
    The People, App’lts, v. Alfred L. Simonson and Edward T. Schenk, Ex’rs, et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    
      1. Wills—Trusts.
    Testator by his will gave a large sum to a hospital to be called by his name, and directed his executors to apply for a charter therefor, and in case of the death of the longest liver of them before it was granted, gave the fund to the city of New York for such purpose. Four executors were named, of whom three qualified. By a codicil he revoked the bequest and applied it to founding a musical college, and directed that appropriate legislation be adopted to perfect its incorporation as near the plan with regard to the hospital as possible. Held, that the trust was void, as it tied up the estate for more than two lives and for indefiniteness.
    2. Same—Action to enforce.
    The attorney general has no standing to enforce a trust void in law.
    Appeal from judgment dismissing the complaint. Action to reach the residuary estate of Samuel Wood, deceased. The property had been devised for charitable purposes as set forth in the opinion. The complaint, in substance, alleged that the executors, relying on the fact that the charity was a public one, with no specified beneficiaries to enforce the performance of their duty, received this estate, converted it into money, and after wasting, squandering and appropriating to their own uses the greater }iart thereof, had undertaken by a collusive litigation with the sole heir and next of kin to defeat the charitable provisions of testator and had divided the residuary estate among themselves as individuals.
    
      B. E. Valentine, for app’lts ; Josiah T. Marean, for resp’ts.
   Barnard, P. J.

The testator, Samuel Wood, devoted a large part of his estate to the creation and maintenance of a hospital to be called “ The Samuel Wood Benevolent Institute.”

The will directed the executor to apply to the legislature for a charter and to prosecute the application until it was granted, and in case of the death of the longest liver of them before the same was obtained, then the testator gave the fund devoted to the hospital to the city of New York, to be strictly devoted by the city to the hospital charity “ until such charter shall be obtained.”

By the codicil the testator revoked the bequest for the hospital and applied it “ to the founding of a musical institution to be known and called the Samuel Wood Musical College.”

“ And that appropriate legislation and means be adopted to perfect the incorporation and general plan of the institution as near or similar to the plan or method given in my said will with regard to the formation and endowment of the Samuel Wood Benevolent Institute and Hospital.”

No charter has been applied for by the executor and none has been passed by the legislature.

The codicil named four executors, three of whom qualified. As this appeal is based upon a decision dismissing the complaint because the people had no cause of action, it must he assumed that the executors are irresponsible; that they have squandered the estate; have collusively suppressed the codicil, and procured or invited a judgment based on ignorance of the facts by the court which granted it; that the codicil was void for want of capacity in the testator, and then had the surrogate read the will without the codicil, and grant new letters testamentary to one of the executors who was superseded by the codicil. That the probate of the codicil had been litigated and approved by the court of appeals before this collusive judgment was obtained, and that this fact was suppressed before the surrogate who succeeded the surrogate who tried the case.

This is a damaging statement, but the present case rests entirely upon the validity of the hospital trust in the will and the musical college trust in the codicil. The will expressly ties up the estate for their lives. The executors are to keep it, or may do so, until the longest lives of three designated persons are deceased.

The codicil merely changes the name of the beneficiary but leaves the will in other respects still standing. It is, therefore, liable to the same objection as to illegal suspension. It is impossible to found a beneficiary under the codicil with such definiteness as would enable a court of equity to enforce the trust. The hospital scheme is definite, but it is entirely incongruous when applied to a musical college. The trust is also void for indefiniteness as to the beneficiary. The legislature must provide a working plan for the college if it grants a charter, and must of necessity construct it, in the absence of the testator’s directions or even wishes, for he has given neither. It is void therefore for indefiniteness of the trust. Holland v. Alcock, 108 N. Y., 312; 14 N. Y. State Rep., 761; Cruikshank v. Home of the Friendless, 113 N. Y., 337; 22 N. Y. State Rep., 738.

The attorney general has no standing to enforce a trust void by our law, and the judgment should therefore be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.  