
    In the Matter of Proving the Last Will and Testament of Elbert H. Bogart, Deceased. W. Wallace Kirby and Ralph Kirby, as Two of the Executors, etc., of Elbert H. Bogart, Deceased, Appellants and Respondents. The Trustees of the Jones Fund, Appellants. School District No. 4, Town of North Hempstead, Appellant. Daniel S. Woolley and Others, Heirs at Law and Next of Kin, Appellants and Respondents. The Reformed Dutch Church of North Hempstead, Appellant. Joseph H. Bogart, One of the Executors of Elbert H. Bogart, Deceased, Respondent.
    
      Will — bequests of which the income was tobe applied to the use of a school district by trustees, to a church and to the trustees of the Jones Fund for the poor, all held to be valid — statute of perpetuities inapplicable — a surrogate may construe a will on an application for its probate.
    
    A testator devised his residuary estate to his executors, in trust, to apply the 'rents, issues and income thereof to the use of his sister during her life, and, upon her death (which :occurred prior to that of the testator), directed . that it be converted into money, and gave the proceeds as follows: “To School District No. 4 (four) of the said town of North Hempstead one equal third part thereof, to be invested in safe and productive "securities, and the income to be used and applied for the benefit of the school of said district and the promotion of the cause of public education therein; to the Reformed Dutch Church of North Hempstead, located at Manhasset, of which the Rev. A. J. Martine is now the pastor, one other equal third part thereof, to he invested in safe and productive securities under the direction of the consistory of said church, and the income thereof to he applied, first, in the payment of the salary of the pastor of said church for the time being, and if such income should prove more than sufficient for that purpose the remainder of such income, if any, shall be applied to the general uses and purposes of said church; and to the trustees of the Jones Fund for the ‘support of the poor’ in Queens county, founded by the late Samuel Jones, and to their successors in office, the remaining equal third part thereof for the support of the poor of the town of North Hempstead as a permanent fund, to be invested either in real estate, * * * in stocks or bonds and mortgages, and the accruing interest or dividends, if so invested, wholly or in part, to be applied annually forever to the relief of the poor of the said town of North Hempstead upon the plan sanctioned by the Legislature of the State of New York in relation to the fund known as the ‘ Jones Fund ’ given by the said Samuel Jones.”
    The will further provided that the care and management of the fund bequeathed to the school district should devolve upon three trustees whom the inhabitants of said school district should either under existing laws or under special enactment by the Legislature resolve to have and should elect, and that such trustees and their successors should “take, hold and manage said fund for the purposes ” for which it was given; and that if this requirement was not complied with, the bequest should pass to the Reformed Dutch Church of North Hemp-stead and the trustees of the Jones Fund in equal-shares for the same uses and purposes as those expressed in the former bequests to said legatees.
    
      Held, that the legacy to the church was valid, the directions concerning its management and the purposes to which it should be applied not operating to create a trust or to limit the absolute character of the gift which vested at once;
    That the bequest to the school district was made to the school district itself and not to the trustees to be elected as the custodians of the fund, and was, therefore, authorized by section 19 of title 3 of the Consolidated School Law (Laws of 1894, chap. 556) which provides that real and personal estate may be bequeathed in trust and in perpetuity or otherwise “ to any school district or its trustee or trustees for the support and benefit of common schools within such * * * district * * * or for the support and benefit of any particular common school or schools therein; ”
    That the provision that the legacy be managed by three trustees did not prevent the gift from taking effect immediately, it appearing that there were three trustees in the school district at the time of the testator’s death and that the precise condition contemplated by the testator had, therefore, arisen;
    That as the trustees of the Jones Fund, appointed by chapter 313 of the Laws of 1838, to take and manage a fund devised to the towns of Oyster Bay and North Hempstead, for the support of the poor of those towns, had been invested by the Legislature with corporate capacity, they might, under section 11 of the General Corporation Law (Laws of 1893, chap. 687, as amd. by Laws of 1895, chap. 672), providing that every corporation as such has power, although not specified in the law under which it is incorporated, to “acquire by grant, gift, purchase, devise or bequest, to 'hold and to dispose of such property- as the purposes of the corporation shall require,” lawfully take the present gift, although its use was limited to the support of the poor in the town of North. Hempstead;
    That the statute against perpetuities did rot apply to the bequest.
    A surrogate has jurisdiction to construe a will upon an application for its admission to probate.
    Appeals by W. Wallace Kirby and another, as two of the executors, etc., of Elbert H. Bbgart, deceased ; The Trustees of the Jones Fund; School District No. 4, Town of North Hempstead; Daniel S.. Woolley. and others, heirs at law and next of kin of Elbert H. Bogart, deceased, and The Reformed Dutch Church of North Hempstead, from portions of a decree of the Surrogate’s Court of Queens county, entered in said Surrogate’s Court on the 31st day of December, 1898, admitting to probate an instrument propounded as the last will and testament of Elbert H. Bogart, deceased, and construing said will, and also an appeal by The-Reformed Dutch Church of North Hempstead and others from an order entered in said Surrogate’s Court on the 3d day of March, 1899, resettling said decree.
    
      Henry A. Monfort, for Daniel S. Woolley and others, heirs at law and next of kin, appellants and respondents.
    
      Alfred A. Gardner, for the Trustees of the Jones Fund, appellants.
    
      Guy C. Frisbie, for School. District No. 4, Town of North Hempstead, appellant.
    
      John Sabine Smith, for W. W. and Ralph Kirby, executors, appellants and respondents.
    
      George M. Baker, for executor Joseph H. Bogart, respondent.
    
      Harrison S. Moore, for the Reformed Dutch Church, appellant.
   Willard Bartlett, J:

This proceeding was instituted for the probate of the' will of Elbert H. Bogart, deceased, who died, in Queens county on August 4, 1897. The instrument is dated February 11, 1884. In the 1st article the testator nominates two executors whom he requires to pay his just debts and funeral expenses out of his estate, and to each of whom he bequeaths $500 in addition to their lawful commissions. By the 2d article he devises and bequeaths to said executors all the rest, residue and remainder of his estate in' trust' to collect the rents, issues and income thereof and apply the same to the use of his sister Mary Bogart during her life. It may be noted here that the Mary Bogart thus mentioned died before the death of the testator. The 2d article of the will further provides as follows: “Upon the death of my said sister, I direct that, my said residuary estate, devised- and bequeathed to my said executors in trust for her benefit as aforesaid, shall be sold by them, either at public or private sale in their .discretion, as soon as practicable and converted into money, and I give and bequeath the whole of the proceeds thereof ás follows, viz.: To School District number 4 (four) of the said town of North Hempstead one equal third part thereof, to be invested in safe and productive securities and the income to be used and applied for the benefit of the school of said district and the promotion of the cause of public education therein ; to the Reformed Dutch Church of North Hempstead, located at Manhasset, of which the Rev. A. J. Martine is now the pastor, one other equal third part thereof, to be invested in safe and productive securities under the direction of the consistory of said church and the income thereof to be applied, first, in the payment of the salary of the pastor of said church for the time being, and if such income should prove more than sufficient for that purpose the remainder of such income, if any, shall be applied to the general uses and purposes of said church; and to- the Trustees of the Jones Fund for the ‘support of the poor’ in Queens county, founded by the late Samuel Jones and to their successors in office the remaining equal third part thereof for the support of the poor of the town of North Hemp-stead as a permanent fund to be invested either in real estate for the continued occupation of said poor to give them light, easy and healthy employment and a resting place, or that the same be invested in stocks or bonds and mortgages, and the accruing interest or dividends, if so invested, wholly or in part, to be applied annually forever to the relief of the ¡poor of the said town of Horth Hempstead upon the plan sanctioned by the Legislature of the State of Hew York in relation to the fund known as the Jones Fund’ given by the said Samuel Jones.” :

In respect to the bequiest for the benefit of school district Ho. 4 of the town of Horth’.Hempstead, the 3d article of the will declares it to be the will and the desire of the testator “ that the care and management of the fund so bequeathed shall devolve upon more than one person and that the inhabitants of said school district shall either under existing laws or under special enactment by the Legislature resolve to have and shall elect three trustees for said district, and that such three trustees, when, so elected and their successors in-office, shall take, hold apd manage said fund for the purposes for which I . have given this-same as hereinabove stated;” If this requirement has not been fully complied with by the inhabitants of the school district within two years after the testator’s residuary estate shall have been sold and converted into money, the testator, by a further provision in the 3d' article, gives the portion of. his property bequeathed to said school district to the Reformed Dutch Church of" Horth Hempstead and the trustees of the Jones fund in equal shares for the same;uses and purposes as those expressed ip the bequests to said legatees in the 2d article of the will. ' ...

The will contains other’ provisions not material to be here stated. There are two codicils whereby the testator changed his executors, but effected no alteration .in those testamentary provisions of the main instrument which we are called upon to' consider in this -litigation. .

In the preliminary proceedings before the learned surrogate some of the parties questioned his' power to construe the will, but we are clearly of the opinion that he had jurisdiction to do so. (Matter of Austin, 35 App. Div. 278.)

In the exercise of that jurisdiction he held : (1) That there was no illegality in the devise or bequest to the Reformed Dutch Church of North Hempstead ; (2) th'gt the gift to school .district Ho. 4 of the town of Horth Hempstead was void because its vesting might be delayed by a period of time not measured by lives, and (3) that the bequest to the trustees of the Jones fund was void because such trustees have no legal power to receive it.

We concur with the first of these conclusions, but find ourselves unable to agree to either of the others. In stating our own construction of the will, we will consider the three gifts in the order adopted by the surrogate in his opinion.

1. We perceive no difficulty in sustaining the legacy to the church. There is an absolute gift, and the directions attached to it as to the application of the income to. the payment of the salary of the pastor in the first place, and then to the general uses and purposes of the church, cannot fairly be regarded as conditions or qualifications limiting the legacy. The fact that the testator has designated the purpose for which this legacy must be used does not indicate a desire upon his part to create a trust. (Bird v. Merklee, 144 N. Y. 544.) The gift was not invalidated by any illegal suspension of the power of alienation, for, as was correctly held by the surrogate, there was an equitable conversion of the property of the testator immediately upon his death, and the gifts to the various legatees vested at once.

2. We think that the bequest to school district No. 4 of the town of North Hempstead is valid. Under section 19 of title II of the Consolidated School Law, real and personal estate may be devised or bequeathed in trust and in perpetuity or otherwise “to any school district or its trustee or trustees for the support and benefit of common schools within such * * * district * * * or for the support and benefit, of any particular common school or schools therein.” (Laws of 1894, chap. 556.) It is contended in behalf of the respondents, however, that the bequest here is neither to the school district nor to the trustees, but that by virtue of the provisions in the 3d article of the will it is a. gift to three special trustees to be elected as the custodians of the fund. It is further contended that the trust is not one permitted by law inasmuch as it is for “ the benefit of the school of said district and the promotion of the cause of public education,” whereas the statute authorizes such bequests only for the support and benefit of common schools within the district or of any particular common school or schools therein.

Neither of these objections seems to us to be well taken. By the terms of the 2d article of the will the bequest is explicitly made to “ School District number 4 (four) of the said town of North Hempstead.” - Nothing is said in that article about the trustees. The direction that the income shall be used and applied for the benefit of the school of said district and the promotion of the cause of public education therein is, in our opinion, equivalent to a direction that it be used for the support and benefit of all the common schools there, and hence is within the letter and spirit of section 19 of title II-of the Consolidated School Law. It is only, when we come. to the 3d article.of the will that we find the- testator expressing his desire that the management of this fund shall devolve upon three trustees; but in the provisions of that article on this subject we find nothing to prevent the gift from taking effect immediately, and can see no reason why the trustees of the school district could not take the fund at once. There is an express finding by the surrogate that there were at the time of the death of the testator three school trustees of said school district.' The wish of - the testator as expressed in the 3d- article is that the inhabitants “ shall either under existing laws or under special enactment by the Legislature resolve to have and shall elect three trustees for said district-.” As they had so resolved prior to his decease, and as there were three trustees in the district at the time of his death, the precise condition* of things which he contemplated as desirable then existed, and no suspension of the gift' was effected by these provisions of the 3d article expressing the wish of the testator as to the number of trustees by whom the fund should be managed..

3. We think also that the bequest to the Jones fund can be sustained. By .an act of- the Legislature passed in 1838, certain persons named therein Were appointed trustees of the Jones fund for the support of the poor in the towns of Oyster Bay and North Hempstead, and provision was made for choosing their successors, three from the town of Oyster Bay and two from the town of North Hempstead, at the annual town meetings therein. (Laws of 1838, chap. 312.) The statute declared that the trustees- of the said fund and their successors should be capable in law of suing and being sued by the name of The Trustees of the Jones Fund for the Support of the Poor,” and that they should be capable in law of taking, holding and managing said fund, or any part of .the same, as was by the last will and testament of Samuel Jones, late of the town of Oyster Bay, deceased, devised to- the towns of Oyster Bay and North Hempstead for the purposes aforesaid by the said testator.” The trustees were also declared to be capable of purchasing, holding and conveying any real or personal estate for the use and benefit of said fund, and carrying the intent of the said testator in creating the same, into full effect.”

There was subsequent legislation in respect to the trustees of the Jones fund in 1866, 1867, 1879 and 1880. That it was the intention of the Legislature to malre them a corporation, and that it did make them a corporation is manifest from chapter 244 of the Laws of 1866, where the trustees of the Jones fund for the support of the poor are directed to prepare a full and complete report of their proceedings in erecting certain buildings upon the poor farm in the town of Oyster Bay, including their accounts by items to be made in 'duplicate and verified “ by the president or treasurer of said corporation"

Under the General Corporation Law every corporation as such has power, though not specified in the law under which it is incorporated, to acquire by grant, gift, purchase, devise or bequest, to hold and to dispose of such property as the purposes of the corporation shall require, subject .to such limitations as may be prescribed by law.” (Laws of 1892, chap. 687, § 11, as amd. by Laws of 1895, chap. 672.) The purpose of the trustees of the Jones fund as a corporation was the disbursement of the income of the fund under their charge for the support of the poor in the towns of Oyster Bay and North Hempstead. Originally this fund consisted only of property received by the corporation from the estate of Samuel Jones. Subsequently it was increased by a bequest from one Walter R. Jones, as appears by chapter 229 of the Laws of 1880, amending the original act of 1838 under which the trustees were originally appointed. Referring to this second gift the learned surrogate said that it was deemed essential and necessary that the Legislature should pass a special act to enable the trustees to receive that fund. However this may have been at the time, it seems to us that now, under the provision of the General Corporation Law above .quoted, the trustees of the' Jones fund. may lawfully acquire by gift, devise or bequest any property which the donor is willing to devote to the same purpose as that to which the fund in their hands is already devoted. “ A corporation created for charity, etc.,” says Church, Ch. J., in Wetmore v. Parker (52 N. Y. 450), “ may take and hold personal property, limited by the donor to any of the corporate uses of the donee.” Here it may be said! that the corporate-uses of the donee are twofold —• the support of the poor in the town of Oyster Bay and the support of the poor in the town of North. Hempstead. The fact that the testator in the case before us has limited the benefits of liis contribution to the fund to the poor of the town of North Hempstead, operates in no manner to invalidate the gift. Indeed this limitation is indirectly beneficial to the poor of the town of Oyster Bay, because it must operate to lessen the charge on the. existing fund for the support of the poor of North Hempstead.

In the case already cited, Chief Judge Church adds that “a direction of the donor that the principal shall be kept inviolate, and the income only expended, will not invalidate the gift, provided, of course, that the same-is immediate and.vested. . The quest-firm relates to the capacity of the corporation, and the law of perpetuity has nothing td do with it.” : Holding as we do that the trustees of the Jones fund possess the requisite corporate capacity to take this gift, it is plain that the rule against perpetuities cannot apply, and it is unnecessary to consider any objection on that score. As was said by the Court of Appeals in Bird v. Merklee (supra): “Gifts to religious and charitable corporations to aid in carrying out the purposes for which they are organized, whether by expending the principal of a-bequest, or the income of a bequest to be invested in perpetuity, do not create a trust in any legal sense,'do-not offend against the statutes of perpetuities, are not to be judged by any of the well-known rules pertaining to the law of trusts as applied to private individuals.”

The decree of the surrogate must be modified in accordance with the views expressed in this opinion.

All concurred.

Decree of the Surrogate’s Court modified so as to adjudge the will in all respects valid, with costs to all the parties out of the fund.  