
    In the Matter of the Accounting of United States Trust Company of New York et al., as Trustees under the Will of George S. Scott, Deceased. St. Thomas Church in the City and County of New York, Appellant; Louis J. Lefkowitz, Attorney-General of the State of New York, for Ultimate Charitable Beneficiaries, et al., Respondents.
    Argued October 10, 1960;
    decided December 1, 1960.
    
      
      Charles H. Tuttle, George A. Wilson and Douglas F. Williamson, Jr., for appellant.
    I. Under the codicil’s terms and under pertinent judicial decisions, Scott’s primary intention was to make a gift to St. Thomas Church in perpetuity for a memorial to the Scott family. Since the secondary and precatory expression as to the erection and maintenance of a tuberculosis “ Home ” on a site to be secured failed of practicality before the fund vested in the church, and since there is neither a trust, a condition precedent, a gift over, nor a defeasance clause, the legacy (for the purpose of a memorial) vests absolutely in the church as the primary named and vested donee. The Surrogate had in law no authority to impose a disposition framed and decreed by himself to be observed by the church under penalty of forfeiture. (Johnston v. Hughes, 187 N. Y. 446; Farmers’ Loan & Trust Co. v. Shaw, 56 Misc. 201, 127 App. Div. 656; Matter of Griffin, 167 N. Y. 71; Matter of Durand, 194 N. Y. 477; Bird v. Merklee, 144 N. Y. 544; Matter of Baldwin, 74 Misc. 325; 
      Matter of Schrieb, 190 Misc. 547; Matter of Donald, 149 Misc. 142; Matter of Gerity, 248 App. Div. 903; Corporation of Chamber of Commerce of State of N. Y. v. Bennett, 143 Misc. 513; Matter of Fairchild, 15 Misc 2d 272; Edgar v. Waldo, 227 N. Y. 656; Matter of Hoyt, 142 Misc. 344.) II. The contention heretofore made in the Attorney-General’s briefs that St. Joseph’s Hosp. v. Bennett (281 N. Y. 115) “overruled” Johnston v. Hughes (187 1ST. Y. 446), and four other decisions cited by us supra, is unsound, but serves to emphasize the importance to this case of these five decisions thus erroneously claimed to have been overruled. The St. Joseph’s case is on an altogether different factual basis. It does not profess to overrule any decision and has never been interpreted as so doing. (Cadman Mem. Cong. Soc. of Brooklyn v. Kenyon, 306 N. Y. 151; Attinson v. Consumer-Farmer Milk Co-op., 197 Misc. 336; Matter of Corlies, 150 Misc. 596, 242 App. Div. 703.) III. The courts have always recognized the right and power of a testator to vest a testamentary fund in a named legatee in reliance on the legatee’s sense of judgment and of moral obligation. (Matter of Hayes, 263 N. Y. 219; Webster v. Gleizes, 251 N. Y. 554; Matter of Isbell, 1 App. Div. 158; Matter of Abbe, 138 Misc. 210.) IV. The courts below further erred in holding that the codicil manifested “a general charitable intent” which, notwithstanding the impracticabilities of the “Home” as described, would exclude St. Thomas Church itself as donee in its own right for the purpose of a memorial to the Scott family, and which would reduce the church to the position of a mere conduit for such charitable objectives as the court might devise, under penalty of forfeiting all connection whatever with the fund. (Matter of Prall, 78 App. Div. 301; Matter of Durbrow, 245 N. Y. 469; Matter of Morris, 227 N. Y. 141.) Y. There is nothing whatever in the codicil to indicate that Scott intended, in case the described “Home” for tuberculosis patients proved impractical, that the gift should be devoted to the care of persons “ suffering from respiratory and thoracic diseases ” and that the testator’s wish for an outward and publicly visible and permanent family memorial should be dropped. (Matter of Syracuse Univ. [Heffron], 3 N Y 2d 665.)
    
      Louis J. Lefkowitz, Attorney-General (P. Hodges Combier, Paxton Blair and Percy E. Schuberth, Jr., of counsel), for Attorney-General of the State of New York, respondent.
    I. The determinations of the court below effectuate the testamentary directions and the dominant charitable intent and purpose of the testator for the benefit of the intended beneficiaries, represented herein by the Attorney-General, as distinguished from any purely religious purpose, however laudable, favored by the present management of the church. The church, as a religious corporation, is competent to take and administer the legacy directed to be applied exclusively to charitable purposes and must apply it to the stipulated purposes and no intestacy can occur. (Inglis v. Trustees of Sailor’s Snug Harbour, 3 Pet. [28 U. S.] 99; Matter of Sturgis, 164 N. Y. 485; Matter of Howe, 1 Paige Ch. 214; Bird v. Merklee, 144 N. Y. 544; Matter of St. John’s Church of Mt. Morris, 237 App. Div. 454, 263 N. Y. 638 ; Matter of Rupprecht, 271 App. Div. 376, 297 N. Y. 462; Williams v. Williams, 8 N. Y. 525; Rector of Church of Redeemer v. Crawford, 43 N. Y. 476; Wetmore v. Parker, 52 N. Y. 450; St. Joseph’s Hosp. v. Bennett, 281 N. Y. 115; Matter of Prall, 78 App. Div. 301; Matter of White, 118 App. Div. 869; Matter of Mount Sinai Hosp., 250 N. Y. 103; Field v. Field, 9 Wend. 394; Cadman Mem. Cong. Soc. of Brooklyn v. Kenyon, 279 App. Div. 1015, 306 N. Y. 151; Dartmouth Coll. v. Woodward, 4 Wheat. [17 U. S.] 518; Mormon Church v. United States, 136 U. S. 1; Sherman v. Richmond Hose Co., 230 N. Y. 462; Matter of Lawless, 194 Misc. 844, 277 App. Div. 1045, 302 N. Y. 949.) II. A true construction of the testator’s testamentary dispositions discloses his dominant intent and mandatory direction that his residuary remainder legacy should be used, exclusively, for the specified charitable purposes. (Matter of Campbell, 170 N. Y. 84; Livingston v. Ward, 247 N. Y. 97 ; Matter of Satterwhite, 262 N. Y. 339; Matter of Browning, 165 Misc. 819, 254 App. Div. 843, 281 N. Y. 577.) III. The powers of the court and the duties of the Attorney-General, in the light of the Tilden Act, have been properly applied below. (Cadman Mem. Cong. Soc. of Brooklyn v. Kenyon, 279 App. Div. 1015, 306 N. Y. 151; Madison Ave. Baptist Church v. Oliver St. Baptist Church, 46 N. Y. 131, 73 N. Y. 82; Moritz v. United Brethrens Church on Staten Is., 269 N. Y. 125; People v. Volunteer Rescue Army, 262 App. Div. 237; Matter of Syracuse Univ. [Heffron], 3 N Y 2d 665; Matter of Syracuse Univ. [Hendricks], 1 Misc 2d 904, 3 A Dz 2d 890, 4 N Y 2d 744.) IV. If the court should find that there is any ambiguity as to what the testator intended, then the court may consider how the legatee church construed the legacy for a score of years after the testator died, as depicted by the 1931 assignment. (Nicoll v. Mumford, 4 Johns. Ch. 522; Moir v. Brown, 14 Barb. 39; Lady Superior of Cong. Nunnery of Montreal v. McNamara, 3 Barb. Ch. 375; Livingston v. Ten Broeck, 16 Johns. 14; Reid v. Sprague, 72 N. Y. 457; Woolsey v. Funke, 121 N. Y. 87; Seymour v. Warren, 179 N. Y. 1; City of New York v. New York City Ry. Co., 193 N. Y. 543; Bacon v. Sayre, 84 Misc. 462, 164 App. Div. 909, 218 N. Y. 725; Dobbins v. Pratt Chuck Co., 242 N. Y. 106; Matter of Kolb v. Holling, 285 N. Y. 104; Matter of 440 East 102 St. Corp. v. Murdock, 285 N. Y. 298; Town of Pelham v. City of Mt. Vernon, 304 N. Y. 15.)
    
      Andrew Shiland and Arthur J. Marangelo for United States Trust Company of New York and Alton S. Keeler, respondents.
    Petitioners took a neutral position before the Surrogate, before the Appellate Division, and in connection with the application of St. Thomas Church for leave to appeal to this court, and continue such position on the appeal itself.
   Van Voorhis, J.

This appeal by St. Thomas Church in New York City is from an affirmance of a decree of the Surrogate’s Court construing the will and codicil of the late George S. Scott and applying the cy pres doctrine thereto. It raises questions whether a bequest to this religious corporation was absolute, and, if not, whether the purposes of the testator as expressed in his testament have been followed or ignored in the variance which has been made by cy pres in the disposition of the gift which the decedent directed. Inasmuch as the subject assets have been transferred to New York where St. Thomas Church was incorporated, both sides have treated the law of New York State as controlling. Upon the death of the last life income beneficiary, in default of lineal descendants, the testator gave the remainder to the Rector, Church Wardens and Vestrymen of St. Thomas’ Church in the City of New York, for the purpose of erecting and maintaining, in such place as they may select, a building or buildings for the care of persons suffering from tuberculosis, to be called the Scott Memorial Home.”

The petition by the corporate testamentary trustee alleges that the last income beneficiary died December 18, 1957 and that a question is presented concerning the construction and effect of the will and codicil relative to whether the said property vests in St. Thomas Church absolutely and without restriction. A letter from St. Thomas Church is incorporated in the petition stating that its position is that the fund vested absolutely in the church and that the language of the bequest is precatory only that a building or buildings be erected and maintained for the care of persons suffering from tuberculosis. In addition St. Thomas Church stated in this letter that the need for home's for the care of persons suffering from tuberculosis has precipitously declined during the course of the years since the death of George S. Scott in 1912, and that the principal of the said residuary would not in any event be sufficient at this time to cover the cost of erecting and maintaining such a building. The letter concludes by stating that it is accordingly the belief of the vestry that, consistent with the intent of George S. Scott, the church should use the fund by expending not to exceed $600,000 for the purpose of adorning and completing the Fifth Avenue facade of the church’s gothic building, the carillon tower and the 53rd Street side, placing a Scott memorial plaque at the Fifth Avenue entrance; and by holding the balance of the principal as part of the church endowments in a separate fund to be known as the Scott Memorial Fund, expending so much of the income therefrom as might be needed from time to time for the proper maintenance and repair of the said improvements to the church building and the balance to be devoted to general charitable uses in the discretion of the vestry. The present value of the fund is approximately $1,600,000. The answer of St. Thomas Church stated its position as thus expressed in its letter to the testamentary trustee incorporated in the petition, and further alleged absolute and unconditional assignments to St. Thomas Church by the lineal descendants of George S. Scott, their distributees, devisees and legatees. This answer further alleged that, if it were to be held that the church is not at liberty to use this fund for its general corporate purposes, the cv pres powers of the court should be exercised as stated in the letter inasmuch as it has become impractical and impossible to use the principal of the residuary trust for the purpose stated.

The assignment to St. Thomas- Church of all right, title and interest by the beneficiaries of George S. Scott and their successors may have indicated what they thought to have been his intent, but could not supersede the responsibility of the Attorney-General to act under sections 12 of the Personal Property Law and 113 of the Real Property Law. Although the legacy vests in St. Thomas Church under the will and codicil, it must be devoted to the uses stated in the testament unless modified by cy pres (St. Joseph’s Hosp. v. Bennett, 281 N. Y. 115; Matter of Lawless, 194 Misc. 844, affd. 277 App. Div. 1045, motion for leave to appeal denied 302 N. Y. 949). Situations where a charitable gift fails on account of lack of qualified beneficiaries (Holmes v. Mead, 52 N. Y. 332, overruling Williams v. Williams, 8 N. Y. 525, insofar as it upheld the law of charitable uses as it existed in England at the time of the Revolution), are not to be confused with decisions such as Wetmore v. Parker (52 N. Y. 450), where the gift is to a religious or charitable corporation. The difference is between charitable gifts that fail for lack of beneficiaries and those which are upheld by reason of the identifiable nature and capacity to take of a corporation. Where a charitable gift was to a corporation but restricted to designated uses, the restriction has always been enforced (Bird v. Merklee, 144 N. Y. 544; Matter of Griffin, 167 N. Y. 71, see opinion by Cullen, J., pp. 82-84, concurred in by the majority; Matter of Durand, 194 N. Y. 477). The cy pres rule, to be sure, went out of existence with the charitable trust doctrine, but was reinstated with it by the Tilden Act in 1893 (L. 1893, ch. 701; Allen v. Stevens, 161 N. Y. 122), and applies to gifts to charitable corporations as well as to what are charitable trusts in the technical sense (Sherman v. Richmond Hose Co., 230 N. Y. 462; Matter of Gary, 248 App. Div. 373, affd. 272 N. Y. 635).

In sustaining the contention of the Attorney-General, however, that the intention of the testator was ‘ not to benefit either St. Thomas Church or to devote such remainder to the advancement of the religious functions or objectives of St. Thomas Church,” we think that the Surrogate exceeded the powers conferred upon him by sections 12 of the Personal Property. Law and 113 of the Real Property Law. The testator would not have named St. Thomas Church in this capacity unless part of his intention was to advance its objectives. The circumstances called for the cy pres rule, but these statutes require that the direction made shall be such as “ will most effectually accomplish the general purpose ” of the testament, where due to change in circumstances a literal compliance has become ‘ ‘ impracticable or impossible ’ In the construction of wills ‘ ‘ ‘ where the intent of the testator is to be ascertained from his language alone, or from his language and surrounding circumstances about which there is no dispute ’ ”, the intention of the testator is “ a question of law and not one of fact ” (Matter of Potter, 307 N. Y. 504, 515, italics from original, quoting from Underhill v. Vandervoort, 56 N. Y. 242, 247; Matter of Burk, 298 N. Y. 450, 455; Williams v. Jones, 166 N. Y. 522; Ruiz v. Renauld, 100 N. Y. 256; Matter of Hier, 205 App. Div. 215, 217). In a cy pres proceeding the way may be open to more than one practical substitute for a direction by a testator which can no longer be executed, but the circumstance that there may be more than one alternative in deciding what disposition most nearly resembles that which was made by the testator does not preclude a question of law from arising concerning whether the Surrogate has exceeded his powers by overriding or failing to give effect to basic purposes of the testator as expressed in the instrument. We think that this has happened here. Every testamentary or other trust instrument stands largely on its own feet when it comes to the application of the rule of cy pres. The language and circumstances are seldom twice alike. Here the language and undisputed circumstances show that the testator was actuated by three dominant considerations: (1) that his name and the name of his family should be connected with a building erected and maintained for the benefit of mankind, which would be a tangible memorial to their public spirit; (2) that this building should be erected and maintained by St. Thomas Church in the City of New York, with which he had long been connected, as a visible symbol of its good works; and (3) that people afflicted with tuberculosis, upon whom he had compassion, should be aided in their struggles for life and health. When he executed this will in 1904 and codicil in 1911 it was customary to treat tubercular patients in sanatoriums, and it was reasonable to expect that the remainder given to St. Thomas’ would accomplish that result. Now that the number of tubercular patients has declined and the method of treatment changed so that even Trudeau Sanatorium at Saranac Lake, Loomis Institute at Liberty and various other similar institutions have been discontinued, it would be impracticable in any event to give effect to the third purpose enumerated above in the manner prescribed by the testator. If that had been the i only purpose which the testator had in mind, he would have j been likely to have given the remainder directly to that type of Í institution. The Surrogate changed the testator’s direction by , substituting the care of persons suffering from ‘ respiratory and thoracic diseases ” in place of tuberculosis. The difficulty with the decision is that he concluded that the third numbered objective was the only purpose which the testator had in mind. Determining that it was not Mr. Scott’s purpose to benefit St. Thomas Church or to advance its objectives, • the Surrogate directed that the fund be administered by some other organization whose objectives presumably would be served if St. Thomas Church declined to execute what was regarded as equivalent to an ultra vires assignment. The decree erroneously directs the use of the money in a manner designed not to benefit St. Thomas Church and without memorializing the Scott family except by describing these assets as the ‘ ‘ Scott Memorial Fund” on the records of whatever organization were to administer them.

This disposition failed as matter of law, we think, to give effect insofar as practicable to the full design of the testator as manifested by his will and codicil. His purpose was not exclusively to aid tuberculars. Even that aim was found to be impractical except by broadening it to encompass all respiratory and thoracic diseases. There was an accompanying intent to promote the objectives of St. Thomas Church by assisting it to engage in good works without which faith alone is dead. Nor was it a selfish ” purpose, inconsistent with cy pres, to desire to perpetuate conspicuously the name and memory of the donor as a benefactor of the church and humankind. Naming a charitable fund after the Scott family on the records of whatever institution might administer this fund is of a different order of magnitude from causing a building to bear his name, as the will directs. It is not always possible to carry into effect all of the motivating factors of a program such as this testator put forward, but in the circumstances here presented we think that it was an unlawful dilution of his purpose to eliminate any benefit to St. Thomas Church and any tangible memorial to himself. A. building erected and maintained by St. Thomas Church was plainly important in his calculations, in order that its light (like his own) would, in Biblical words, so shine before men so that they might see their good works. These desires are deeply ingrained in human nature and are effective motivating forces in donations of this character. Cy pres is not designed to nullify them, where, as here, it is practicable to encompass them in the decree.

We agree with the Attorney-General and with the courts below that the original contention of St. Thomas Church is invalid that it has absolute power to use this remainder for any corporate purpose, and likewise that its proposal was unjustified to devote almost all of these funds by cy pres to the church building. Nevertheless it does not follow that none should be expended on this edifice, since we are persuaded that the testator was concerned among other matters with attaching his family name* if possible, to a building or buildings maintained by St. Thomas Church. Appellant’s brief states that the church vestry has | modified its original position by adopting a resolution “that ] $350,000 be used to provide an appropriate outward and visible ; memorial on the Fifth Avenue facade of the Church, and that the income from the balance be devoted to the establishment and maintenance of a clinical program in conjunction with St. Luke’s Hospital or some other Episcopal hospital willing to provide and designate such a program as a memorial to George S. Scott and his family.”

It is not for us on this appeal to approve or to disapprove a different, specific plan from the one described in the decree, but in our judgment the program advanced by the Attorney-General and directed by the order appealed from is erroneous as matter of law in determining that it was no part of the purpose of the testator to advance objectives of St. Thomas Church and in failing to discern or deciding that it is impracticable to execute more completely the objectives manifested by the will and codicil.

The order appealed from should be reversed, with costs to appellant in all courts payable out of the fund, and the matter remitted to the Surrogates’ Court for further proceedings not inconsistent with the opinion herein.

Burke, J. (dissenting).

There is nothing in the record to indicate an abuse of the discretion possessed by the Surrogate and the Appellate Division.

We have said that The exercise of the cy pres doctrine always involves a large measure of discretion ” (Sherman v. Richmond Hose Co., 230 N. Y. 462, 473; City Bank Farmers Trust Co. v. Arnold, 283 N. Y. 184, 195). It was, therefore, the duty of the Surrogate to provide that the funds should be administered in such manner as in his opinion would best serve the purposes for which the testator intended his property to be used.

When the courts below have had to exercise a judgment in regard to the ways and means of carrying out a testamentary purpose of a decedent which cannot be precisely accomplished, we are not empowered to substitute our opinions in place of theirs unless the uses commanded by the Surrogate constitute as a matter of law an improper exercise of discretion.

In this case the decree, which directs that the assets of the trust should be applied under the aegis of the church and in the name of the Scott Memorial Fund to the care of persons suffering from respiratory and thoracic diseases, is in accord not only with the purposes of the trust as expressed in the will, but also with that part of the resolution of the vestrymen of the church which proposes to set aside approximately 70% of the trust funds on hand for the care of.persons suffering from tuberculosis through a program to be instituted by the church at St. Luke’s Hospital or other Episcopal hospitals.

Where an appellant thus agrees with the finding of the Surrogate as to the dominant charitable purpose of the testator, we can hardly decide as a matter of law that the Surrogate and the Appellate Division must be held to have improperly exercised the discretion entrusted to them in failing to authorize the use of the balance of the fund for a purpose which, albeit worthy, is quite different.

The order appealed from should be affirmed, with costs in this court to all parties.

Judges Dye, Froessel and Foster concur with Judge Van Voorhis; Judge Burke dissents in an opinion in which Chief Judge Desmond and Judge Fuld concur.

Order reversed, etc.  