
    Ransom Fralick, as President of The Progressive Spiritualists' Association of Waverly, Tioga County, New York, Respondent, v. Fred E. Lyford and Walter D. Park, as Executors, etc., of James R. Park, Late of the Village of Waverly, Tioga County, New York, Appellants.
    
    
      A legacy to a voluntary unincorporated religious association is void — when it cannot talcs as a trustee under chapter 701 of the Laws of 1893.
    James R. Park, by his will, bequeathed §5,000 to “the Progressive Spiritual Society of Waverly, N. Y., to be used by the said society in such manner as it may deem most expedient for the development and advancement of spiritualism at Freeville, Tompkins County, N. Y.”
    The testator, by the use of the words, “the Progressive Spiritual Society,of Waverly, N. Y.,” intended to designate the Progressive Spiritualists’ Association of Waverly, Tioga county, N. Y. The latter body is a voluntary unincorporated religious association consisting of seven or more persons which is a part of the National Spiritualists’ Association of the United States, a corporation organized under the laws of the District of Columbia.
    There is also in existence an organization known as the Central New York Spiritual Association, which organization was, at the time of the execution of the will, an unincorporated society, but which, since the making of the will, has been organized as a corporation under the laws of New York. Such corporation holds meetings at Freeville regularly every year and the testator had frequently attended such meetings and was a stockholder thereof.
    In an action brought by the Progressive Spiritualists’ Association of Waverly,
    ' Tioga county, N. Y., through its president, against the executors of the will, to recover the legacy referred to, it was
    
      Meld, that a judgment in favor of the plaintiff in such action should be reversed;
    That the bequest could not be sustained as an absolute one, because the beneficiary, being an unincorporated voluntary association, was incapable of taking such a bequest;
    That the bequest did not create a trust, and could not, therefore, be sustained under chapter 701 of the Laws of 1893, which provides that a trust for a charitable use shall not fail because of the uncertainty of the beneficiaries or because of the failure to designate a trustee; ,
    That chapter 701 of the Laws of 1893 did not change the rule of law which declares an unincorporated religious or charitable society incapable of taking á bequest to it, either absolutely or as trustee.
    
      Semble (per Smith and Chase, JJ.), that, under chapter 701 of the Laws of 1893, the legacy created a trust for the purpose of sustaining the spiritualistic meetings held at Freeville under the auspices of the Central New York Spiritual Association, and that, while the Progressive Spiritualists’ Association- of Waverly, Tioga county, N. Y., was not authorized to. act as trustee, the trust, although indefinite, should, nevertheless, be executed under the supervision of the court, by a trustee to be appointed.
    Appeal by the defendants, Fred E. Lyfordand another, as executors, etc., of James R. Park, late of the village of Waverly, Tioga county, In ew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office Qf the clerk of the - county of Tioga on the 24th day of December, 1904, upon the decision of the court rendered after a trial at the Tioga Trial Term, a jury having been waived.
    Under a codicil to the will of the -testator, James R. Park, he •bequeathed $5,000 to “ the Progressive Spiritual Society of Waverly, R. Y., to be used by the said society in such manner as it may deem most expedient for the development and advancement of spiritualism at Freeville, Tompkins County, U. Y-” He left a sufficient estate to. pay all his debts and all the legacies under his will, including the one in question-. The executors having refused to. pay such legacy of $5,000, and more than a.year having elapsed since letters testamentary were issued to them, this action was brought to recover the amount thereof, with interest. The plaintiff has had judgment for that amount and the defendants appeal, Ever since May 14,1895, the Progressive Spiritualists’ Association of Waverly, Tioga county, R. Y., has been a voluntary unincorporated religions association consisting of seven or more persons, and having its principal office or place of business and place of meeting at Waverly, R. Y., and plaintiff is its president. He brings this action in his name as such president against the executors of the will. It is conceded that the testator, by the use of the words “ the Progressive Spiritual Society of Waverly, R. Y.,” in his will intended to designate the association of. which the plaintiff is president. That association received a charter from the Rational Spiritualists’ Association of the United States in 1896, and said national association was and is a corporation organized under the laws of the District of Columbia. Under said •charter the plaintiff’s association is constituted a part of said national association and is invested with local- jurisdiction at Waverly, Y. Y., and is “ to be composed of lay members' of itself and associated for the purpose of conducting local meetings and promulgating the cause of spiritualism,” and is also invested with the powers and privileges accorded like associations under the constitution of the Yational Spiritualists’ Association. Such constitution provides that the trustees shall also be empowered to collect 'and accept funds and bequests in the name of the association and empowers the association to receive donations, contributions and bequests.
    There is also a'Central Yew York Spiritual Association, which at the time of the execution of the will Was an unincorporated society, but which, since the making of said will and prior to the testator’s death, has been organized as a corporation under the laws of Yew York, and which has for many years maintained a camp meeting ground and auditorium at Freeville, Tompkins county, and held meetings there regularly every year. The testator frequently attended such meetings and was a stockholder in such corporation, ■ and there is no other association or organization of spiritualists at Freeville, nor any other organization carrying on spiritualistic meetings or work there.
    
      Frederick Collin, for the appellants.
    
      Louis L. Waters, for the respondent.
   Chester, J.:

The respondent- seeks to sustain the judgment appealed from by invoking thé aid of chapter 701 of the Laws of 1893, but in my opinion that law does not apply to the facts shown here, for the reasons that the bequest appears on its face' to be an absolute one, and 'no trust is attempted to be created by the provision in question. The trial court has, however, found that a trust was created as to the legacy, and that the association of which the plaintiff is president has full legal power to take and hold the same either absolutely or in trust, and has, therefore, awarded the plaintiff a money judgment for the amount thereof. The act of 1893 is one to regulate gifts for charitable purposes, and clearly relates only to gifts in trust for such purposes. The legacy is not expressed to be in trust. It is given directly to the “ Progressive Spiritual Society of Waverly, N. Y.” The parties agree that the testator intended by this language to designate the association of which the plaintiff is president. It is not, however, named as a trustee for any one or for any purpose. The legacy is expressly stated to be used in such manner as the society may deem expedient. It is true that it is stated to be given to it “for the development and advancement of spiritualism at Freeville,” but no persons or beneficiaries are named among whom this 'development or advancement is to be made.. At most it is a gift for a cause, without naming any person or body as cestui que trust who is to be the recipient of the benefits sought to be given. There is nothing in the will showing that the testator desired the plaintiff's association to use the legacy through the agency or for the benefit of the Central Hew York Spiritual Association, of which he was a stockholder and which has heretofore maintained a camp .meeting and held meetings at Freeville. On the contrary, that association is not mentioned in the will, and the legacy, if valid, could be applied, if the plaintiff’s association deemed expedient, in any other way, or through any other agency, for the promotion of spiritualism there. The will provides no method of applying either the principal or the income of the fund for the development and advancement of spiritualism at Freeville, except, that society or association may apply it for that purpose “ in such manner as it may deem most expedient.”

It seems to me that under the authorities such a bequest does not create a trust, and if valid must be held to be intended as an absolute one. ’ (See Matter of Griffin, 167 N. Y. 71; Bird v. Merklee, 144 id. 544; Wetmore v. Parker, 52 id. 450.)

If the gift was intended to be an absolute one to the plaintiff’s society, the act of 1893 cannot be invoked to save it, because, as has been stated, that act applies only to gifts in trust for the purposes specified in the law.

There is ’still another reason why this judgment cannot be sustained. -

The society of which the .plaintiff is president is an unincorporated voluntary association or society, and, therefore, is incapable of taking a direct bequest to it. (White v. Howard, 46 N. Y. 144 ; Sherwood v. American Bible Society, 1 Keyes, 561; Fairchild v. Edson, 154 N. Y. 199; Murray v. Miller, 178 id. 316.)

No authority has been called to my attention holding directly that the act of 1893 changed the rule laid down in the cases last above cited and in many kindred cases, except Matter of Fitzsimmons (29 Misc. Rep. 731), but in that case the learned surrogate contented himself simply with the expression of his opinion that under the provisions of the law of 1893 the fact that a religious or charitable society was unincorporated did not prohibit it from taking an absolute bequest to it. It seems to me. that there is nothing in the statute that warrants the conclusion he reached. The statute saves a gift, grant, bequest or devise for religious, educational, charitable or benevolent uses from being invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries, and provides that if in the instrument creating the gift, grant, bequest or devise there is a trustee named to execute the same the legal title to the property shall vest in such trustee, and that if no person be named as trustee, then the title shall vest in the Supreme Court; but nowhere in the statute or in chapter 291 of the Laws of. 1901, which is the only amendment thereto, does it assume to give an unincorporated association power to take or hold such a bequest either absolutely or as a trustee'. For this reason it seems clear that the long dine of decisions made, before the enactment of the statute are still to be given full force and ' under which the plaintiff’s society is incapable of taking the legacy in question.

» Even if I am wrong in my conclusion that the legacy in question is not given in trust, and even if it could properly be held that by the will the legacy is given to the plaintiff’s society in trust for the benefit of some unnamed persons at Freeville, among whom the testator desired to promote the cause of spiritualism, that society being an unincorporated body is incapable under the law of acting as such trustee. Nor does its charter assume to give it any power to do so. Neither the society, therefore, nor the plaintiff as its president can maintain this action to compel the payment of the amount of the legacy.

The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.

Parker, P. J., and Houghton, J., concurred ; Smith, J., "concurred in result"in opinion in which Chase, J., concurred.

Smith, J. (concurring):

Under the liberal interpretation of the act of 1893 which the. courts have adopted, I think the will contains a trust for the purpose of sustaining the spiritualistic .meetings held at Freeville .under the auspices of the Central New York Spiritual Association. While I agree that the Progressive Spiritualists’ Association of Waverly, Tioga county, N. Y., is not authorized to act as trustee under the act mentioned, the trust, though indefinite, should nevertheless be executed under the supervision of the court by a trustee to be appointed.

Chase, J., concurred!

Judgment reversed and new trial granted, with costs to appellants ■to abide event.  