
    Oliver A. Kingsbury and John E. Brandegee, as Executors, etc., of Amy J. Perkins, Deceased, Respondents, v. John E. Brandegee, as Executor, etc., of Henry S. Miller, Deceased, and Others, Respondents, Impleaded with Julius M. Mayer, as Attorney-General of the State of New York, and Others, Appellants.
    Fourth Department,
    May 9, 1906.
    Will — gift to religious corporation construed — when beneficiary ' sufficiently certain.
    A will which gives certain property, real and. personal, “to the corporation of ■ the ' Diocese of Central New York,’ to be used as the Bishop’s residence-of is^id ■ -diocese,” is not void .for .uncertainty -when it appears that there is a coi'.pora- - tion known as “ the trustees for. che management and care of the fund for the support of the Episcopate of the dio.cese of Western New York,” etc., which was incorporated under chapter 184 of the Laws of 1841, and chapter 439 of the Laws of 1868, on the division of the'diocese of Western New York.
    Moreover; the -gift does not fail, hut can he supported as" a trust for. charitable purposes under the provisions of chapter 701 of the Laws of 1898,. as amended s by chapter 391 of the Laws of 1901, providing that gifts for religious and • . bénevolent uses shall hot fail by reason, of the indefiniteness of the .persons ■ designated. .. ' ■ - .
    When the devisee is indefinite the court can name-a trustee to administer the" gift as a trust. '
    Kruse, ¿1., dissented. " ' ■-
    AppEAL'by the defendants, Julius M. Mayer,.as Attorney-General of the State of .HéW York, and others, from- a- judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Oneida on the 3d-day of October, 1904, upon- the decision of the court rendered after a trial at the Oneida Special Term. . - - ■ ■
    
      Julius M. Mayer, Attorney-General, Horace McGuire, Deputy Attorney-General, and Matteson & De Angelis, for the appellants.
    
      Charles A. Miller, George M. Weaver, J. T. A. Doolittle, A. M. Mills, W. J. Welsh & F. W. Welsh, Sholes, Ferris & Foley, Charles D. Thomas, Frank T. Warburton and Holmes & Waterman, for the respondents.
   Williams, J.:

The judgment should be reversed and a new' trial granted, with costs to the appellants to abide event.

The action is for a construction of the provisions of the will of Amy J. Perkins. She died leaving no husband and no lineal descendants. Her only heir and next of kin was Mary A. Petrie, who died after the deceased. The deceased left a will and three codicils. She' left personal property, exclusive of specific legacies, valued at $26,531.46, and real estate valued at $32,310. Two parcels of this real estate, valued at $15,000 and $6,000 respectively, and some specific articles of personal property are involved in this controversy. The will contains the following provisions, which are sought to be construed : • “ My estate shall pass as follows: Block III, on which my stone house (my present residénce) is situated, and a portion has been distinguished as Aniy Place ’ on a map of property in the town of Hew Hartford, belonging to the late George B. Perkins (1870), and which map was filed in the office of the Clerk of Oneida County, May 80, 1871, together with such ‘kirn i ture, pictures and books, contained in the house at the time of my death as are not hereinafter otherwise disposed of, I give, devise ■ and bequeath to the corporation of the Diocese of Central Hew . York,’ to be used as the Bishop’s residence of said diocese. All the personal effects which may be in my said stone house, and whose removal shall not hereinafter be designated, shall pass to said diocese, on condition that the same remain in said house, undisturbed and be kept in good preservation as possible. But I do not prohibit' the ordinary use and occupation of said house and furniture. Should this diocese ever be divided, this property shall not be subject to such division, but shall ever remain in the name of the ‘diocese in which it is embraced, whatever the name of such diocese may be. Such land as I may leave unsold, bounded Easterly by Perkins Avenue, Horth-westerly by the West Shore B. B., and Southerly by Seward Avenue, I devise and bequeath to said diocese of Central Hew York, to be held as an investment.”

Hone of these provisions were revoked or changed by the codicils. The will was executed January 22, 1895; first codicil, July 30, 1897; second codicil, May 25, 1899, and third codicil ¡September 12, 1901. The death of deceased occurred June 4,1902.

, There '.never was any corporation known or designated as “ The-Diocese of Central Hew York.” Tlie term is used to designate a 'subdivision of territory in whieh^the Protestant Episcopal church • operates in the State of Hew York. This diocese embraces the counties óf Broome, Cayuga, Chemung, Chenango, Cortland, Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, Seneca, Tioga and Tompkins. ' Of late years there have been in. this -diocese a t bishop and a bishop coadjutor, the' former residing in Syracuse,. Onondaga county, and the latter in Utica, Oneida county.' The bishop has recently died and the bishop coadjutor has succeeded him as bishop. These'persons are required to reside in the diocese and are. supported by a voluntary religious association known as “The Protestant Episcopal Church of the Diocese of Central Hew York.” - ~ , - \ ■■■",'■

By-chapter 134 of the Laws of 1841 a corporation -was created, known as “ The trustees for the management and care of the fund for the support of the-Episcopate of the diocese of Western Hew York,” and was given power to take and hold, by gift, grant or devisej and to purchase, hold and convey, real and personal property necessary for .its purposes, the yearly value or income not, however, to exceed $5,000. The object of the corporation was the. management and ' caré of the fund for the support of the bishop, under the directions ■ of the convention of the church for the diocese.

I By chapter 59 of the .Laws of 1863 another corporation ivas created known as Trustees of the Parochial Eund of the Pfotestant Episcopal Church in the Diocese of Western Hew York,” and was given power to receive and hold, by deed, conveyance, or last will' and testament, for . the creation "and accumulation of a fund,' real 'and personal estate, the. annual income. from which should not exceed $30,000, to be devoted to the assistance and support of: ministers, the purchase of. glebes and the erection of parsonages. The said trustees were also authorized to .receive by donations or devise; moneys and land, devoted by the giver to the purposes -of parochial and theological schools and missions within the diocese. Tlie latter powers were extended by chapter -845 of the Laws of > 1871, chapter 500 of the Laws of 1875 and chapter 144 of the Laws of 1885, '.

By chapter 429 of the Laws of 1868-provision was made, in view of the division of the diocese of Western Hew York, for the. creation of a new corporation in the new diocese subsequently called the diocese of Central Hew York, the powers and object of such new corporation to be substantially the same as those specified in the act of- 1841, and also for the creation of a new corporation in the new diocese, the powers and object to be the same as those specified in the act of 1863. ■ •

By chapter 106 of the Laws of 1887 the powers and objects of the corporation created under, the act of 1868, in the new diocese, in place xof the corporation of 1863, were extended, and by. chapter 308 of-the Laws of 1888 the latter act was amended.

This latter corporation was and. is entirely separate and distinct from the corporation created in tire new diocese by the act of 1868, in place of the corporation of 1841, now known as “ The Trustees for the management and care of the fund for the support of the Episcopate of the diocese of Central Hew York,” and its object being the management arid care of the fund for the support of the bishop, under the directions of the convention of the church for the diocese. This is the corporation with which we have to. do in this controversy.

There can be no doubt that the testatrix intended by the provisions in her will above quoted to give the real estate and personal property therein described to the legal entity in the diocese, having power to take and hold the same, for a residence for the bishop and the support thereof. This entity is clearly the 1841, 1868 corporation and not the 1863, 1868 one. While the latter clause gives the real estate therein described generally to the diocese, “ to be held as an investment,” yet the clauses are all together, and the testatrix’.s intention evidently was to provide for the bishop and not for the purposes of the 1863, 1868 corporation. This.is: the more reasonable construction and should be adopted as the correct one. The intention of the testatrix, as herein stated, sufficiently appears from the language of the will itself, and needs no extraneous .evidence to support- it - aside from proof of the conditions in the church organization and diocese.

The trial court held these provisions were ineffectual and void, and that "this property was a part of the residuary estate, and passed under the provisions of the will relating thereto. In this we think the court was in error. So far as the law is concerned we ■need only to refer to the case of Bowman v. Domestic & Foreign M. Society (100 App. Div. 29 ; mod., 182 N.Y. 494) and the cases ■therein referred to.

In the Appellate Division the prevailing opinion in that case cited and considered all the cases deemed applicable to the question. The dissent of one member of the court was put upon the grounds stated by the trial court (42 Misc. Rep. .574). The clause in the will there involved was: “I give, devise and bequeath the sum of two thousand dollars, to be~equally divided between the Indian Mis- . sions and Domestic Missions of the United States, in memoriam tq •the late Mary A- Archer.” There was no doubt -that the testatrix intended to have the fund devoted to the purposes of those missions in the Protestant Episcopal church, and the Appellate Division held that the property vested in the corporation defendant which had charge- of funds .devoted to' those missions known as. “ The Domestic and Foreign Missionary Society .of the Protestant Episcopal Church in the United States of America,” and was the only legal entity that could take and administer funds for those purposes. There was no reference in the prevailing' opinion to the provisions of chapter 701 of the Laws of 1893, as amended by chapter 291 of the . Laws of 1901. In the opinion by the trial court, adopted as a dissenting opinion in the Appellate Division, it was said that there was no attempt to name any corporation as the beneficiary to take, and administer the trust fund, but the purposes to which the fund Was to be applied,, merely, were stated, and, therefore, it held the gift was void. * This was the point decided, and no_ mention was made in this opinion of the statute of 1893,1901, above referred to. Tlie Court of Appeals, without , any discussion of the cases, held that the trial court was correct, that the will was too indefinite to be construed as a direct bequest either to the corporation named or to any other beneficiary, and then held that the bequest did not fail but could be-supported as a trust for charitable purposes under the provisions of the acts, of 1893, 1901. Section 1 of the act of 1893 provides as follows:. “3STo gift, grant, bequest or devise to religious, educational,' charitable, or benevolent uses, which shall in other respects be valid under the laws of this State, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift; grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee, then the title to such lands or property shall vest in the Supreme Court.” The court further held that the effect of this statute was to restore the ancient doctrine of- charitable uses and trusts as a part of the law of this State (Allen v. Stevens, 161 N. Y. 122) and was designed to cover just such a.case as the one at bar; that the obvious purpose of the testatrix was. to have this fund distributed for the benefit of domestic and Indian missions; that the corporation defendant was the organized medium through which the church carried on its missionary operations; that the Supreme Court had power under this statute to administer this trust as one in which the beneficiary or trustee was not naméd or designated with absolute certainty or correctness, and this it could do through the instrumentality of a trustee appointed by it; that it would doubtless be influenced in the choice of a trustee by the nature of the charity to be. administered, and might appoint-the corporation defendant as the medium best adapted to accomplish the end sought.

Under this decision it is-quite apparent that the provisions of the will here in question are not, as held by the trial court, ineffectual and .void. They should be upheld, either under the cases referred to by the Appellate Division or under the statute of 1893, .1901. We see no reason why they should not be construed as vesting absolute title in this corporation of 1841, 1868. There is here a devise directly tó a corporation, and we may hold this corporation was intended, though incorrectly named. In the Bowman case there was no attempt to make a devise to any corporation at all; only the purposes for which the devise was made were stated. In this respect the two cases are distinguishable, and this case is clearly within many of the cases referred -to by the Appellate Division in that case. But if it is said that the beneficiary or trustee is not indicated with sufficient certainty or correctness, then it is covered by the statute of 1893, 1901, as interpreted and applied by .the Court of Appeals in the jBowman case, arid the Supreme Court should administer the trust and appoint the corporation of 1841,1868 as trustee as the “ medium best adapted to accomplish the end sought.” '

We-are of the opinion, in view of the Bowman ¿ase, the latter course had better be adopted. • Although many of the provisions of the judgment are not in .controversy, yet iinder the ¿i'rcumstances, and the changes rendered necessary by this decision, we think a new trial had better be had, rather than aii attempt to modify ..the judgment. It will be a merely formal trial in view of the decision here made. ‘

.All concurred, except Kruse, J., who dissented on the ground that the testamentary disposition nominally to the diocese of Central New York is void.

•Judgment reversed and new trial ordered, with costs to the appellants to abide event  