his estate, after paying his debts. The bequests made to these four corporations by the fifteenth clause of the will are the sum of ten thousand dollars to the Association for the Belief of the Poor, to the Sabbath Tract Society one thousand dollars, to the Demilt Dispensary five thousand dollars, to the American Female Guardian Society two thousand dollars. In addition to these bequests the Association for the Belief of the Poor by the provisions of the will is entitled to one-sixth of the residuary estate. If these gifts and bequests amount in the aggregate to more than one-fourth of the estate after, the payment of the testator’s debts, they must be severally reduced by proper deductions so as to bring them within such one-fourth, each contributing its proper rateable proportion to such deduction. This was the rule adopted in Chamberlain v. Chamberlain, supra.

But devises and bequests made to corporations other than those above named, and not affected by the limitation imposed by section 6 above mentioned, are not to be taken into account in this connection, in determining how much of his estate the testator has given to corporations organized under the act of 1848. And in determining how much the Association for the Relief of the Poor will take, under the residuary clause, all valid and invalid legacies must be deducted.

A careful consideration of the evidence satisfies me, that after deducting the debts of the testator, the legacies to the four corporations, which amount to $18,000, together with the one-sixth of the residuary estate to which the Association for the Relief of the Poor is entitled under the sixteenth clause of the will, do not amount to one-fourth of the testator’s estate. The gifts to such of these societies as were incorporated at the death of the testator are therefore decided to be valid.

By the fifteenth clause of his will, the testator gave to the New York Protestant Orphan Asylum $6,000; to the New York Institution for the Blind, $10,000 ; to the New York Institution for the Instruction of the Deaf and Dumb, $10,000; and to each of the three last named institutions is also given one-sixth of all the residue of the testator’s estate.

It is objected on the part of the heirs-at-law of the testator, that these corporations were severally limited by their charters to the amount of property they could take and hold, and that at • the death of the testator they held up to, and beyond the limit imposed by their charters.

The Orphan Asylum Society in the City of New York was incorporated by a special act of the legislature, on April 7, 1807. By its charter it was made capable in law “of purchasing, holding, and conveying” any estate, real or personal, for the use of the corporation, provided that such estate shall never exceed in value $100,000. By an act of the legislature, passed March 16, 1850, amending its charter, it was provided that the corporation is authorized “to purchase, hold, and convey” any estate, real and personal, for the use of the said corporation, provided that such estate shall never exceed in value $200,000. This limitation existed unchanged at the death of the testator in 1852.

The acts of the legislature passed in the years 1859 and 1872, by which the charter of the corporation is further amended, by the former of which, the corporation is authorized to purchase, hold, and convey estate, real and personal, to an amount not exceeding $250,000, and by the latter to an amount not exceeding $1,500,-000, cannot affect the gifts in question, as the gifts, if they vested at all, did so at the death of the testator, and subsequent statutes could not divest the rights of others which attached, if the gifts under the will were invalid.

The right of this corporation to the provisions made in its favor, must be determined by the law in force when the will of the testator in that regard, was intended by him to take effect (Leslie v. Marshall, 31 Barb. 560 ; White v. Howard, 46 N. Y. 144).

The learned counsel for the Orphan Asylum Society earnestly contends that no such objection as is here interposed by the heirs-at-law can be raised by them ; and that notwithstanding the limitations contained in its charter, the provisions in its favor under the will, vested in interest in the corporation at the death of the testator, and that it is for the State alone, through the attorney-general, to inquire into the subject, and by appropriate action take advantage of the restrictions upon its capacity to hold the gift, if in excess of the amount limited. Leasure v. Hillegas, 7 S. & R. 319 ; Runyon v. Coster, 14 Pet. 128; Baird v. Bank of Washington, 11 S. & R. 411; Baker v. Clarke Inst. for Deaf, 110 Mass. 88, and other cases, were cited upon this subject upon the argument. These cases show that the title to property held by corporations in excess of charter capacity, is defeasible only by the State.

But the question presented here is whether the corporation can take, not whether taking, it can hold.

Rainey v. Laing, 58 Barb. 453, is the only case in this court to which direct reference is made. That case decided that whether the property, with that which the corporation already held, would exceed in amount the sum to which its charter restricted it, could not be ' tried in an action brought by the executors for the construction of the will; that that question was not to be determined collaterally, but only in a direct proceeding by the State. In that case it was provided by the law of its incorporation that the corporation should not take and hold real and personal property of the yearly value of over $10,000. In its decision, the court says : ' The corporation can take ; whether they can hold is another question, not necessary in this collateral way to be considered, which is purely one of public policy, with which individuals have no concern.”

At common law a corporation can take personal property by bequest to any amount (Angel & Ames on Corporations, § 145 ; Sherwood v. Amer. Bible Society, 4 Abb. N. Y. App. Dec. 227.)

With respect to the corporations under consideration, although “ authorized to purchase, hold and convey,” it was upon the express proviso that such estate shall never exceed in value $200,000. As purchasing includes taking by bequest, it must be held that its common law capacity is abridged by its charter.

The case of Chamberlain v. Chamberlain, supra, is an important one, and would seem to have disposed of the subject, and as far as Rainey v. Laing conflicts therewith, it must be regarded as overruled.

Allen, J., says: “ Doubtless the restriction upon corporations is a governmental regulation, and one of policy, and to be enforced by the government; but an individual whose interests are affected by a transgression of the rule, may assert and insist upon the limitation as a restriction upon the power of the corporation to take.”

The “Centenary Fund Society,” one of the corporations to whom a bequest had been made, was by its charter authorized to take and hold land and money given and bequeathed to it. And by a statute of Pennsylvania subsequently passed, it was authorized “to take, receive, and hold” property to a limit prescribed. The Chamberlain Institute, the other corporation interested in the bequest, could by statute take and hold, by gift, grant, or devise, real and personal property, the clear yearly income of which should not exceed the value of $4,000 (1B. 8. 462, § 62.)

Allen, J., said: “ The institute can take and hold property within the limits prescribed, but can neither take or hold in excess of that limit; effect will not be given to a transgressive bequest in excess of the amount authorized. This decision, it is clear, applies to the case under consideration, and involves 'an examination into the evidence to ascertain whether or not the gifts to this corporation are in excess of what it may take or “ take and hold.”

[The learned judge here reviewed the evidence as to the value of the property, and held that, upon the best approximation which the evidence adduced enabled him to make to the value at the time of the testator’s death, the receipt of the gifts, at that value, would increase the amount of property then allowed to be received and held under the charter by $2,650, which accordingly must be deducted; but, upon a further examination of the case, in respect to the value of the. gifts to the orphan asylum, it appeared that the same did not exceed the amount it could legally take, in addition to the property it already held, and no deduction was made.]

By the provisions of the will, the Yew York Institution for the Blind is entitled to a legacy of $10,000 and one-sixth of the residuary estate. This institution was incorporated by an act of the legislature, passed April 21, 1831, and was made “ capable in law of purchasing, holding, and conveying any real and personal property,” for the purposes of their incorporation and none other, “which at any time shall not exceed the annual income of $10,000.” Evidence was introduced by the heirs-at-law of the testator to show the value of the buildings and grounds owned and occupied by the corporation, between Eighth and Yinth avenues, and Thirty-third and Thirty-fourth streets, in the city of Yew York.

These grounds had been acquired by the corporation in and previous to the year 1847, and at a cost to the institution of about $30,000. The construction of the buildings thereon by the incorporation involved the expenditure of about $80,000. The entire premises occupied by its main buildings, dormitories and work-shops, are used for the care, training, and instruction of the blind. Yo income, aside from its use by the corporation for these purposes, is derived from the premises. The shops, in which are carried on the simple pursuits in willow-working and weaving, in which the blind are instructed, are not a source of income. According to the report made to the legislature in 1847, it appears that the sale of the articles did not more than reimburse the cost of their manufacture. The chief, in fact only, purpose being to instruct the beneficiaries of this charity in some pursuit adapted to their condition of blindness, and in which they might be useful.

The evidence shows that the society was not in the receipt of any income, and was sustained by the gifts of the charitable and donations made from time to time by the State ; and from these sources indeed the funds had been obtained to purchase the grounds and construct the buildings. It is in evidence that the value of real property on the streets and avenues upon which this property is located, had largely advanced between the time of the acquisition of title by the corporation and the death of the testator in 1853, and it is claimed by the counsel for the heirs, that for building purposes the separate lots of which the plot belonging to the corporation is comprised, exclusive of improvements, were collectively worth over $150,000 in 1852; from which it is argued that the value of the use of the entire premises with its buildings to the corporation was over $10,000 ; this result being based upon the assumption that real estate should yield an income of from seven to ten per cent. And there is evidence rending to show that to be remunerative, real estate should yield such income.

I cannot accept any such conclusion as to the income of this corporation in 1852, nor any result based upon such premises. Notwithstanding the increased value of the land, even though it be accepted as, a fixed one, and not liable to fluctuation, yet it was used no otherwise in 1852 than it had been when originally acquired and improved, and could in no way consistent with its use by the corporation, be made to realize an income upon any basis of increased value in the land. However valuable the property, it could be used only in 1852, as it had been theretofore, for school-rooms, dormitories, workshops, and grounds for the training, instruction, and recreation of the blind inmates. This corporation, an organized charity, in order to keep within the supposed increase of its income, by the increased value of its lands, if devoted to other purposes, should not be called upon, to avoid a forfeiture of its* corporate franchises, to sell its property or curtail its benevolent operations within limits in which it would cease to be useful, and locate elsewhere, and thus put in peril, by constant change of location, the purposes for which the charity was organized.

I apprehend that there is no true relation between income, even if the use of the property by the corporation be regarded as income, and the increased value of the land for commercial or purposes other than those for which they were acquired and fittingly improved. The legislature which created the corporation, was advised from time to time, by its annual reports submitted to it, of the property it held. The document put in evidence,—a report made in 1847,—contains a statement in detail of its property, since which time there is no evidence that its property has been added to, or that it has received money or property other than from the benevolence of individuals, or gifts from the State, to defray the cost of the maintenance and training of its pupils.

Nor am I inclined to regard the use which the corporation derives from the premises in question, for the purposes of the corporation, as “annual income” within the meaning of that term, or of the act of the legislature. Annual income, is annual receipts from property. Income means that which comes in or is received from any business, or investment of capital, without reference to the outgoing expenditures (People v. Supervisors of Niagara, 4 Hill, 20).

The words ‘‘annual income” are not the equivalent of “annual value.” Property may have an annual value without any income (Troy Iron and Nail Factory v. Corning, 45 Barb). 231-247).

Besides, if the value of its use is to be regarded as an equivalent for annual income from the property, such value is not to be estimated upon a fluctuating standard of the value of the real estate, if devoted to other purposes, or the cost of the peculiar improvements made upon it in this instance, but upon its use to this corporation for the special purpose to which it is adapted, from its construction as an asylum for the • blind, or kindred purpose.

And as to this value, there is no evidence that it equals or approximates the limit, to which the corporation is limited by its charter.

For these reasons I am of opinion that all the provisions of the will in favor of the New York Institute for the Blind are valid, and this corporation is legally entitled to take and hold the gifts in its favor.

The Institution for the Instruction of the Deaf and Dumb, to which is given, under the fifteenth clause, $10,000, and which is also entitled, by the terms of the will, to one-sixth part of the residuary estate, was incorporated by an act of the legislature on the 15th day of April, 1817, and was made capable in law of “ purchasing, holding, and conveying ” any real or personal estate for the purposes of the corporation and none other, which at any time shall not exceed the annual income of $5,000. On April 11, 1849, the charter was amended by adding thereto the following :

§ 7. It shall be lawful for the said institution to take and receive by gift, grant or devise real and personal estate or the proceeds thereof, to be used and applied for the purposes of said institution.”

At the death of the testator, the corporation was seized of a valuable estate, upon which was erected the asylum buildings. Since its acquisition by the corporation, the ground had increased in value, and was worth in 1853 over $350,000. But the land and buildings were occupied and used for the purposes of the corporation solely. The State had contributed largely to the construction of the buildings and the improvement of the grounds, and it had made considerable appropriations of money for the support of deaf and dumb patients, received from various senatorial districts under State regulations. But, as was the case with respect to the Institution for the Blind, the corporation held no property which yielded income.

By its original charter the corporation was not enabled to take by devise, but this inability was removed by the amendment of 1849. But I do not regard this amendment as abrogating the limitation as to the amount of property yielding an annual income, which it was authorized to hold by its original charter. The provisions of the charter and the amendment, in this regard, I do not regard as in conflict.

If I am correct, however, in the conclusion reached with respect to the Institution for the Blind, that the use by itself for the purposes of its incorporation of its grounds and buildings is not to be regarded as annual income, and as it had no annual income from any property, real or personal, the provisions in the will in respect to this corporation are valid, and it is entitled to receive the legacies and gifts made to it by the testator.

It may be observed with respect to these three corporations last above named that the restrictions in their respective charters are as to the amount of real and personal property which they might severally take and hold yielding annual income. There is no direct restriction as to gifts of money or property to be used and applied towards the immediate support of the institutions, and their patients or pupils. The maintenance of these charities requires large funds, in excess of the annual income they are authorized to receive from property.

There is • nothing in the will of the testator from which it is to be inferred that it was any part of his design, that these corporations should hold his gifts as investments. They can take and apply the whole to the current wants and necessities of the institution. In this respect the will under consideration differs essentially from that disclosed in Chamberlain v. Chamberlain. There, by the express terms of the will, the moneys bequeathed were directed to be kept permanently invested, and the income only used for the benefit of the college and academy.

It is apprehended that the vice against which the legislation under consideration was chiefly directed, was the ‘ ‘ Jiolding ’ ’ of immoderate amounts of property, real and personal,' by corporations, without reference to casual donations from the benevolent, by bequest or otherwise, for their daily maintenance. I do not deem it important to press this point further, the decision being placed upon the grounds first above suggested.

[The learned judge then discussed the claim of the American Home Missionary Society, and adverted to the decisions of the court of appeals, and concluded that they controlled his decision of this case, and that the question of a distinction in favor of associations within the statutes should be presented in that court.

The opinion then proceeded as follows :]

The result reached is, that the gifts to the unincorporated societies are void.

The bequest to the Marine Bible Society is not saved from such conclusion for the reason that it is auxiliary to the American Bible Society, which is incorporated.

The gift is not to the corporation, for which provision is elsewhere specifically made in the will. The auxiliary society had its own organization and officers. The assignment of the gift by the auxiliary to the parent society, will not enable the latter to take the bequest. If this society had not capacity to take, it had nothing to assign. Nor can the court, by an attempt to approximate to the testator’s intention to devote this specific sum to the work in which the auxiliary society was engaged, transfer the same to the American Bible Society, whose peculiar claims upon the testator’s benevolence had not been overlooked.

By the fifteenth clause of the will, the testator gave to the board of education of the city and county of New York, five thousand dollars .to be applied to the purchase of books for the library of the Free Academy of the city of New York.

By the act of July 3, 1851, chapter 386 of laws 1851, section 2, the board of education was empowered to take and hold property, both real and personal, devised or transferred to it for the purposes of public education in the city of New York, and for the purposes of the act was clothed with the power and privileges of a corporation.

The Free Academy, now the College of New York, is a part of the common school system of the city of New York, under the supervision, management, and care of the board of education, and the purchase and supply of books for its library is clearly within the powers and duties of the board, and among the acts necessary and expedient to enable the academy to be properly and successfully conducted (Subdivision 5 of § 3 of the act).

This gift to the board of education is therefore valid.

By the same fifteenth clause, the testator gave to the board of trustees of common schools of each of the several wards of the city of New York as they might exist at the time of the final distribution of the residue of the testator’s estate, and in which there should be a ward school, the sum of $250 for each such ward school in such ward, to be by them applied to the purchase of books for the establishment or increase of a suitable, school library, for each such ward school in the respective wards.

The right of the board of education to the bequest in its favor of $5,000 is made sure by its capacity to take by devise, which includes bequest, and also by its corporate capacity for the purposes of the act above referred to.

But the right of the boards of trustees of the common schools in the various wards in the city of New York to take the specific bequests made to them, determined strictly through the powers conferred by that act, is not so clear.

Section 3 of chapter 318 of the laws of 1840 provides that real and personal estate may be granted to trustees of any school district in trust for the benefit of the schools of such district.

Section 1 of chapter 261 of the laws of 1841 provides that “ devises and bequests ” of real and personal property in trust for any of the purposes for which such trusts are authorized under the act of 1840, and to such trustees as are therein authorized, shall be valid in like manner, as if such property had been “granted and conveyed” according to the provisions of the aforesaid act.

Section 1, chapter 150, laws of 1842, entitled an act “to extend to the city and county of New York the provisions of the general act in relation to common schools,” extends the powers and duties of trustees of school districts to trustees of ward schools in the city of New York, and provides that “ the trustees of common schools so elected, in their respective wards, shall be trustees of the school districts which may be formed or organized therein, with the like powers and duties as the trustees of school districts in the several towns in this State, except as hereinafter provided.”

But section 40 of the act of July 3, 1851, repealed the act of April 11, 1842, and all other acts and parts of acts inconsistent with, or repugnant to, the provisions of the act of July 3, 1851, and the question now presented is, does the latter act enable the trustees to take, or are the boards" of trustees in question outside the provisions of that act capable of taking the legacies in question %

By section 10 of the act of July 3,1851, it was made the duty of the trustees for each ward, and they were empowered “to have the safe keeping of all the property belonging to the ward schools and primaries in their respective wards.” Also “to hold, as a corporation, all personal property vested in or transferred to them for school purposes in their respective wards.” Now, as far as the title to all school property, real and personal, purchased with any money derived from the distribution or apportionment of the school moneys, or raised by taxation in the city of New York is concerned, the same was, by the provisions of the act, vested in the mayor, aldermen, and commonalty of the city of New York, but was to be under the care of the board of education, in whose name all suits in relation thereto were to be brought. But as all the moneys required for the purposes of common school education in the city of New York, for the construction of school houses and furnishing the same, and for the entire support and maintenance thereof in the manner indicated in the act above mentioned, were derived from the sources named, it would seem that it was not property acquired from these sources which was to vest in the trustees of the ward schools.

The section in question, it would seem, has reference to property acquired otherwise than through moneys derived from the common school fund, or raised by taxation through municipal agency.

All school moneys raised or obtained for school purposes by the provisions of the act went into the city treasury, and were disbursed by and through the agency of the board of education, whose duty it was to furnish all necessary supplies for the schools. No portion of these moneys could come into the hands of the trustees.

Section 16 of the act of 1851, provides that school moneys could only be drawn from the city treasury upon drafts on the chamberlain, drawn by the board of education, signed by its president, made payable to the person entitled to receive the same.

It is quite evident that the testator intentionally and understandingly discriminated, as to the persons or agencies through whom his benevolent purposes with respect to the schools should be carried into effect.

The board of education had the exclusive charge and control of the Free Academy. The school trustees had no concern in its management or its property, and thus a bequest to that board would enable it to receive and apply the money for the use designed by the testator. Nor would the title to the same vest in the city of New York, as the moneys were not derived from the school fund or taxation.

On the other hand, the school trustees for each ward had the more immediate care, control, and oversight of the ward schools of which they were officers under general rules and regulations of the board of education.

The body of school trustees for the respective wards is not a voluntary association. They are officers chosen in pursuance of law, upon whom are cast duties in respect to the schools so as to secure their efficient working. The body has regular succession, and, as trustees go out of office, they account to their successors for all moneys received by them for school purposes. designated the body as a “ board of trastees,” and collectively they are a corporation to the extent of holding property transferred to them for school purposes.

As it appears from the act in question that no part of the property derived from the public funds can vest in them, it must follow that the property which becomes vested in the trustees, and which they may hold for school purposes, must proceed and be acquired from other sources.

I see no difficulty in the boards of trustees of the several wards accepting these bequests, and executing the trust imposed by the will, through the application of the moneys in the manner directed. It is directly within the scope of their general duties. When the moneys are received, they vest in them as trustees, and will be held by them as a corporation. And their application to the specific purposes designated can be compelled. Devises or bequests to trustees for the purposes of founding a library or school create legal and valid trusts (Owen v. Missionary Society, supra).

There is nothing in the act in question from which it can be reasonably argued that in composing this body of trustees, and in providing for its continued succession, it was the intention of the legislature to inhibit its taking by bequest personal property. Beal estate the trustees cannot take by devise. The board of education can so take.

But I am of opinion that the capacity of the trustees to hold personal property, to which extent it is substantially constituted a corporation, would embrace the power to receive by bequest. And such conclusion is in.harmony with the rights and powers conferred upon trustees of school districts by chapter 318 of the Laws of 1840, and chapter 261 of the Laws of 1841.

No sufficient reason can be assigned why the trustees of ward schools in the city of New York, in the absence of express legislation to the contrary, should not take, by bequest, personal property for educational purposes. No such implication arises from the fact that the board of education may take by devise, for by the acts above referred to devises and bequests may be made not only to the commissioners of any town but to the trustees of any school district in trust for the benefit of the common schools of the town.

A defeat of the testator’s thoughtful provision for these ward schools would not be justified except the provisions of the will in this regard are clearly void through express words of a statute forbidding the trustees, to take by bequest, or by a necessary implication • arising from the words used.

For it must be considered that the trustees can hold property for educational purposes—they are so enabled; that such property can be transferred to and will vest in them. Such property could as well vest through the dispositions of a will as by gift inter vivos, and can be transferred by the executors of the deceased into the actual custody of the trustees. Corporations, in the absence of statutes prohibiting, may take all the usual methods of acquiring property.

The next question which arises is: Do the provisions of the will which give effect to these bequests, at the time of the final distribution of the testator’s estate, invalidate the gifts to the school trustees ?

By the twelfth clause of the will, the executors are directed at such time after the decease of his widow as they should think best, not exceeding three years, “ to sell and dispose of all the real and personal estate, of which the testator should die seized or possessed, then remaining unsold, at public or private sale, and to pay off, without delay, the legacies, gifts and bequests named,” but in the closing paragraph of the will, the executors are fully authorized and empowered to sell all the testator’s real estate, at such times as they shall think most for the advantage of his estate.

It was clearly not the intention of the testator to create an illegal suspension of the power of alienation of any part of his estate, nor to postpone its final distribution beyond the period of his widow’s death. That event was really to determine the period for the final distribution among the legatees. The testator’s care was that his widow for life should have ample provision for her support, and to this end the income of his whole estate was pledged. It was not contemplated that the property should be tied up for any purpose, nor was any estate in trust continued in the executors from and after that event.

It is quite clear that from and after the death of Mrs. Holbrook, the only remaining authority in the executors was a power and absolute duty to sell and distribute the estate and its proceeds. In legal effect the will contemplated distribution at that time. Its provisions are constructed upon that basis. Ho purpose was to be subserved by any postponement, and in construing the will a conclusion should not be adopted which would involve an illegal rather than a legal purpose when the latter fairly and reasonably arises from the language of the testator. It is unreasonable to suppose that a sale of the real estate could be made immediately upon or after the death of the widow. Such disposition must of necessity require some time to arrange its details as to the manner and time of sale, and an adjustment perhaps with tenants ; and time for such purpose has never been regarded as a postponement of the vesting of an interest in the devisee or legatee.

The testator provided only in effect that the sale should in no event be delayed beyond three years. This was not an unwise direction in the light of experience in such cases, but was an injunction to avoid delay in closing up the estate.

But such injunction against postponement beyond that period does not suspend the power of alienation for any period after the widow’s death, for there was a general authority to sell at such times as the executors think best, under which power the property could have been, sold even in the lifetime of the widow, and a distribution have been made immediately thereafter (Converse v. Kellogg, 7 Barb. 590 ; McKinistry v. Saunders, 2 Sup. Ct. [T. & C.] 200-202; Manice v. Manice, supra).

Nor was. there a moment of time after the death of Mrs. Holbrook when there were not school trustees legally constituted and clearly indicated by the will, who would immediately take into their actual possession, and to the use intended, the bequests in question.

But another question arises at this point with respect to these bequests, from the words of the will. The bequest was to the board of trustees of each of the several wards as they may exist at the time of the final distribution of the estate. The testator seemed to contemplate as likely to occur in the future what had transpired in the past, a change in the boundaries of the city wards, which might let in before the death of his widow, new boards of trustees in new wards, carved out or otherwise constituted, from existing wards. The intention of the testator was to provide for all ward schools which might be in existence at the time of the death of his widow, within the territorial limits of the city as existing at the time of his own death. I do not think the provision can be extended to embrace schools in wards created in territory annexed to the city limits since the testator’s death. Whilst he did contemplate that by increase of population old wards might be divided and in this way new ones created, he did not provide for schools in territory to be after acquired.

In this view the bequest being determined to be legal, the board of trustees of each of the several wards within this limitation, in which a ward school above the grade of primary existed at the death of Mrs. Holbrook were entitled to take, and took $250 for each such ward school.

By section 6 of the act of 1851, above referred to, all the schools organized thereunder are designated “ward schools,” or “ward primaries,” and each class are directed to be numbered consecutively according to the time of their organization or adoption.

- The schools in each class, presumably at their organization or adoption, have been numbered by the school authorities, so that at the time of the death of the testator the “ward schools,” according to a consecutive numbering, had reached the number of forty-six, and at the death of Mrs. Holbrook, had increased to fifty and upwards.

These schools were all above the grade of primary, and are ordinarily called grammar schools. But these schools so numbered, consisted in nearly every instance of two, and in may instances of three departments, completely organized and maintained in the same building, known as male, female, and primary departments—the male and female departments being each a distict grammar school. In the year 1852, in a report made by the board of education, filed in the office of the clerk in the city and county of New York, in pursuance of the act of 1851, under the general head of ward schools, the departments are classified as “ male schools,” “female schools,” and “primary schools.” This division of the ward schools above the grade of primary into separate departments proceeds from the fact that there is practically no mixed education of the sexes in the common schools of the city of New York— the boys and girls being taught in separate schools or departments, and generally as an economical arrangement, and for convenience as to locality, in the same building, especially constructed for such purpose.

According to the testimony of Mr. Davenport, the deputy clerk of the board of education, at the time of the death of the testator there were eighty-seven schools—that is, departments—above the grade of primary, and which were grouped and organized in forty-six school houses ; of this number, thirty-eight were for girls and forty-nine for boys.

Although two departments are in the same building and each is recognized by the number which marks the building, these departments are in fact entirely separate schools, as much so as if they occupied separate buildings. Each has its own principal, vice-principal, and teachers, and occupies its distinct part of the building, as does a primary school when in the same building with the grammar school.

The testator had in his lifetime been a school officer and the president of the board of trustees of his ward. He was a frequent visitor of the schools and took great interest in their success and usefulness, and in his life time had made donations to the schools in all the wards, and well knew of the distinct organization of the grammar schools, and of the grouping and instruction of the boys and girls in separate schools called departments.

He was conversant with the fact that in the same building both the grammar and primary departments were separately organized, and that the number designated not only the building but each department, whether grammar or primary.

I am of the opinion that it was the intention of the testator to regard each department, boys and girls, as it is in fact, a separate ward school, and that the board of trustees took for each such school a gift of $250. The testator may have appreciated the practical difficulty of the selection of books for a common library for the two sexes, and of its inconvenient administration in a system where a known policy prevailed of educating the boys and girls in separate schools.

These legacies, as already observed, vested in the trustees for the purposes declared in the will at the death of Mrs. Holbrook.

In Manice v. Manice, Rapallo, J., says that “it may be laid down as a general rule, that when by a will, shares or interests in real or personal estate, to be ascertained by a division, are given, or where the real estate is directed to be sold and the proceeds divided, the estate or interest of the devisee or legatee in the property to be divided or converted, is a vested interest upon conversion or division.”

In that case it had been objected that, according to the terms of the will, a trust was created, to commence at the time of the death of the widow, to appraise, sell, and divide the property, and that the intention of the testator and the legal effect of the will were to vest the entire estate in the trustees and render it inalienable while the trust was being performed.

But it was held that time so consumed, although protracted, did not render the dispositions of the will invalid, nor prevent the vesting of interests in the legatees or devisees.

A question arises as to who is entitled to the income, rents, and profits derived from the estate from and after the death of Mrs. Holbrook.

And first, it is claimed by the legal representatives of the widow, that there should be an apportionment of the rent for the month or quarter as the case may be, ending next after her death—she having died intermediate the beginning and ending of the month or quarter. The testator having given all the rents and profits to his widow during her life, the claim for the rents up to the day of her death, although it involves' an apportionment, would seem to be equitable and just, and according to the manifest intention of the testator, and should be allowed, unless contrary to the principles of law or adjudged cases. [Some remarks in this connection on the power of trustees to lease, are omitted.] The fact that the trustees gave leases whose terms extended beyond that event, affords no sufficient reason why a proportionate part of the rent, and up to her death, and with respect to which she presumably adjusted her living, should not be allowed to the legal representatives of the estate of the tenant for life.

The provision of the will, being accepted in lieu of dower, should have generous construction. It is true that equity follows the law, and will not interfere to disturb the right of the reversioner to rent falling due after the commencement of his estate in possession. In Marshall v. Mosely, 21 N. Y. 280, the testator had given a lease for a term which ran beyond the life of the tenant for life. In such case the life tenant took her estate charged with the lease and all its legal consequences and burdens. It was there held that the rent falling due for the quarter next after her death, according to the common law, could not be apportioned, and equity could not interfere.

The present case more nearly resembles Paget v. Gee, 1 Ambler, 199 ; Exp. Smyth, 1 Swanst. 337; where the rent was apportioned. And I am of the opinion that there should be an apportionment here (1 R. S. 5th edition, 747, §§ 16, 22).

There is no distinct reference made in the will to the income and profits of the estate accruing after the death of the tenant for life ; nor is there any disposition made of them specifically by the testator, which would seem further to show an intention on the testator’s part that there should be an immediate conversion and distribution of his estate, among those entitled thereto, after the death of his wife, leaving the least possible time for any income to arise, and that whatever increase might arise from such source should belong to those to whom his estate, after the payment of the specific sums directed to be paid thereout, was given (Manice v. Manice, supra).

These rents and profits are now claimed by the heirs-at-law of the testator, upon the supposed ground that until sale the title vested in them.

In Moncrief v. Ross, 50 N. Y. 431, a similar claim was made by the heirs of the testator, to the exclusion of those to whom the proceeds of the estate, after a sale directed to be made, was given.

But it was there held that the will then under consideration gave the executors no title to the real estate, or right to receive the rents and profits ; that the title did not descend to the heirs, nor were they entitled to the rents and profits, but that through the absolute power of sale with which the executors were intrusted, the land was equitably converted into money, and that the entire proceeds, including rents received after the death of the tenant for life, belonged to those to whom the proceeds to be realized on the sale of the lands was given.

GtBOVee, J., in terms held “that any income derived from the real estate, before the sale had been made, belonged to the sisters,” the persons to whom the proceeds of the sale was given (Rogers v. Ross, 4 Johns. Ch. 397).

By the will of Mr. Holbrook, the entire proceeds, after the payment thereout of the specific sums given, and directed to be paid therefrom to various persons and societies by the fifteenth and preceding clauses of the will, is devised and bequeathed by the sixteenth clause to Samuel R. Betts, and to the several institutions named as the devisees and legatees of all the rest, residue, and remainder of the testator’s estate.

In pursuance of this devise and bequest, I am of the opinion that upon the death of the widow the real estate vested in such persons and societies, the dispositions in whose favor are herein adjudged to be valid, as were capable in law of taking real estate, subject, however, to be divested by the excution of the power of sale, and subject to the payment therefrom and the proceeds of the sale, of the legacies and gifts herein declared to be valid, and to the heirs of the testator of the sums included in the gifts declared to be invalid. But this conclusion does not necessarily entitle such persons and societies to the whole income thereof, which has been in fact collected by the executors. But that five-sixths of said income belongs to, and should be distributed amongst the residuary legatees, except the Home Missionary Society, each to have one-sixth thereof, and the remaining sixth goes to the heirs-at-law of the testator.

This result I believe to be in harmony with Moncrief v. Ross, supra, and also substantially so with Wright v. Trustees of the Methodist Episcopal Church, Hoffm. 202. [The determination of a question of interest and a reference to an apportionment of expenditures, not involving an expression of opinion of general interest, are here omitted.]

Having considered the objections urged to the gifts of specific sums made to the various persons and societies to which exception has been taken, and having come to the conclusion that certain gifts are invalid, the question arises: what becomes of the subject of such gifts \

General residuary legatees take whatever personal estate is not legally disposed of, but it is otherwise with respect to real estate (Banks v. Phelan, 4 Bard. 80).

The residuary clause in a will does not, in general, embrace real property which the testator had designed to give to other persons than the residuary legatees (Van Kleeck v. Reformed Dutch Church, 20 Wend. 457).

It appearing that the personal estate was not much more than sufficient to satisfy the debts of the testator, and the gifts contained in the clauses of the will anterior to the fifteenth, the real estate must needs be sold, under the powers conferred, to satisfy the gifts provided for in the fifteenth clause, as it must be for division and distribution. It has already been concluded that all the real property was, under the direction of the testator to sell, equitably converted into personalty for all the valid purposes of the will.

“ Where a sum of money, part of the proceeds of real estate, is in terms given to an object incapable by law of taking, the authorities respecting its destination are conflicting” (1 Jarman on Wills, 568).

The preponderance of authority is, however, in favor of the heir. Smith v. Claxton, 4 Madd. 484, holds that “when land is devised to be sold, and there is a partial failure of the purpose of the devisor, but there remains some purpose of the devisor to be answered by a sale, then the heir takes the benefit of the partial failure. He takes it, however, as money. Where there is a total failure, the heir takes the land as real estate” (Yates v. Compton, 2 Pierre Williams, 308 ; Bartholomew v. Merredith, 1 Vern. 276; McCarthy v. Terry, 7 Lans. 236 ; Williams v. Coade, 10 Vesey, 500 ; Ackroyd v. Smithson, 1 Brown Ch. 503; Maugham v. Mason, 1 V. & B. 410; Wright v. Meth. Episcopal Church, Hoffm. 202 ; Hawley v. James, 7 Paige, 213; Wood v. Cone, 7 Paige, 471; Wood v. Keyes, 8 Paige, 365).

In the case of Bogert v. Hertell in the court of errors, supra, it is stated, per Nelson, Ch. J.: “But if, notwithstanding á partial failure, the purposes of the will still require the conversion, though the heir takes the share, failing the devisee, he takes it as money, that being the state into which it is directed to be converted, and not as land. Now, so far as regards this undisposed-of interest, that goes to the heir, and is not to be distributed according to the purposes for which it was directed to be converted, that is, the purposes of the will. It is not, I admit, considered strictly as belonging to the personal estate of the testator, or as constituting a part of the general assets ; but it is regarded, by this total or partial failure, as' having become separated from the mass of the personalty, and held by the executors as trustees for the heir, or those to whom it may belong.”

In Hawley v. James, 5 Paige, 444, the chancellor says: “ But where the object of the conversion fails either wholly or in part, whether such failure be occasioned by the incapacity of the devisee or legatee to take, or because of the illegality of the disposition attempted to be made of the converted property, or of any particular interest or estate in such property, or from any other cause, there will be a resulting use or trust or estate in the property, or in so much thereof as is not legally or effectually disposed of, in favor of those who would have been entitled to such property, if the conversion thereof had not been directed by the will ” (Gott v. Cook, 7 Paige, 534).

King v. Woodhull, 5 Edw. Ch. 82, seems, however, to hold that the subjects of the void gifts sink into the residuary estate, and pass to the residuary legatees.

For the reasons hereafter stated, Ido not think that the terms of the sixteenth, controlled and modified in this regard by the seventeenth clause of the will, are sufficient to carry the gifts adjudged void, to the residuary devisees and legatees, and so much of the proceeds arising on the sale of the real estate as would be necessary to satisfy these gifts must be paid to the heirs-at-law of the testator.

The remaining question—and it is one of great importance—arises out of the sixteenth and seventeenth clauses of the will, and involves a careful consideration to reach a proper construction of their provisions in relation to the disposition of all the rest, residue and remainder of the testator’s estate. It has been decided above that the American Home Missionary Society, one of the devisees and legatees interested in this residue, from the fact of its being a voluntary, unincorporated society, is incapable, as well in law as in equity, of taking any portion of the testator’s estate.

The question which then presents itself, and which has been discussed with ability by the counsel, is—does the will dispose of the subject of the invalid gift ? or did the testator as to it die intestate ?

The first question which arises under this head is whether the devise and bequest contained in the sixteenth clause, to Samuel R. Betts and five societies, of the rest, residue, and remainder of the estate, is made to them as a class, as is claimed by the counsel for the other residuary devisees and legatees, or whether a distinct share is given to each. If made to them as a class, the want of capacity on the part of either of the residuary devisees and legatees would not vest such void share in the heirs or next of kin of the testator, but the survivors of the class would take the same. The rule is otherwise if the gifts were to the person and societies nominatim, a fixed sum or proportion to each. A part of the residue, of which the disposition fails, will not accrue in augmentation of the remaining parts as a residue of a residue, but instead of assuming the nature of a residue devolves as undisposed of. (Skrymsher v. Northcote, 1 Swanst. 570; Beekman v. Bonsor, 23 N. Y. 298).

By the sixteenth clause of his will the testator gave to Samuel R. Betts, and to the five societies named, all the rest, residue, and remainder of his estate, “ whatever the same might be, in equal divisions thereof, being one equal sixth part to each person, association, institution, asylum, or society mentioned in the article.”

Under the decisions, it would seem that this is not a devise or bequest to the person and societies named as a class, but is a gift of one equal sixth part of the residue to each of them nominatim.

Had the clause stopped with the words “whatever the same may be,” it might well have been considered a complete gift to a class. But the testator goes further, and uses language which qualifies all that has gone before, and gives to each “ one equal sixth part.”

In White v. Howard, supra, the testator directed that whatever remained of the trust fund should be divided “equally between the following six-societies,” naming them. But the gift was not accompanied, as in this case, with the words, ‘ ‘ one equal sixth part to each.” Yet, in that case, some of the societies being unable to take, and the provision in their favor having been adjudged void, their portions did not go to increase the shares of the remaining two societies who were able to take, but went to the heirs-at-law of the testator. It is true, that the two societies, in that case, who took their respective shares, did not appeal to the court of appeals, but acquiesced in the judgment of the supreme court, and it may be that the court of appeals did not at all consider the question as to whether the two societies named were not entitled as survivors to the shares pronounced invalidly disposed of. Grover, J., says: “The two defendants last-named have not appealed from the judgment, and cannot, therefore, ask for any modification thereof favorable to them.”

But the supreme court at special and general term held that the void shares did not vest in the surviving residuary devisees but in the heirs of the testator’s only daughter, his sole heir (Downing v. Marshall, supra).

The case of Chamberlain v. Chamberlain, supra, with the appended note by the reporter, is cited by the counsel for the residuary legatees who are capable of taking, as sustaining the position that if any of the residuary devisees or legatees cannot take the provisions in their favor, their portion of the residue, under the clause in question, vests in the other devisees and legatees, and not in the heirs at law of the testator. In that case the testator directed that all his estate not otherwise disposed of, be divided into two equal parts, one of said parts to .be paid to the Centenary Fund Society, and the other of said parts to be paid to the Trustees of the Chamberlain Institute.

The societies were respectively corporations, and were limited by their charters as to the amount of property they could take and hold. Besides, the testator had undertaken to give the two corporations, in the aggregate, more than one-half of his estate.

Allen, J., in his opinion held, that “if the two legacies, when ascertained, shall, in the aggregate, exceed in amount the one-half of the estate, after the payment of just debts, they must be reduced by proper deductions. If the amount payable to the Chamberlain Institute shall not exceed the one-fourth of the estate, that is the one-half part of that which may by law be given to charitable institutions, no deductions will be made from it, but the deductions will be made from the bequest to the Centenary Fund Society, to bring the amount within the statutory limit. That is, these deductions must be made from each so as to bring them within the one-fourth of the estate to which each is entitled.”

By the note at the end of the case it appears that the decision was modified, it being held that ‘ ‘ If the Chamberlain Institute, by reason of the restrictions imposed by law upon its capacity to take and hold property, shall be incapable to take and hold its one-fourth of the estate of the testator, after payment of debts, &c., the Centenary Fund Society will be entitled to take, to the extent of its capacity, the residue of the one-half effectually bequeathed by the eighteenth clause of the will, to those two corporations.” ,

I cannot perceive that such modification allowed to the Centenary Fund Society anything more than the testator in words gave it. He could legally bequeath to these good purposes one-half of his estate. He did, in fact,, give one-half to each society, and in taking the residue of one-half, after deducting what the Chamberlain Institute could legally take and hold, the Centenary Fund Society did not then succeed to as much of the testator’s estate as was in terms given to it.

•This case gives no support to the suggestion that the devise and bequest was to the legatees as a class, or that the fund was distributed by the court upon any such basis. The case of Hoppock v. Tucker, 59 N. Y. 202, contains a careful examination of this subject, lately made. The will of H. divided his residuary estate into six equal parts, corresponding to the number of his children. One part, after deducting a specific legacy, he bequeaths in equal proportions, share and share alike, to J. H. and W. E., children of his deceased daughter, A. M. W. E. died leaving no descendants, previous to the death of the testator. The question was whether the share that would have come to him, had he outlived the testator, lapsed or survived to his brother named as the representative of a class.

Church, C. J., said, “ It must be conceded that the clause, as it is written, with its double description, free from influence or control of other portions of the will, would, according to the adjudicated cases, be construed as a personal legacy to each child. The law infers this intent from the specification of names, and regards the descriptive portion of the clause as intended for identification.” The chief justice, however, adds : “ An intent, inferable from the language of a particular clause, may be qualified or changed by other portions of the will, evincing a different intent.” He then proceeds to a critical examination of the other portions of the will, and arrives at the conclusion, that it was the intention of the testator to “regard the children as taking as a class,” and also to “ dispose of his entire estate,” and adds, as the result of his examination of all parts of the will bearing upon the question of intent, “It is quite clear, therefore, that the legacy to the deceased child of Mrs. Tucker could not be disposed of as in case of intestacy against the expressed intent to dispose of all the property.”

And this brings us to the consideration of the remaining question, the testator’s intention to be gathered from other portions of the will, and which expressed intention must control in the disposition to be finally made of the case.

In cases of doubtful construction of parts of a will, such reasonable view should be adopted as will give effect to the intention of the testator, if it can be done without violating the rules of law.

The maxim from Colee upon Littleton, 322, “ Quod ultima voluntas testatoris est perimplenda secundum ver am intentionem suam,” was invoked by the senior counsel for the plaintiffs, both as a safe guide and controlling principle in the judicial construction of the writing, by which the testator has made an intelligent and discriminative disposition of the property, which, by activity in commercial enterprise and prudence, he had himself accumulated, as his reason and conscience approved. But we should not be insensible to the other rule, that the heir is not to be excluded without an express devise, or an implication so strong that an intention to the contrary cannot be supposed (Jarman’ s Fifth Rule).

In the opening sentence, the testator, “being of sound and disposing mind and memory,” declares the purpose of his last will and testament, “intending hereby to dispose of all the estate, both real and personal, of which I may be seized or possessed, or to which I may be entitled at my decease.”

The introductory part of a will is admitted to have some effect in the construction of subsequent devises (Earl v. Grim, 1 Johns. Ch. 494). In Youngs v. Youngs, 45 N. Y. 254, Grover, J., gave effect to the language of the opening sentence of the will, which, in its terms, was not so expressive as that used by the testator in the case under consideration. This learned judge, after quoting the words from the introductory part of the will, says: “This clearly indicates the intention of i;he testator to make the will speak at the time of his death, and to dispose thereby of such property as he might at that time own, whether real or personal.” This intention appears to have been at no time absent from the mind of the testator. Having in the previous provisions of his will made bequests to relatives and friends, in the ninth clause he is careful to provide that if any of the legatees should fail to claim their legacies within a time by him limited, or in the event that either of the legatees should die in his lifetime, the testator directs that the amount of such legacies should form a part of his general estate.

The testator then, in the clauses of the will which have heretofore been considered, proceeds to make provision in detail for such other persons and societies, as in his judgment had claims upon his bounty, and then adds this unusual clause :

Seventeenth. It is my will and desire that none of the devises and bequests contained in this, my will, should fail or be rendered void by reason of the misnaming of any individual or institution, but that the same should be carried into full effect, without regard to any such misnomer, if such individual or institution can be ascertained with reasonable certainty; also, should any individual or institution named in this, my will, not have existence at my decease, or be so improperly named as not to be ascertainable with reasonable certainty, or should any individual or institution be named by me in mistake, there having been no such person or institution ; then in all such cases my will is, that the amount so intended for such institution or individual, shall lapse and be merged in my general estate, and form a part of the rest, residue, and remainder thereof.”

The provisions of the seventeenth clause apply to all the devises and bequests contained in the will, not only to those contained in previous clauses, but to those embraced in the sixteenth clause,—“ none of the devises and bequests should fail,” for the causes enumerated by him.

The question then arises, are the gifts contained in the fifteenth and sixteenth clauses of the will, which have been declared to be void, disposed of by the seventeenth clause, or as to them did the testator die intestate ?

And first it is to be observed, that the testator has been careful to state the grounds of failure, through which the amount intended for any institution, should be merged in his general estate, and form a part of the residue.

The enumeration of specific grounds would seem to exclude any other, unless the intention of the testator to actually dispose of his whole estate to which allusion has been made, can be aided by construction, and extended to embrace other causes of failure, for which no express provision has been made. The sole ground upon which the gifts to the American Home Missionary and other societies, similarly situated, has been declared to be void, is that they were voluntary, unincorporated, charitable societies. This ground of exclusion is clearly not within the causes mentioned in the seventeenth clause. There has been no misnaming, nor is there difficulty of ascertaining these societies. They severally, had existence, not as corporations it is true, but each was a living organized society in full operation;—nor was any of these institutions named through mistake. It is quite evident that the testator did not regard the want of corporate existence on the part of any society, as any reason why it should not take the gift in its favor. He evidently considered, from the number of such societies selected as objects of his benevolence, that the fact of their being voluntary organizations was no valid reason why they should not participate in his bounty. The able counsel who prepared the will, without doubt, also, so judged, and there was reason for such conclusion found in decisions of the courts theretofore made. Hornbeck v. American Bible Society, 2 Sandf. Ch. 133; Potter v. Chapin, 6 Paige, 639; Banks v. Phelan, 4 Barb. 80, recognized the right of an unincorporated charitable society to take by bequest. The testator intended without doubt that they should take, and supposed that he had in fact disposed of all his estate, and by the seventeenth clause anticipated and stated all the grounds through which any gift might by any reasonable cause fail, and he had attempted to provide against the consequences of such failure.

When it is stated that the intention of the testator must be fully carried out, and that there must be reasonable construction exercised, to give full effect to such intention, it should also be stated that there are certain rules by which the court, in construction, is itself controlled.

The province of the court is to ascertain the intention, which the will itself expresses, or, by implication, declares. In Abbott v. Middleton, 7 H. L. C. 91, Lord Ceanworth says: “ It is not the duty of a court of justice,to search for the testator’s meaning, otherwise than by fairly interpreting the words he has used,” and in the same case, Lord Wensleydale : “The use of the expression, that the intention of the testator is to be the guide, unaccompanied with the constant explanation that it is to be sought in his words, and a rigorous attention to them, is apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do, instead of strictly attending to the true question, which is, what that which he has written, means. The will must be expressed in writing, and that writing only is to be considered” (p. 114). In construction, words are to be taken in their ordinary, proper, and grammatical sense; unless it be apparent from the connection in which they are used, that they were intended in an extended or abridged sense.

And no meaning should be given to words, other than that they are reasonably capable of bearing.

The only clause used in the seventeenth paragraph of the will, which could for any reason be held to embrace the ground, upon which the American Home Missionary Society is excluded is, “should any institution named in my will not have existence at my decease.” The only way effectually to aid that clause, to enable it to embrace the ground of exclusion of the Home Missionary Society, would be to write in the will the word “ corporate” before existence. That we have no right to do. It would be to import into the will a provision not contemplated by the testator, to avoid a contingency upon which he had not calculated.

For these reasons, I am of the opinion that the subject of the gifts to the American Home Missionary Society, and the other societies, which have been decided to be invalid and left beyond the operation of the will, the same being the proceeds of real estate directed to be sold, go to the heirs-at-law of the testator (Lloyd v. Lloyd, 4 Beav. 231; Green v. Pertwee, 5 Hare, 249 ; Salt v. Chattaway, 3 Beav. 576; Simmons v. Rudall, 1 Sim. N. S. 115 ; Skrymsher v. Northcote, supra).

And the case of Humble «. Shore, 7 Hare, 247, would seem to decide, that even if the void gifts were, by operation of the seventeenth clause, carried to the residue of the estate, the subject of them would still be undisposed of ; for in that case, where a gift, by a will, of one-sixth of testatrix’s residuary estate to S.W., revoked by a codicil, and the same sixth given to S.W. for life, with a direction, after her decease, to pay a legacy thereout, and the remainder of said sixth should sink into the residue of the testatrix’s personal estate, and be disposed of accordingly. It was held that remainder of the sixth of the residue was not thereby given to the other residuary legatees, but was undisposed of.

The language of the seventeenth clause of the testator’s will in regard to the final disposition of the void gifts is not so comprehensive as in Humble v. Shore. It simply provides that they shall form a part of the rest, residue and remainder of his estate, and gives no express direction as to their ultimate destination.

I have considered all the parts of the will which have been presented for construction and judgment, and have reached conclusions with respect to all the devises and bequests concerning which questions have arisen by which the rights of all claimants are decided, and the estate may be divided and distributed among those who are declared to be legally entitled thereto.

Although some of the questions are new, and others involved in conflict of decision, yet I have endeavored to reach a result in harmony with the intentions of the testator, gathered from the language of the will, and to give effect to such intentions so far as the dispositions made by him are legal, by the application of approved principles of construction and the rules and principles of law and equity applicable to such cases.

[A reference to some questions not disposed of is omitted.]

Judgment ordered accordingly.

On the settlement of the judgment, Mr. Maltby, for the heirs-at-law, objected to the granting of an extra allowance, in addition to costs, asked for by other parties.

C. Wyllys Betts, for the executor.—I. When the whole will is in controversy, through the testator’s use of careless or ambiguous language, the whole estate must bear the cost of an authoritative construction (3 Br. C. C. 27; 6 Ves. 349; 1 Sch. & Lef. 12; 3 P. Wms. 303 ; Wood v. Vanderburgh, 6 Paige, 277). It will be seen that these decisions do not apply to the suit for the construction of the will of Ephraim Holbrook. For as the questions before the court arose, “ not so much from any obscurity in the language of the instrument, as from an apparent conflict in decisions with respect to the same,” no questions have arisen here from the testator’s fault. It appears also that this suit would not have been brought by the legatees. In strong contrast appears the pleadings and briefs of the heirs-at-law. Reason and justice demand those who have brought this suit upon the estate should themselves bear its expense.

II. The costs and charges should not be paid out of the general residue, but out of the fund in controversy (Smith v. Smith, 4 Paige, 271; Rogers v. Ross, 4 Johns Ch. 608 ; Martineau v. Rodgers, 8 De Gex, Macn. & G. 328, 335; Jenour v. Jenour, 10 Ves. 562; Atty. Gen. v. Lawes, 8 Hare, 32; Re Cawthorne, 12 Beav. 56). This rule is also recognized in Trick’s Trusts in 1869 (L. R. 5 Ch. App. 170 ; Row v. Row, L. R. vol. 7, Eq. Cas. p. 414, 1869 ; Barton v. Cooke, 5 Ves. 461; Nisbett v. Murray, Id. 149 ; and 41 N. Y. 514-5).

III. The well-recognized rule of law, that the intention of the testator should be carried out, so far as the power of the court extends, demands that all the legacies which he has validly bequeathed be paid to the dollar. He has validly bequeathed five-sixths of the residue, and by the words, “the residue of my estate,” he meant the whole estate, after paying the legacies of stated amount, and executors’ commissions, and other usual charges of administration. He did not contemplate this expensive suit, which the heirs have brought upon the estate; and its cost should not be charged upon the validly bequeathed shares of the residue, any more than upon the valid legacies of stated amount (Harris r. American Bible Soc., 2 Abb. Ct. App. Dec. 316). The first fund should be the invalidly bequeathed portion of the estate. The second, the validly bequeathed residue. The third, the income (108 Mass. 283). The fourth, the valid specified legacies.

The Court, after consideration,

Held, that allowances could be granted to both parties, including legatees defendant, who were not successful, not exceeding $2,000 in the aggregate to each side, the allowance to the attorneys for the executors to be without prejudice to such additional sums for counsel fees and charges incurred by the executors as should be found due upon a reference ordered for this and other purposes.

It was further adjudged that one-half of the allowances and taxed costs be taxed upon the five valid shares of the residuary bequest, and that the other half be charged upon the shares which went to the heirs-at-law.

The subject of costs and allowances to the executors, &c., was referred to Henry J. Scudder, Esq., referee, and the following opinion was rendered :

Scudder, Referee.—The learned counsel for the executors and plaintiffs herein contends, with no little ingenuity, that the construction hitherto given in practice to the statute, allowing commissions' to executors is erroneous, and that such commissions should be allowed upon a principle of classifying sums instead of aggregating them. Thus, in an estate of $100,000, if the sums received and paid out should be in items of $1,000 each, five per cent, should be allowed.

I have no doubt that a sufficient answer to this claim on the part of plaintiffs’ counsel would be found in the long and uniform construction, not only of the court in which the matter is pending, but that of the surrogates and of the masters in chancery and referees before whom the question of proper allowance of commissions has heretofore arisen; and, so far as I can learn, the rule of construction adopted by Chancellor Kent in 3 Johns. Oh. and subsequently formally enacted by the legislature into a statute, has been uninterruptedly and consistently adhered to. I have never known it, until now, questioned in practice or doubted in the decisions.

But aside from the weight of this long run of usage and authority, is there anything in the statute that would support the plaintiffs’ claim, if it were one of first impression ? I think not.

The language “for receiving and paying out all sums of money, not exceeding $1,000,” clearly imposes a limit where the application of the five per cent, ceases. Is this limit of class or aggregation ? If of class, an easier and more direct way rested with the legislature to designate it, and it is a wise rule in interpreting statutes to consider the legislature as using the shortest and best mode of conveying their meaning. If the intent had been to give five per cent, upon “each” sum not exceeding $1,000, the particularizing word-•would have been used. The phrase would have been clear, and its understanding admit of no dispute. The language actually employed is the reverse of this ; it is of an aggregating nature—“all sums.” No matter how many, but “not exceeding.” Not exceeding how? Clearly, in the ordinary and usual sense of these words, in that “all sums do not exceed $1,000”—not “any sum,” or “each sum,” but the comprehension of the whole sums. The force of the “plural” must not be overlooked in this statute. The use of the “singular ” would be the opposite of the thought conveyed in the plural. Yet it is the singular form in fact, that the plaintiffs contend should be the one controlling the meaning, and without resort to which, there could certainly be no foundation for their argument. This view is strengthened by the phraseology of the next paragraph of the statute, where the word “any” is used in place of “ all,” but as the qualification still of the plural “sums,” and directly connected with the word “amounting,” in order to make an aggregate that shall form a limit where again the application of the two and a half per cent, ceases.

In the next paragraph the restriction is removed altogether, and the language is harmonious with such removal. I see no importance in the preposition “of.” It is artificial, but in or out of the sentence has no governing power. Its provincial tone would incline one to attribute the wording of this portion of the statute to a person not thoroughly used to the elegancies of diction, but it demands no other criticism.

I need not enlarge upon this statute. It impresses me so deeply with the possession of but one meaning, and that the customary one, that I must deny the plaintiffs’ application, and allow commissions according to the usual mode of computation.

The counsel for Mr. Frederick J. Betts, one of plaintiffs, also asks that there be an allowance in the form of extra compensation made to this executor, and rests his claim upon the peculiar circumstances under which Mr. Betts assumed the charge of the estate, the character of the will, the residence of Mr. Betts, and some instances where great care and intelligence were required in the proper and prudent administration of the property held by the executor. I recognize in the devotion and fidelity of the executor, a very proper foundation for the enlargement of the compensation afforded by the statute, if any rule or decision permitted an increase of his statutory remuneration ; but I find no authority in favor of such increase, and very decided against it. In Collier v. Munn, 41 N. Y. 143, a claim upon principle exactly analogous with this, formed one of the subjects of discussion by the court, and the opinion is so directly applicable, so clear and so thorough, that I need only refer to it and the case, as disposing of the demand in this respect.

A further claim is made under the statute of 1863, chapter 362, for the allowance provided, upon the settlement of executors’ accounts, for counsel fee, not exceeding ten dollars for each day engaged in preparing for settlement. I think this is a proper allowance, and as there is evidence that fifty-six days were devoted to the preparation, five hundred and sixty dollars, in addition to the usual commissions, will be allowed the executors.

Mr. Benedict’s claim for commissions upon sums received and paid out prior to his qualifying as executor, seems to me to be determined by the statute itself.

Section 8 of chapter 362, Laws 1863, has this language : “On the settlement of the account of an executor or administrator the surrogate shall allow to him for his services, and if there be more than one shall apportion among them according to the services rendered by them respectively.” * * “ For receiving and paying out all sums of money,” &c., &o. * *

The purpose is obviously to provide, 1st, compensation to the executor for services rendered by him; 2nd, to determine the amount of such compensation. Up to the time of Mr. Benedict’s qualifying as executor, he rendered no services, and hence, there was no foundation upon which to rest any compensation. There was nothing to compensate. This matter of commissions is not to be treated upon the principle that controls the executor’s title to property, but as a subject of compensation purely, and as no services were or could have been rendered before the executor qualified, so no commissions can be allowed until that time.

Commissions are also claimed upon a sum received by the executors upon the sale of a portion of the estate, and afterward invested in order to produce income. I apprehend, however, that this is not that condition of receiving and paying out which entitles an executor to charge commissions. The executors here were charged with a trust continuing through the life of Mrs. Holbrook, yet held the estate as executors ; and hence, the rule adopted in Valentine v. Valentine, 2 Barb. Ch. and approved in Drake v. Pine, 5 N. Y. 430, controls, and they can receive commissions only upon the aggregate of the capital and income as received once and paid out once (See also Dayton Surrogates, 535).

Bests are contended to have been made by reason of a necessity to avoid overpayment to Mrs. Holbrook ; but I do not understand such a rest as the courts require, in order to allow the executors to enter upon a new account to have occurred after the settlement of the accounts in 1868, down to the time of the death of Mrs. Holbrook. That an executor may make annual rests by passing his accounts before a proper tribunal seems undisputed, but, unless he do so, there appears no sure ground upon which a rest can be sustained, except the compulsory one sometimes resorted to by the courts, in order to charge the executors with interest upon funds held or used by him individually. I cannot, therefore, allow the rests claimed for the purposes they are urged.

As to Mrs. Holbrook’s commissions:

The personal estate is conceded on all sides to have been more than $100,000. Mrs. Holbrook qualified as executrix, and joined in several important acts. She gave no special personal attention to the management of the estate, and if her right to commissions rested alone upon actual services rendered, the allowance to her would properly be measured upon a small standard ; but in estates exceeding $100,000, the statute peremptorily fixes an allowance for each of the executors not exceeding three. This case comes within the statute, and commissions should be allowed her on sums received and paid out on what is called the general account.

Upon the commissions so to be allowed, the executors now acting claim commissions. I see no good reason for such claim. It is not upon every act of parting with money that' executors become entitled to commissions, or they would be allowed upon re-investments. In this case they only hold what belonged to a co-executor, who was prevented by death from receiving it in person without the intervention of the present executors, had she so chosen. I cannot allow •this claim.

A question is raised as to what in this estate should be regarded as permanent improvements, and it is discussed upon the cases and principles applicable to the estates of life tenants and remainder-men. The executors in this case were seized of the property left in trust, and Mrs. Holbrook was simply a beneficiary entitled to the income. The duty of preserving the estate in reasonable order, was a plain incident of the trust, and devolved upon the trustees, not upon Mrs. Holbrook. The investments of personal property and the care of the realty equally demanded prudence. Mrs. Holbrook occupied the house on Fourth avenue and Eighteenth street as her residence, and a furnace having been placed in this house during her life, at a cost of $327.03, it is urged that this sum should be apportioned —rthe premises being and having been in her exclusive possession. I cannot regard this improvement otherwise than one for her personal comfort, and at her request and direction, and I think its cost should be charged to her.

The repairs on the Fulton street stores differ in character from the one above. They were calculated both to permanently benefit the property and enhance its rental; thus the general estate was bettered, and the income of the beneficiary increased, and some apportionment should here be made, and I understand counsel assent to this.

The executors charge the estate with the sum of $475 paid to their agent, shortly after the accounting of 1868. The facts were, that the agent returned to them in his general account, a sum as collected from a tenant that had not been collected, and thus their account of 1868 was in fact erroneous to the extent of this sum. Later, the agent drew attention to the mistake, failed to collect the amount from the tenant, and claimed it from the executors, who paid it. All this was in good faith on both sides. The loss of the rent seems due to no fault of the agent, and certainly without fault on his part, he would be entitled to recover money thus advanced. The executors are entitled to hold this charge.

The executors present a bill of Betts, Atterbury & Betts, for legal services rendered them from December, 1874, to and including this hearing, and the final settlement of the estate. This bill has been rigorously contested, and considerable testimony introduced in in its support and against it. The bill presents many items of services, but none of values, simply aggregating the charge for the services in one sum at the foot of the items. The high character and intelligence of the witnesses, as well as the peculiar nature of the labors of the attorneys presenting the bill, have commanded my careful attention to, and close scrutiny of all its features. Various documentary evidences have also been produced, and several volumes of printed matter, embracing pleadings, proofs, motion papers, briefs, findings, and all the numerous parts of a closely litigated case, where many parties with conflicting interests are concerned, and are separately represented by lawyers of known skill and eminence, have been presented. With the oral testimony of counsel, long and widely known at the bar, and the mass of records -—silent but impressive witnesses—before me, I am led, in passing upon the charges made against the executors, to consider what standard can be found for any professional services outside those of a merely mechanical or routine character, and I find none of such accuracy as to relieve me from the exercise of a discretion leading me to a' conclusion, from which others reflecting upon the same subjects might widely differ.

The common elements in value in professional matters are scope and thoroughness of learning, tact, and judiciousness in movements and arrangements, unyielding assiduity and perfect integrity, and these are abundantly found all along the course of proceedings in this case. I have been deeply impressed in my examination of these proceedings, and of the briefs prepared in them, with the fact that the skill and devotion of the executors’ attorneys in the prosecution of their duties, are most honorable examples of the high reach our profession has attained. While these considerations should not alone determine the propriety of the charges, they nevertheless characterize them, and have weight in reaching the conclusion to be formed. One of the attorneys, acting as counsel as well, testifies to the difficulty to be encountered in dividing a charge for such labor as this litigation demanded into items, either of time or performance, and such a subdivision is no.where attempted by any of the witnesses. Some approach to it is found in the adoption of periods, but, after all, it comes to an aggregate sum for an aggregate work. Thus presented, I cannot hesitate in adopting the proposition that those who labored side by side and in common with the gentlemen presenting this bill, are superior judges of its correctness. They, better than all others, knew the intense thought, the earnest fidelity and continuous application brought into operation and maintained throughout the existence of the suit, and thoroughly competent to criticise the abilities of their co-laborers, can best inform, us of the value of services, many of which, rendered in the seclusion of the chamber consultation or the quiet of the library, make no display upon the bill, but have produced their effect upon the case. The opposing evidence is intelligent, and" has received very careful thought, but I cannot refrain from the conclusion that it is overborne by the direct and clear familiarity with the subject matter on the part of the witnesses sustaining the will. I am not disposed, therefore, to reduce the bill, so far as the services in the general litigation and suits are concerned, but there are two classes of charges that I cannot allow as against the estate. These are the trips to New Haven, and charges for delivering deeds on sale of property. These seems to me, after all the explanations, as unnecessary, when an executor was present and perfectly competent to act in the special character of lawyer, rendering the journey to New Haven needless, and certainly he could deliver the deeds. These charges, therefore, must be deducted from the bill, and the bill so corrected allowed.

Special Term, July, 1878.

The cause came before the court on the referee’s report in accordance with these views.

C. Wyllys Betts, for plaintiffs.

Anson Maltby, for defendants.

Van Vorst, J.

Upon careful consideration I have come to the conclusion that the learned referee, Mr. Scudder, is correct in his construction of the statute relating to the commissions of executors. Although much has been well urged by the plaintiffs’ counsel the other way, still, I am persuaded that the commissions are to be computed upon the principle of aggregating the sums until they reach the amount fixed by the statute regulating the commissions.

Such seems to have been the construction in effect given by the courts, and is, I am persuaded, agreeable to usage on this subject. This rate of compensation, fixed by Chancellor Kent, by a rule of the court of chancery, October 18, 1817 (Matter of Roberts, 3 Johns. Ch. 43), was afterwards substantially adopted by the legislature (2 R. S. 93, section 58).

I agree with the learned referee in the construction given by him to the amendment of 1849, chap. 160, and do not think the insertion of the word “of” in subdivision 3 of section 58 was intended to change the method of computation, or that it has that effect. This word is not found in the preceding subdivision of the section.

The following cases show that the executors’ commissions are to be adjusted upon the aggregate sum received and paid out (Hedges v. Ricker, mentioned in Hoffman’s Masters of Chancery; Matter of Kellog, 7 Paige, 265; Howes v. Davis, 4 Abb. Pr. 71; Matter of Bank of Niagara, 6 Paige, 216; Valentine v. Valentine, 2 Barb. Ch. 430; Drake yv. Price, 7 Barb. 388 ; S. C., 1 Seld. 430.)

It is suggested that these cases are all before the amendment of 1849. But it having been above held that the amendment did not change the substance of the rule theretofore existing, the cases are applicable.

Under the referee’s findings, I do not see how there can be an allowance for extra compensation to the acting executor, other than the allowance for preparing the account. The commissions were intended to cover all services rendered by the executor.

The principle of compensation may afford inadequate amends to the executor, who has with great fidelity, and intelligently and prudently managed the interests intrusted to him. But the law adjusts the compensation, and it is not for the courts to decree in opposition to the statute when it speaks plainly. This conclusion sustains the referee in disposing of the subject of commissions erroneously retained by the executor.

But, under the circumstances, I think they should be paid over without interest.

The good faith of the executors cannot be questioned. And while the dealings with Mrs. Holbrook do not show that she had such accurate knowledge of the system of charges adopted as to amount to a ratification of or acquiescence in them, still, the absence of any question on her part or that of Mr. Hurry, in the face of some of the receipts, doubtless led the executor to believe that the rate of charges adopted' by him was satisfactory.

The executor retained what he believed was legal and proper, and in the absence of inquiry and dissent, I conclude that justice and equity are satisfied with the payment of the principal sum of the commissions retained.

The executor could, without doubt, have with propriety made frequent rests and accountings. Although it would have given some trouble to have done so, yet the effect of such course would have been to increase his compensation in the aggregate.

The evidence, however, does not show any actual rest or accounting between the year 1868 and the death of Mrs. Holbrook, and I understand that the error in retaining commissions occurred during that period.

I have examined each of the plaintiffs’ exceptions to the referee’s report, and reach the conclusion that the referee should be sustained and the exceptions overruled.

The defendants object to the allowance made by the referee to the attorneys for the plaintiff for legal services rendered by them. Considering the importance and value of their services, the amount charged is in no regard unreasonable.

The litigation in this court growing out of the will of Mr. Holbrook involved weighty questions, and imposed upon the plaintiffs’ attorney and counsel great responsibility, and demanded learning, diligence and ability.

The learned counsel for the defendants, principally interested in the litigation, and who so well guarded his clients’ cause, will surely admit the plaintiffs’ case in its presentment, trial, and final argument was conspicuous with the presence of all three elements.

I consider that the amount allowed by the referee is not larger than the character and value of these professional services demanded.

The defendants’ exceptions are in no instance sustained, and they are severally overruled.

Ho further direction is required to be made with respect to the fees of the referee, which were heretofore ordered to be paid out of the general residuary fund, and the terms of the judgment are satisfied by the payment of the amount of the legacies adjudged to be invalid, in all §10,000, to those held to be entitled thereunto, without interest.

The result reached is that the report of the referee is confirmed.

Ho costs are allowed on this motion. 
      
       An appeal was taken to test this question, but was superseded by a compromise.
     
      
       See also People ex rel. Willson v. Lathrop, 19 How. Pr. 358.
     
      
      
        Granville P. Hawes argued the following points in behalf of the trustees of ward schools in the twelfth and twenty-second wards (brief not received in time to be inserted in its proper place):—I. The defendants have power to take the bequests under the fifteenth clause of the will by their common law powers as corporations, and these powers are not restricted by virtue of L. 1851, c. 386, § 10 (Angell & Ames on Corp. 148, § 177; Downing v. Mitchell, 23 N. Y. 293; Everitt v. Everitt, 29 Id. 39; McCarter v. Orphan Asylum, 9 Conn. 437). The defendants are expressly created a corporation to hold all personal property vested in, or transferred to them for school purposes in their respective wards (L. 1851, supra). The power to hold necessarily involves the power to receive. The policy of the law is to favor the common school system, and to extend rather than to restrict the power to acquire property. II. The express power to take by bequest was conferred by L. 1840, c. 318; L. 1841, c. 261; L. 1842, c. 150; and this power was not abrogated by L. 1851, supra. The court is bound to adopt such a construction of these various acts as will give them all effect (People v. McKenney, 52 N. Y. 374; Roosevelt v. Godard, 52 Barb. 533; People v. Supervisors of Orange, 17 N. Y. 241; Clark v. 
        Rochester, 24 Barb. 471). HI. If the boards, of trustees of common schools cannot take as corporations, the trustees composing such boards will take as individuals for the purposes named. IV. The power of alienation is not suspended by the twelfth paragraph of the will. The right to these bequests vested absolutely upon the death of the testator (Manice v. Manice, 43 N. Y. 303; McCarter v. Orphan Asylum, 9 Cow. 441; McKinstry v. Sanders, 2 Supm. Ct. [T. & C.] 200). V. By the word “ school,” the testator undoubtedly intended a school embracing in its organization a principal, a vice-principal, teachers and scholars, and not a school building. VI. There were ten grammar schools in the twelfth ward, and six in the twenty-second at the time of the death of Mrs. Holbrook; the trustees of the twelfth ward are, therefore, entitled to $2,500, and the trustees of the twenty-second to $,1500.
     
      
       The following attorneys and counsel appeared for various parties named below, but no briefs were received from them.
      
        Daniel Lord, Jr., for Half Orphan Asylum.
      
        G. R. Schieffelin, for N. Y. Prot. Epis. City Mission Soc.
      
        John W. Mitchell, for Gen. Prot. Epis. S. S. Union, &c.
      
        Taylor & Lynch, for Sabbath Tract Soc.
      
        Edward Heaton, for Prot. Epis. Soc. for Promoting Beligion, &c., Am. Tract Soc., and others.
      
        W. D. Craft, for Trustees of Schools of Second Ward.
      
        B. W. Townsend and A. J. Dyett, for Trustees of Schools of Seventh, Eleventh, Thirteenth, Fourteenth, and Twenty-First Wards.
      
        Thomas C. Ennever, for Demilt Dispensary.
      
        Lake A. Lockwood, for George S. Lee and others.
      
        L. A. Baker, for J. Harvey Valentine, et al.
      
      
        Scoville & De Witt, for John Edwin Cox, et al.
      
      
        Scott D. M. Goodwin, for John J. Haunstein, et al.
      
      
        Hamilton dole, for the Board of Education, and for Boards of Trustees of Schools of various wards.
     
      
       See also Straw v. Conference of M. E. Church, 67 Me. 2
     
      
       See also on this point, Noyes v. Children’s Aid Society, 3 Abb. New Cas. 36, and note.
     