
    Warburton Avenue Baptist Church, Appellant, v. George Clark, as Administrator, etc., of Almira Clark, Deceased, and the Yonkers Savings Bank, Respondents.
    Second Department,
    July 25, 1913.
    Trust—deposit in savings Bank for church — gift—use of words “ Benevolent object.”
    A deposit in a savings Bank in the following form, “ Almira Clark, in trust for 'Benevolent Object ’ Warburton Avenue Baptist Church of Yonkers, ” made prior to the death of the depositor, constitutes a gift to the church. Although the term “Benevolent Object” may mean a wish or direction that the money shall be used in some benevolence of the church, it did not create a trust or prevent the gift from immediately vesting.
    Appeal by the plaintiff, Warburton Avenue Baptist Church, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 15th day of May, 1913, dismissing the complaint upon the decision of the court after a trial at the Westchester Special Term.
    
      The judgment granted the administrator judgment for $1,270.43 against the Yonkers Savings Bank.
    
      George W. Elkins [James M. Hunt with him on the brief], for the appellant.
    
      Charles De Hart Brower, for the respondent George Clark, as administrator, etc.
   Putnam, J.:

Plaintiff, a religious corporation, sought to recover a deposit in the Yonkers Savings Bank made by Almira Clark prior to her death. This account had been entered in the following form:

“Almira Clark, in trust for ‘Benevolent Object’ Warburton Avenue Baptist Church of Yonkers.”

The controversy arises over the words “ Benevolent Object.” Had that expression been omitted, it is not questioned that the plaintiff would have been entitled to this deposit as a trust— tentative while the depositor lived, but becoming absolute on her death. (Matter of Totten, 179 N. Y. 112.)

Here the term *‘ Benevolent Object ” may mean a wish or direction that the money shall be used in some benevolence of the church. This, however, did not prevent the gift from immediately vesting. If the added words be regarded as directing the manner that plaintiff is to use the money, nevertheless the language did not create a trust in the legal sense, as the church takes as an absolute donee. Its right and ownership are absolute save as, in incidents and scope, they necessarily are adapted to the nature of a religious corporation. (Wetmore v. Parker, 52 N. Y. 450; Bird v. Merklee, 144 id. 544.) The latter case furnished stronger ground to assert a trust than does the case at bar. It was a bequest “to the Methodist Episcopal Churches of the Ninth ward of the city of New York, according to the number of members, to buy coal for the poor of said churches,” yet the court said: “We have here a direct and simple gift, made in terms that exclude any idea of trust.” (P. 549.)

Such dispositions made to charitable or religious corporations raise the initial question merely of the corporate power to take, and if that power exists, our theory of the law, in order to save the gift, is that no trust at all results from, such expressions by the testator or donor. (Chaplin Exp. T. & P. § 506.) The suggestion as to the manner of enjoying the benefit creates a moral but not a legal obligation. (Matter of Isbell, 1 App. Div. 158.) It is a benefaction given in confidence that the beneficiary will observe the benefactor’s expressed wishes respecting it. It is not, in a strict sense, a trust; inasmuch as the corporation, in effect, takes it absolutely. ” (Per Gray, J., Matter of Griffin, 167 N. Y. 71, 78.)

Hence it is unnecessary to resort to the amending act of 1893 (Laws of 1893, chap. 701), which, reversing the previous policy of this State, declares that religious, educational, charitable or benevolent gifts are not void or invalid for uncertainty or indefiniteness of the beneficiaries. (See, also, Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 12, subd. 1.)

In furtherance of the presumed intent of Miss Clark as a member of the plaintiff church, her gift of this bank deposit must be held effectual, and hence that appellant is entitled to judgment therefor. I so advise.

The judgment should be reversed, with costs, and entry of judgment directed for the plaintiff, with costs.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgment reversed, with costs, and judgment directed for plaintiff, with costs.  