
    MATTER OF BAILEY.
    
      Chenango Surrogates Court;
    
    
      December, 1889.
    1. Wills; trust for benefit of church ; discretion of trustee as to custody of principal; validity.] A bequest of personal property in trust to pay the income to the trustees of a church to be used by them solely in paying the minister’s salary, is valid, notwithstanding a further provision giving the executor and trustee under the will, discretion to determine, at the expiration of a precedent life estate, whether he shall continue to retain possession of the principal or shall turn it over to the trustees of the church as substituted trustees.
    
    2. The same.] Testatrix devised and bequeathed her residuary estate to her executor and trustee in trust to sell and convert the same into money, and invest the proceeds in designated securities. From the income she directed the payment of such sums as the trustee may think necessary for the support of testatrix’ sister, but only in case she shall be in absolutely needy circumstances. The surplus income in each year, if any, she directed to be paid to the trustees of a specified church, to be used by them solely for the purpose of paying the salary of the minister, the whole of the income to be so paid if not needed for the support of the sister. After the death of. the sister, the will directed that if the church referred to shall be and remain incorporated and in good standing, and the trustee shall regard it safe and for the best interests of the estate, he may turn over the trust estate to the trustees of the church, who shall thereafter be trustees of the fund, to appropriate the income in the manner and for the purpose directed by the will.—Seld, construing such will in probate proceedings, that the provisions were valid; ■ that the intent was to vest the trust estate in the trustees of the church upon the death of the sister, the discretion of the executor and trustee being merely to determine whether it would be better for (he protection of the estate for him to retain possession of the fund or to pass it over to the substituted trustees; in either event ' the trust exists for the benefit of the church and is enforcible by it.
    .3. The same.] The fact that the trust is not for the benefit of the church generally, but is for the support of the minister, will not invalidate it. In such case the corporation is still the beneficiary. Nor does such trust violate the statute against perpetuities.
    Construction of the will of Catharine Bailey, deceased, under the provisions of section 2624 of the Code of Civil Procedure, in proceedings for its probate.
    The provisions in controversy are fully stated in- the opinion.
    
      Will G. Moulton, for the M. E. Church of McDonough.
    
      Thomas Waits, for contestant, Charles Poe.
    
      William F. O'Weil, for the petitioner, Harvey Poe.
    
      
       See note on drafting charitable bequests, 20 Abb. N. C. 474.
      
    
   Jenks, Surrogate.

Objections were -filed to the proof and probate of the will which were afterwards withdrawn, and the due execution of the will was proven without objection ; but the validity, construction and effect of the said will, and especially the seventh clause thereof, was put in issue by Charles Roe and Harvey Roe, as provided by section 2624 of the Code.

• The testatrix left no parents, husband or descendants. After providing for her burial, funeral expenses, the erection of a monument for herself and her parents, giving a fund of $50 for the care of the cemetery lot, she gives to a niece her silver spoons, and to her sister Abigail, her household furniture and wearing apparel.

By the seventh clause, she devises and bequeaths all the rest of her property, real and personal, to her executor and trustee, in trust, to sell, convey and convert the same into money, and invest in Hnited States bonds, or bonds and mortgages, and from the income thereof pay such sums as the executor and trustee may in his judgment think necessary for the support of her sister, Adeline Youngs; but only in case she shall be in“ absolutely needy circumstances the surplus, • in any one year, if any, to be paid to the trustees of the Methodist Episcopal Church of McDonough, to be used by them solely for the purpose of paying the salary of .the minister of said church. The whole of such income to be so paid, if not needed for the support of such sister.

The eighth clause' of the will is as follows: “ After the decease of my said sister Adeline, and after all other claims on my said property and estate as provided for and directed in this my last will and testament, shall have been fully met and disposed of as herein directed, if the said Methodist Episcopal Church of McDonough shall be and remain incorporated and in good standing, and my said executor and trustee shall regard safe and for the best interests of my estate, he may then and in that event, hand over and deliver to the then trustees of the said Methodist Episcopal Church, the said residue, rest and remainder of my estate, or the security or securities representing the same, and the said trustees of said church shall from thence thereafter become and be the trustees of such fund, under this my last will and testament, be governed in all respects by the directions herein in regard to said fund, in no event using any part of the principal of said fund for any purpose, and only appropriating the income thereof in the manner and for the purpose indicated and directed by me in this my last will and testament, and from the time of handing over and delivery of the said fund to the said trustees of said church and the receipt thereof by them, my said executor and trustee shall be discharged from all care of and liability for said fund.” • ■

The ninth clause provides that if the time shall come when such investments as prescribed dannot be made, the executor and trustee, or the trustees of said church, whichever shall then have control of the fund, shall invest the fund in such securities as shall be approved of by the surrogate.

Xo question is raised by the contestants over the incorporation or standing of the church. It must be conceded therefore that the donee of this trust is competent to take and use the bequest for the purpose indicated by the testatrix (Laws of 1813, ch. 60, § 1; Laws of 1875, ch. 443).

Like the bequest in Williams v. Williams (8 N. Y 525, 530), “ the object of this bequest is the support of a minister, which is one of the prominent objects for which these corporations are created. It is not essential to the validity of a bequest to a religious corporation, that it should be given generally for all the purposes for which it may be legally used, or for any to which the trustees may see fit to devote it (Holmes v. Mead, 52 N. Y. 235, 243 ; Wetmore v. Parker, 52 Id. 450, 457).

The trustee is directed to sell the real estate and invest the proceeds, together with the personal estate, in government bonds or bonds and mortgages. It is therefore an equitable conversion of the real estate into personal, and the provisions of the Revised Statutes relating to the devise of real estate do not apply (Power v. Cassidy, 79 N. Y. 602; Wetmore v. Parker, 52 Id. 450, 456).

The provision in the will that the income only should be used by the trustees, does not invalidate the bequest and is not affected by the statute against perpetuities (Wetmore v. Parker, supra; Robert v. Corning, 89 N. Y. 225, 241).

The first principle in interpreting wills is that the intention of the testator as expressed in the will shall prevail, in case no rule of law is violated. In this case there is no room for doubt that the testatrix intended that the M. E Church of McDonough should have the benefit of her entire residuary estate, after satisfying the absolute needs of her sister during her life. The estate vested in her executor and trustee upon her death. The mode of investment and the disposition of the income is very clearly expressed. No person save the sister and the church has any claim upon such income in-any event.

The right of the trustees of the church to enforce payment of that portion of the income of the fund not needed for the support of the sister, so long as she shall live, is not questioned by the contestant. During her lifetime the executor has no discretion to withhold that portion of the income not absolutely needed for the support of the sister. During the sister’s lifetime there can be no doubt that the trustees of the church can appeal to a court of equity to enforce their rights by a judicial decree, for by the terms of the seventh clause of the will the only discretion reposed in the executor is to determine how little will answer to satisfy the absolute needs of the sister ; the balance must be paid over to the trustees. This discretion is very carefully guarded in the interests of the church, and clearly indicates the intention of the testatrix to devote as large a portion as possible of the residuary fund towards the support .of its minister. Is there any reason for supposing that she was not equally solicitous for the welfare, of the church, after her sister should cease to have any claim upon her bounty ?

The eighth clause of the will clearly shows her intention to vest the whole residuary fund in the trustees of the church, upon the death of her sister, for the same purpose as before, the support of the minister, and the discharge of her executor and trustee from any further duty relating to the trust, provided he should regard it safe and for the best interests of her estate to make such transfer. The discretion was merely to determine whether it would be better for the due protection of the estate for the executor to continue to hold the fund in his own hands or to pass it over to the trustees of the church as the substituted trustees of this trust; but there is nothing in the language of this clause, or in the general scheme of this will, to indicate any intention of the testatrix to confer any power upon the executor to withhold the income of the fund from the trustees of the church. Because of this discretion the trustees of the church might not have the right to demand the custody and control of the principal of this fund, but if the income therefrom should be withheld from them, I have no doubt of their right to appeal to the courts for the enforcement of their rights.

A testamentary direction, requiring some portion of an estate to be applied by an executor to a charitable object— the plan of the charity, and the sum necessary for its execution to be designated by some person not the executor, might perhaps be enforced if the person named elected to accept the personal trust and make the designation or appointment (Beekman v. Bonsor, 23 N. Y. 293, 305, Comstock, Ch. J.).

There is no occasion in this case for the exercise of the cypres power, for there is no indefiniteness of the object and purpose of the' trust, and nothing in the way of effectuating the intention of the donor.

A direction by the donor that the principal shall be kept inviolate, and the income only expended, will not invalidate the gift (Wetmore v. Parker, 52 N. Y. 458).

In the case at bar, any other course would defeat the purpose the donor had'in view.

Direction to permanently invest the principal and to continue for all time, does not suspend the ownership for a day.

The fact that power is conferred upon the executors to designate the beneficiaries, does not render the will void for uncertainty. Had there been a failure to make the selection, the court would have power to decree the execution of the trust- (Power v. Cassidy, 79 N. Y. 602).

Numerous authorities sustain devises and bequests to executors which confer upon them authority to divide the same among such persons as they may select from certain classes which are designated, and among such children or relatives who are intended to be provided for, whom they may deem proper (Id. 511).

Where there is a good trustee to take the funds in the first instance, a succession of new trustees may be provided by the court by new appointment as often as circumstances may require (Bascom v. Albertson, 34 N. Y. 591).

Discretionary powers are usually in the nature of a trust, and are designed for the benefit .of the declared objects, whether as a class or as individuals, and for that reason courts will endeavor to adopt a construction by which the object of the testator’s bounty will take a vested interest in the gift (Tiffany and Bullard on Trusts, 738).

Here are donees capable of taking the subject matter of the trust; the objects of the- trusts are legal, and sufficiently definite to admit of enforcement by a court of equity. Although the income is to be devoted to the support of the minister in charge, whoever he may be, it is really for the benefit of the church, as it is partially relieved from that duty. Besides, it is an essential feature of a charitable or public trust, that the beneficiaries are uncertain, fluctuating and changing.

In the Tilden will, to which my attention is especially called by the contestants, the beneficiaries take nothing, by virtue of the will itself, but only by virtue of the action of executors. The executors were requested to obtain an act of the legislature incorporating an institution to be called the “ Tilden Trust,” for the purpose of establishing a free library and reading-room in the city of Hew York, and to promote such scientific and educational objects as the executors and trustees might designate. If the act of incorporation should be obtained during the lives of two persons named, in form and manner satisfactory to such executors, they were authorized to organize the corporation, select the first trustees, and convey to, or apply to the use of the same, the remainder of his estate, “or so much thereof as they may deem expedient /” but if the institution should not be incorporated, “ or if for any cause or reason my said executors and trustees shall deem it inexpedient to convey said rest, residue and remainder, or any part thereof, or to apply the same or any part thereof to the said institution, I authorize my said executors and trustees to apply the rest, residue and remainder of my property to such charitable, educational and scientific purposes as in the judgment of said executors and trustees will render the rest, residue and remainder of my property most widely and substantially beneficial to the interests of mankind.”

No estate is vested in the beneficiaries by virtue of the will itself. It requires the action of the trustees to vest any interest in the beneficiaries. They may give or withhold in their discretion. The “Tilden Trust,” if incorporated in form and manner satisfactory to the trustees, takes nothing unless the trustees deem it expedient. They may •direct the whole or any part of the residuary estate to such •charitable, educational and scientific purposes, as in their judgment will be most beneficial to the interests of mankind. There is no certain beneficiary who can claim the enforcement of the trust. The “ Tilden Trust,” even after an act of incorporation satisfactory to the executors, could demand nothing at their hands as a matter of right. It would be a perfect answer to any application this corporation might make for the enforcement of the trust, that the executors and trustees did not deem it expedient to convey any portion of the fund to such corporation. It is very clear that no other person or corporation would have any standing in court in the interests of general. charity, education or Science.

The provisions of the Tilden will are very unlike those under consideration. The subject and object of the trust in question are definite and certain. There is but one beneficiary in any event. The executor and trustee has no discretion to direct the principal or income of the fund, or any part of either, from the church to any other object or purpose. It is conceded that the draughtsmen of the will might have expressed more clearly the idea that in case he did not deem it safe and for the best interests of the estate to deliver the principal of the fund to the trustees of the church, he •should continue to invest the fund in the manner already provided, and pay the income to the trustees of the church, to be used for the benefit of its minister, but it is perfectly «clear from the whole scheme of the will that such was the intention of the testatrix. No other thought or intention is apparent from the whole instrument, than that the church should be the sole beneficiary of the fund. The executor-must give the trustees of the church the income, but may-in his discretion retain the control of the principal.

This intention is made still more clear by the provision, in the ninth clause of the will, that whenever it shall become-impracticable, or imposssible to loan the trust funds as-directed in the seventh clause, the executer and trustee, or the trustees of the church, whichever shall have control of said fund according to the terms and conditions thereof,, shall loan the trust funds and keep them invested -in such securities as shall be approved of by the Surrogate of Chenango County. This provision is utterly inconsistent, with any other construction than that the trust should continue in the executor and trustee unless he decided to-pass it over to the trustees of the church.

A decree will be entered admitting the will to probate,, and adjudging the validity of the bequests for the benefit of said church. 
      
       No appeal was taken.
     