
    In the Matter of the Construction of the Will of Clifford W. Morgan, Deceased.
    Surrogate’s Court, Monroe County,
    September 24, 1951.
    
      William L. Clay and Kermit E. Rice for Helen I. Palmer, petitioner.
    
      Nathan Relin for Willis E. Whitcomb and another, executors and trustees under the will of Clifford W. Morgan, deceased, respondents.
   Witmer, S.

Construction is sought herein of paragraph “ Fifth ” of testator’s will in which he provided that the remainder of his estate be used in the creation of a charitable trust for educational purposes. Petitioner, as distributee, contends that no valid trust is created by said paragraph and that the residue of the estate passes as intestate property. The testamentary provision in question is as follows: “ Fifth. All the rest, residue and remainder of my estate, both real and personal, I give and bequeath to Willis E. Whitcomb of 96 Oakdale Drive and Jonas P. Belin of 107 Oakdale Drive, Rochester 7, New York, in trust, however, for the following purposes: My trustees are to convert my estate into cash and may invest and re-invest the same in such securities or deposits as they deem best. They are to establish with this my trust fund which, at their discretion, is to be loaned to such person or persons as they deem worthy for the purpose of using the money for tuition or school expense of persons residing in the County of Monroe in connection with education beyond high school. These loans are to be repaid to the trust at such rate of interest and at such rate of payment as the trustees may see fit in each individual case.”

The Restatement of the Law of Trusts (§ 348) defines a charitable trust as follows: “ A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose. ’ ’

In sections 368 and 370, said Restatement defines “ charitable purpose ” as including education. The State of New York is in accord with these provisions of the Restatement of the Law of Trusts, and has long declared the validity of gifts in trust for educational purposes. (Personal Property Law, §§ 12, 13; Real Property Law, § 113; Matter of Everson, 268 App. Div. 425, affd. 295 N. Y. 622; Matter of Davidge, 200 App. Div. 437; Matter of Lewis, 199 Misc. 463; 3 Scott on Trusts, §§ 348, 370, 370.1; and see Scott on the History of Charitable Trusts in New York, Report of New York State Bar Assn., 1951, pp. 100-116.)

The purpose of the trust in question is the loaning of funds to such persons residing in Monroe County as the trustees deem worthy for tuition or school expenses in connection with advanced education. A limitation of the class of beneficiaries to persons within the county of Monroe does not affect the validity of the trust. (Matter of Antoni, 186 Misc. 988; 3 Scott on Trusts, § 370.6.) Nor does the fact that the persons receiving the benefits must repay the same with interest affect the validity of the trust. (Matter of Davidge, supra; Restatement, Trusts, § 370, comment d; 3 Scott on Trusts, § 370.5.)

It is held, therefore, that paragraph 11 Fifth ” of the will herein creates a valid charitable trust for the persons specified therein.

Submit decree accordingly.  