
    BUTTERWORTH et al. v. KEELER et al.
    (Supreme Court, Appellate Division, First Department.
    July 9, 1915.)
    1. Charities <@=>21—Specification of Beneficiary—Necessity—Statutes.
    A trust for the “establishment of a school for girls” in a town is invalid for lack of definite beneficiaries, unless covered by Personal Property Law (Consol. Laws, c. 41) § 12, providing that no gift to religious, educational, charitable, or benevolent uses shall be deemed invalid by reason of the indefiniteness of the beneficiary named in the instrument creating the same.
    [Ed. Note.—For other cases, see Charities, Cent. Dig. §§ 44M50; Dec. Dig. <S=>21.]
    2. Charities <@=>21—Bequest in Trust—Validity.
    Under Personal Property Law, § 12, providing that no gift to religious, educational, charitable, or benevolent uses shall be invalid for the indefiniteness of the beneficiary, where testatrix gave half her residuary estate intrust for the “establishment of a school for girls in the town of N. S.,” testatrix being a widow advanced in years, without children, having lived and owned property a long time in the town, her neighbors being mainly poor wage-earners, and the facilities for public education of the town being meager, there being other unquestionable charitable bequests in the will, the trust was valid as having been intended by the testatrix as a charity, since the construction of a will, which is susceptible of more than one, that sustains the trust and devotes the fund to purposes permitted by law and the good of humanity, .should be preferred by the courts.
    [Ed. Note.—For other cases, see Charities, Cent. Dig. §§ 44-50; Dec. Dig. <@=>21.]
    3. Charities @=>23—Bequest in Trust—Provision for Details.
    The testatrix, in giving a fund to her executors for the establishment of a girls’ school, could leave the details of the plan, such as the description of the kind of school, whether elementary or advanced, general, special, or technical, sectarian or nonsectarian, to the discretion of her trustees, without invalidating the gift.
    [Ed. Note.—For other cases, see Charities, Cent. Dig. § 43; Dec. Dig. <@=>23.]
    4. Charities <@=>26—Suspension of Alienation—'Waiver of Objections.
    Where testatrix’s will gave personalty in trust to build a Catholic church, the sum to be held by the trustee for three years, and, if no action was taken during such period toward building a church, then to the trustee absolutely, and the only parties interested in invalidating the_ gift did not challenge it, either by answer, argument, or request for findings, the disposition might be held valid on the ground that charitable bequests are no longer subject to the rule prohibiting the suspension of the power of alienation for a term of years, since the court should not be astute to award parties property not claimed by them.
    
      .<g=cFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      [Ed. Note.—For other cases, see Charities, Cent. Dig. § 15; Dec. Dig. @¿>26.]
    5. Reference @=>83—Jurisdiction. .
    . The jurisdiction of the referee is limited to the determination of the issues in the action, and a matter not mentioned in the pleadings or the order of reference cannot be dealt with in his report.
    [Ed. Note.—For other cases, see Reference, Cent. Dig. §§ 121-126; Dec. Dig. @=>83.]
    Appeal from Judgment on Report of Referee.
    Action by George F. Butterworth and another, as executors, etc., of Cornelia Storrs, deceased, against Charles E. Keeler and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
    The following is the opinion of Referee Edward F. Sprague:
    The decedent by her will gave one-half of her residuary estate to her executors, “in trust, nevertheless, to be used and devoted by them to the establishment of a school for girls in the town of North Salem.” The amount of this gift appears to be approximately $75,000. The only serious question in the case is concerned with the validity of this gift.
    
       The gift is undoubtedly invalid, unless governed by section 12 of the Personal Property Law, which provides that “no gift, grant, or bequest to religious, educational, charitable or benevolent uses, which shall in other! respects be valid under the laws of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same." The inquiry here must be whether this is a gift to “religious, educational, charitable or benevolent uses." The language of the statute above cited has been considered by the Court of Appeals in five distinct cases within the past six years. Matter of Shattuck, 193 N. Y. 446, 86 N. E. 455; Manley v. Fiske, 139 App. Div. 665, 124 N. Y. Supp. 149, affirmed without opinion 201 N. Y. 546, 95 N. E. 1133; Matter of Robinson, 203 N. Y. 380, 96 N. E. 925, 37 L. R. A. (N. S.) 1023; Starr v. Selleck, 145 App. Div. 869, 130 N. Y. Supp. 693, affirmed without opinion 205 N. Y. 545, 98 N. E. 1116; Matter of Cunningham, 206 N. Y. 601, 100 N. E. 437. In all these cases, except Matter of Shattuck, the testamentary disposition was held valid. In the Shattuck Case the gift was to the executor, “in trust, however, the rents, profits ánd income thereof to be expended by. him annually and to be paid over to religious, educational or eleemosynary institutions as in his judgment may seem advisable.” The court, construing chapter 701 of the Laws of 1893 (now section 12 of the Personal Property Law), held that the intention of. the Legislature in passing the act of 1893 was to save to the public charitable gifts made in trust to uncertain and indefinite beneficiaries; that gifts for the benefit of private institutions or individuals were not intended to be included within its provisions; that to constitute a charity the use must be public in its nature; that an educational institution is not necessarily a public or ^charitable institution ; and that under the will of the testatrix the trustee could lawfully make a disposition of the proceeds of the trust fund which would be in whole or in part private and individual and not public and charitable. For these reasons the gift in the Shattuck Case was held invalid.
    Applying this line of reasoning to the present case, it appears at once that these trustees have no discretion in selecting the object of the testatrix’s bounty. The bequest is “to be used .and devoted by them to the establishment of a schoolfor girls in the town of North Salem.” The. sole question here is whether this is a charitable gift for the benefit of the public. Mrs. Storrs, the testatrix, was a woman somewhat advanced in years, a widow having no children or descendants. She had been long a resident of North Salem, owning several pieces of real estate in the town. Her neighbors were mainly persons of narrow means, belonging to the wage-earning class. The facilities for public education were meager. Mrs. Storrs was a woman of charitable impulses. In the fifth clause of her will she provides for a small contribution towards the building of a Roman Catholic Church, and she gives one-half of her residuary estate to the New York Skin and Cancer Hospital. I see no escape from the conclusion that this proposed school for girls was intended as a charity. The words of Judge Chase in Matter of Robinson, 203 N. Y. 380, 388, 96 N. E. 925, 927, 37 L. R. A. (N. S.) 1023, are peculiarly appropriate: “It is doubtless true that the paragraph of the will by which the trust is attempted to be created is susceptible of more than one construction, but a construction which is fairly within the rules of law, and that sustains the trust and devotes the fund included therein to purposes permitted by law and to the good of humanity, should be preferred.”
    
      dJ=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      Counsel for defendants contend that it would be competent for the trustees under Mrs. Storrs’ will to conduct a private school for profit. But she makes no disposition of any such possible profit. It is argued by one of the counsel that the trustees might lawfully apply the profit to their own use. But it is hardly conceivable that Mrs. Storrs should have desired or expected that a New York lawyer and a business man residing in New Jersey and doing business in New York should establish a girls’ school in a small town in Westchester county for their own personal profit, and it is quite clear that the profit would not belong to them, if they made any. As I read "the will, the only rational construction is that this was a charitable gift. If so, then it was a gift for public charity; the beneficiaries being the girls of the town of North Salem.
    
       It is further objected that the will is not sufficiently definite in prescribing the kind of school to be established, whether elementary or advanced, general, special, or technical, sectarian or nonsectarian. But these are details which the testatrix intrusted to the discretion of her trustees, as she had the right to do. A very acute and exhaustive analysis of the New York law of charity will be found in the case of Utica Trust & Deposit Co. v. Thompson, 87 Misc. Rep. 31, 149 N. Y. Supp. 392. While the facts in that case do not closely resemble those now under consideration, I have found Judge Emerson’s reasoning and conclusions of great assistance. I have not regarded the case of Attorney General v. Soule, 28 Mich. 153, as a controlling authority. It is cited by Judge Chase in his opinion in the Shattuck Case, but was quite unnecessary to that decision, and is much more stringent in its limitations upon charitable bequests. I am of the opinion that it does not state-correctly the law of our state upon this subject
    
       The complaint also questions the validity of clause “Eifthly” of the will, whereby certain real and personal property is given to James W. Christopher, “in trust, nevertheless, for the purpose of building a Catholic church, the same to be held by the said James W. Christopher for the period of three years, and if no action is taken during said period towards building a church, then * * * to the said James W. Christopher absolutely.” ' The Value of this gift is only about $550. If I am correct in sustaining the residuary clause, the only parties interested in avoiding this gift are the New York Skin and Cancer Hospital, and the people of the state representing the school trust; but neither of these parties has challenged the validity of this clause, either by way-of answer, or of argument, or of request for findings. Plaintiffs’ counsel contend in their brief that the gift is valid on the ground that since the statute above cited charitable bequests are no longer subject to the rule which prohibits the suspension of the power of alienation for a term of years. With some hesitation I accept this conclusion, and hold the disposition valid. The court should not be astute to award to parties property -which they do not claim.
    
       It appeared upon the trial that plaintiffs desire to be relieved from responsibility as trustees of the school fund, and have arranged with the Attorney General that the fund shall be paid over to the supervisor of the town of North Salem and the district superintendent of schools of the supervisory district in which said town is located, pursuant to article 19 of the Education Law; and I am requested to order judgment accordingly.^ I do not question the wisdom and propriety of this course, but I find nothing in the order of reference authorizing me to deal with the subject. It is not referred to in the pleadings, and my jurisdiction as referee is limited to the determination of the issues in the action.
    Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.
    C. H. Briscoe, of New York City, for appellants.
    H. W. Taft and R. P. Beyer, both of New York City, for respondents.
   PER CURIAM.

Judgment affirmed, with costs, on the opinion of the referee. Order filed.  