
    In the Matter of the Probate of the Last Will and Testament of Johanna Cooney, Deceased. James Lambert, Appellant; St. Bernard’s Seminary and Others, Respondents.
    Fourth Department,
    May 2, 1906.
    Will — bequest to charitable corporation made less than two months prior to testator’s death — when same is void — trust, when passive.
    A bequest in trust to the use of St. Bernard’s Seminary of the town of Greece and St. Ann’s Home for the Aged of Rochester for saying masses, mads less than two months prior to the death of the testatrix, is invalid by virtue of Laws of 1848, chapter 319, section 6, as amended by Laws of 1903, chapter 623.
    Although said statute applies only to benevolent corporations formed thereunder, St. Bernard’s Seminary is avowedly incorporated under said act and there was no other act extant at the time of the incorporation of St. Ann’s Home which allowed the formation of a corporation for the purposes of that institution.
    Although the bequest was made to individuals named as trustees, it was “for the use and benefit ’’ of said institutions equally and hence cannot be said to be a gift to natural persons rather than to charitable corporations.
    Moreover, as no active duty was imposed upon the trustees, the trust was passive and vested no title in the trustees, but the estate passed directly-to the devisee by virtue of the Real Property Law, sections 73 and 77.
    Appeal by James Lambert, sole heir at law of Johanna Cooney,, deceased, from so much of a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate^ Court on the 21st day of December, 1905, as determines that the 5th clause of the will of said Johanna Cooney is valid, and overrules and dismisses upon the merits the objections to the probate of said will.
    
      Ernest B. Millard, for the appellant.
    
      John B. Kiley, for the respondents.
   Spring, J.:

Johanna Cooney, a resident of the city of Rochester, executed her last will and testament in proper form on the 26th of July, 1905, and died five days later, leaving her surviving no husband or lineal descendant but the appellant, her brother, and a nephew as her only next of kin. The will, after three general legacies aggregating $300, proceeds as follows: “ Fifth. I give, bequeath and devise the rest, residue and remainder of my property to Rt. Rev. Thomas F. Hickey and Bernard O’Rilly, of Rochester, N. Y., in trust, however, for the use and benefit of St. Bernard’s Seminary of the town of Greece, and St. Anne’s Home for the Aged of Rochester, N. Y., for the purpose of having masses and prayers read and said for the benefit of my soul, each institution to them equally."

It then names Bishop Hickey and Mr. O’BeiHy trustees and executors. ..-The will was presented for probate-by the executor O’Beilly, and an answer was filed whereby the appellant put- in issue the -validity, of paragraph 5 Of the will. (Code Civ. Proc. § 2624.) The testatrixfieft only personal property^

Inasmuch ás the testatrix died within two months after the .execution of the will, it is contended that the 5th provision is within the condemnation of section 6 of chapter 319 of the Laws of 1-848 (as amd. by Laws-of 1903, chap. 623). The act' nfentioned was- a general act providing for the incorporation of benevolent, charitable, scientific and missionary societies;. and by section 6 (as amd. supra) no devise or bequest to a corporation “formed under this act * * * shall be valid' in any will which shall not have been made and executed at least two months before, the death of the testator.” All of the act has been repealed except section 6,. which is still in force. (Matter of Lampson, 161 N. Y. 511, 516 et seq. ; Memb. Corp. Law [Laws of 1895, chap. 559], § 147; Laws of 1903, chap. 623.)

It will be' noted that the limitation only affects corporations organized under this •aet, and this limitation has been recognized by authority. (Stephenson v. Short, 92 N. Y. 433 ; Matter of Lampson, 161 id. 511, 516 et seq.; Hollis v. Drew Theological Seminary, 95 id. 166.)

St. Bernard’s Seminary was organized under this act. The certificate of incorporation so recites. St. Ann’s Home for the Aged" was incorporated in February, 1874, as the Eochester Home of Industry: In .1904, by an order of the Supreme Court, the present name was adopted. The purpose of the corporation is- set forth in the certificate of incorporation as follows: “ That the object and business of such society is the protection of young females and their instruction in the ordinary branches of education, in music, and in all the trades and occupations in which women are employed, as well as in all branches of domestic economy, to the end that they may be and become useful and virtuous women.”

The proof shows that old ladies are provided and cared for in the home; that prayers are said for its benefactors; that testatrix, at the time of her death and for the fourteen months preceding, was an inmate of the institution, and daily took part in the saying of the prayers, so- that the original object of the incorporation has been, in a measure, departed from.

The certificate does not state under what act it was incorporated and there is no direct proof in the' record to enlighten us on the subject. The surrogate was asked to find as a fact that it was organized under chapter 319 of the Laws of 1848, but he declined to do so. The form of the certificate comports closely with the requirements contained in section 1 of that act (as amd. by Laws of 1872, chap. 649). That was the general act under which corporations of this character for many years were organized. While many special acts were passed to enable corporations to be formed, there is no^claim that this corporation was created by an act of that kind.

We find no general statute authorizing the formation of a corporation with a certificate like the one mentioned, except the act of 1848 referred to. The diligence of counsel has not been able ■to do so. The counsel for the respondents urges that it may have been organized pursuant to chapter 184 of the Laws of 1853. That act provides for the incorporation of colleges aiid academies by the Regents of 'the University. ' Section 10, referred to by counsel, relates to medical colleges, and provides that their trustees must be at least ten in number. • The purpose of that act and the scheme •'for the organization of corporations pursuant to it do not enable this beneficiary to be included within it. The conclusion seems reasonably clear that the Rochester Home of Industry was organized under chapter 319 of the Laws of 1848. It may be upon another trial that proof may be elicited showing that the society was created by virtue of some other act of the Legislature.

It is claimed that the bequest is not to the 'corporations designated, but to the individuals who are to use the fund as trustees for the purpose of procuring masses and prayers to be said for the soul of the testatrix. The language of the bequest seems to contravene-this interpretation. The individuals named take the property in trust '•'for the use and benefit” of- the two institutions, and the bequest is to “ each institution to them, equally.” .

The bequest was intended to be a charitable one for the aid of the two societies and each was charged with the obligation of performing the prescribed religious • service. The trustees were to receive this money, but no active duty was imposed upon them in connection with the fulfillment of the trust, and they were .not charged with the performance of the religious rite which the testatrix intended to couple with the legacy to the two corporations.. The trusteeship, if such it may be dignified, is a passive one with no authority in the trustees to invest the fund and keep it intact or to collect the income or to pay over any portion of it, or the principal, to the two corporate beneficiaries. . ,

Ho kindred question wás decided in Allen v. Stevens (161 N. Y. 122), cited in the brief of respondents’ counsel. In that case the residuary estate was willed to the designated trustees, and they were charged with the duty “of founding, erecting and maintaining Graves Home for the Aged.” The active management of the property was intrusted to the trustees with authority to rent or sell the real property, to employ agentsj etc.' Their custody of the property was complete and their authority in its management unrestricted. The'court held that the beneficiary was indefinite, but the bequest did not fail in any event because of chapter 701 of the Laws of 1893.

By section 73 of the Real Property Law (Laws of 1896, chap. 547) a passive trust vests no title in the trustee. So, by section 77 of that statute, where the trustee is not “ empowered to receive the rents and profits,” no estate vests in him. The estate passes directly to the heirs or devisees, “ subject to the execution of the power.?’ " .

By analogy the present bequest, if valid, would go to the beneficiary accompanied with the responsibility of saying “ masses and •prayers” for,the soul of the testatrix. (Genet v. Hunt, 113 N. Y. 158, 168; Bindrim v. Ullrich, 64 App. Div. 444, 447.)

The decree should be reversed and a new trial ordered in Surrogate’s Court, with the costs and disbursements of both parties on this appeal payable out of the fund. ,

All concurred.

Decree of Surrogate’s Court reversed and new trial ordered in Surrogate’s Court, with costs of botli parties on this appeal payable out of the fund. 
      
       O’Reilly.
     
      
       St. Ann’s.
     