
    The Trustees of the Sailors' Snug Harbor in the City of New York et al., Respondents, v. Thomas Carmody, as Attorney-General of the State of New York, Appellant.
    
      (Court of Appeals,
    
    
      May 5, 1914.)
    Charitable Trusts—Construction and Application of Statute (L. 1893, ch. 701, as Amd. by L. 1901, ch. 291) Restoring the Common-law Rule of Charitable Trusts—Provisions of Will Establishing Charitable Trusts—When Trustees Thereof- Entitled to Advice and Direction of Supreme Court in Administration of such Trust.
    1. In construing chapter 701 of the Laws of 1893, the first section of which is substantially re-enacted- by section 12 of the Personal Property Law and section 113 of the Real Property Law, this court has held that the legislature intended thereby to restore the law of charitable trusts as declared in the case of Williams v. Williams (8 N. Y. 525), which holds that the law of charitable uses as recognized in England prior to the Revolution was in force in- this State.
    2. Section 2 of that act, as amended by chapter 291 of the Laws of 1901, provides that the Supreme Court shall have control over gifts, grants, bequests and devises in all cases provided- for by the act, and whenever it shall appear to the court that circumstances have so changed since the execution of an instrument containing a gift, grant, bequest or devise to religious, educational, charitable or -benevolent uses as to render impracticable or impossible a literal compliance with the terms of such instrument, the court may, upon the application •of the trustee or of the person or corporation having the custody of the property, and upon such notice as the court shall direct, make an order directing that such gift, grant, bequest or devise shall be administered or expended in such manner as in the judgment of the court will most effectually accomplish the general purpose of the instrument, without regard to and free from any specific restriction, limitation or direction contained therein. The attorney-general shall represent the beneficiaries in all such cases, and it shall be his duty to enforce such trusts by proper proceedings in the court.
    3. The will of respondents’ testator was executed and admitted to probate upwards of one hundred years ago, and its validity was recognized by the legislature by statutes enacted for the purpose of carrying its provisions into effect; under such legislative recognition and supported by a decision of the Supreme Court of the United States holding the devise therein for charitable purposes to be valid, the corporation and trustees named in the will, and their successors, have ever since that time been engaged in carrying out the intention expressed by the testator. The complaint in this action contains allegations tending to show that the devisees of the trust cannot literally comply with the terms of the will. The advice and direction of the court is now sought in practically the same manner in which their administration of the trust was directed by the Court of Chancery under a statute enacted in 1828. Held, that under this statute the Supreme Court is authorized to make a decree in this action in which the attorney-general is defendant, directing the trustees in the administration of the trust in such manner as will more effectually accomplish the intention of the testator.
    Trustees of Sailors’ Snug Harbor v. Carmody, 158 App. Div. 738, affirmed.
    (Argued March 5, 1914; decided May 5, 1914.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 11, 1913, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint and overruled said demurrer.
    The following question was certified: “ Does the complaint state facts sufficient to constitute a cause of action ? ”
    
      Thomas Carmody, Attorney-General (Henry Selden Bacon of counsel), for appellant.
    Whether the devise be regarded as originally valid under the law existing at the time of the testator’s death, or as validated by the statute of 1806, its unquestioned validity did not carry with it the result of subjecting the property forever to the whole law of charitable trusts. (Holland v. Alcock, 108 N. Y. 312; Tilden v. Greene, 130 N. Y. 29; Burrell v. Boardman, 43 N. Y. 254; People v. Powers, 147 N. Y. 104; Beekman v. Bonsor, 23 N. Y. 298.) In the absence of the continuance of the old law of charitable trusts by its application to this case only, and without consideration of the Tilden Act, the rule of cy pres cannot be applied. (Holland v. Alcock, 108 N. Y. 337.) Under the rule existing before the passage of the Tilden Act there was not merely no jurisdiction but no law under which relief could be granted in this case. (Levy v. Levy, 33 N. Y. 97; Brigham v. P. B. B. Hospital, 134 Fed. Rep. 513; Wetmore v. Parker, 52 N. Y. 450; Chipman v. Montgomery, 63 N. Y. 221; Clay v. Gurley, 62 Ala. 14; Vaccaro v. Cicalla, 89 Tenn. 63; Griggs v. Veghte, 47 N. J. Eq. 179; Merlin v. Blagrave, 25 Beav. 139; Vanness v. Jacobus, 17 N. J. Eq. 153.)
    Lewis L. Delafield, for respondents.
    The will of Robert Richard Randall created a valid charitable use and was efficient to vest the legal title of his residuary estate in the trustees designated by the will charged with such charitable use, but subject, to the executory devise by which, in the event that the trustees designated by the will should be incorporated, the legal title, affected by such charitable use, was to be divested in favor of such corporation. (Inglis v. Sailors’ Snug Harbor, 3 Pet. 99; Russell v. Allen, 157 U. S. 168.) The plaintiff corporation holds the property which vested in it pursuant to the executory devise contained in the will of Robert Richard Randall upon the charitable uses expressed in’such will. The statute incorporating the trustees designated by the will perpetuated the pre-existing use, but vested the administration thereof in a corporate body of its own creation. Its legal effect was merely to substitute a new trustee. (Inglis v. Sailors’ Snug Harbor, 3 Pet. 99; Tudor on Charities [4th ed.], 185; Perry on Trusts, § 743; Dammert v. Osborn, 140 N. Y. 30; Sir William Reseby v. Farrer, 2 Vern. 414; Atty.-Gen. v. Wyggeston Hospital, 12 Beav. 113; Atty.-Gen. v. Free Grammar School, 23 Beav. 350; Matter of Berkhampstead Free School, 2 Ves. & B. 134; Atty.-Gen. v. St. Cross Hospital, 17 Beav. 435; Matter of Manchester Royal Infirmary, L. R. [43 Ch. Div.] 420; Trustees of Smith Charities v. Inhabitants of Northampton, 10 Allen, 498; Atty.-Gen. v. Newberry Library, 150 Ill. 229; Academy of the Visitation v. Clemens, 50 Mo. 167; Rolfe & Rumford Asylum v. Lefebre, 69 N. H. 238; Dartmouth College v. Woodward, 4 Wheat. 518.) It lies within the inherent power of the Supreme Court to entertain jurisdiction of this action. Moreover, as to this particular charitable use, jurisdiction is also conferred by necessary implication from the terms of the statute incorporating the trustees. (L. 1806, ch. 4; Williams v. Williams, 8 N. Y. 525,. 548; Owens v. Missionary Soc., 14 N. Y. 380; Beekman v. Bonsor, 23 N. Y. 298; Holland v. Alcock, 108 N. Y. 312; Vidal v. Girard, 2 How. Pr. 127; Perin v. Carey, 24 How. 465; Ould v. Washington Hospital, 95 U. S. 303; Russell v. Allen, 107 U. S. 163.) The so-called Tilden Act of 1893 (L. 1893, ch. 701) as subsequently amended (L. 1901, ch. 291) and re-enacted (Real Prop. Law, § 113; Pers. Prop. Law, § 12) restored the law of public charities and vested in the Supreme Court all powers formerly exercised in charity oases by the English chancellor, except, perhaps, in so far as such powers rested upon the royal prerogative.' Such act confers ample jurisdiction upon the Supreme Court to entertain this action. (Allen v. Stevens, 161 N. Y. 122; Matter of Cunningham, 206 N. Y. 601; Matter of Griffin, 167 N. Y. 71; Bowman v. D. & F. M. Society, 182 N. Y. 494.) The jurisdiction of the court over charitable trust may be exercised in an action by its judgment. The permission to. afford certain relief by an order to be made in a special proceeding which is granted by the 2d paragraph of section 113 of the Real Property Law, and by the 2d paragraph of section 12 of the Personal Property Law, is not intended as a restraint upon the jurisdiction of the court. (Matter of Griffin, 167 N. Y. 71; Williams v. Williams, 8 N. Y. 545; Heuser v. Harris, 42 Ill. 425.) As the devisee of lands charged with a charitable use, the plaintiff corporation is entitled both by the common law of charities and by the provisions of the Tilden Act to maintain this suit. It is not essential that such an action shall be instituted by the attorney-general. (Christ’s Hospital v. Atty.-Gen., 5 Hare, 257; Clum Hospital v. Powys, 6 Jur. 252; Howard College v. Society, etc., 3 Gray, 280; Smith Charities v. Northampton, 10 Allen, 498; Weeks v. Hobson, 150 Mass. 377; Matter of Baptist Church, 51 N. H. 424; R. & T. Asylum v. Lefebre, 69 N. H. 238; Academy of Visitation v. Clemens, 50 Mo. 167; Atty.-Gen. v. Newberry Library, 150 Ill. 229.) The Supreme Court, both in the exercise of its ancient jurisdiction over charities and under the power delegated to it by the Tilden Act, may confer authority upon the plaintiff corporation to sell all, or any part, of the real estate devised to it by the Randall will. (Ashton’s Charity, 22 Beav. 288; Parke’s Charity, 12 Sim. 329; Matter of Overseers of Ecclesall, 16 Beav. 297; Atty.-Gen. v. Archbishop of York, 17 Beav. 495; Matter of Colston’s Hospital, 27 Beav. 16; Matter of North Shields Old Meeting House, 7 W. R. 541; Atty.-Gen. v. Warren, 2 Swanst. 291; Atty.-Gen. v. Kerr, 2 Beav. 420; Atty.-Gen. v. South Sea Co., 4 Beav. 453; Stanley v. Colt, 5 Wall. 119; Ould v. Washington Hospital, 95 U. S. 303; Jones v. Habersham, 107 U. S. 174; Odell v. Odell, 10 Allen, 1; Weeks v. Hobson, 150 Mass. 377; Amory v. Atty.-Gen., 179 Mass. 89; Lackland v. Walker, 151 Mo. 210; Brown v. Meeting St. Bapt. Socy., 9 R. I. 177; Academy of Visitation v. Clemens, 50 Mo. 167; R. & R. Asylum v. Lefebre, 69 N. H. 238.) The attorney-general represented the crown, and he now represents the State, in cases of charitable uses, and, both by common law and under the Tilden Act, he is properly made a party as representing the interests of the State. (Williams v. Williams, 8 N. Y. 553; Wellbeloved v. Jones, 1 Sim. & S. 40; Christ’s Hospital v. Atty.-Gen., 5 Hare, 257; Clum Hospital v. Powys, 6 Jur. 252; Corporation, etc., v. Mose, 9 Sim. 610; Harvard College v. Society, etc., 3 Gray, 280; Lang v. Purves, 8 Jur. [N. S.] 523; Newberry v. Blatchford, 106 Ill. 584; Atty.-Gen. v. Newberry Library, 150 Ill. 229; Jackson v. Phillips, 14 Allen, 539.)
   Hogan, J.

The complaint in this action is voluminous, covering thirty-five pages of the record. A determination of the sufficiency of the same does not require an analysis of each paragraph, and reference will be made to the same only so far as necessary to outline the cause of action.

Robert Richard Randall died in the city of Hew York on or about January 5th, 1801, leaving a last will and testament which: „was duly admitted to probate July 10th, 1801.

By the terms of the sixth elausé of said will all of the rest, residue and remainder of the estate of the decedent, both real and personal, was devised and bequeathed to the chancellor of the State of Hew York and other officials named therein, and their successors in office forever, to, for and upon the uses, trusts, intents and purposes, and subject to the directions and appointments mentioned therein, out of the rents, issues and profits of the said real and personal estate to erect and build upon some eligible part of the land upon which the testator resided an asylum or marine hospital to be called “ The Sailors’ Snug Harbor ” for the purpose of maintaining and supporting aged, decrepit and worn-out sailors. The testator declared his intention that the institution directed to be created should be perpetual; that the officers named therein and their successors should forever continue to have the superintendence of the same, and be the governors thereof; that it was his will and desire that if his intention could not legally be carried out without an act of the Legislature., that the parties named as trustees in the will should apply for such an act of the legislature to incorporate themselves for the purposes specified.

The testator further declared: “ And I do further declare it to be (my) will and intention that the said rest, residue, and remainder of my real and personal estate should be, at all events, applied for the uses and purposes above set forth; and that it is my desire that all courts of law and equity will so construe this, my said Will, as to -have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, possess or enjoy my property, except in the manner and for the uses hereinabove specified.”

The testator left personal property and real estate in the State of Hew York. The trustees named in the will and their successors in office were designated by the testator as executors thereof. Pursuant to the directions contained therein, the executors and trustees made application to the legislature of the State of Hew York, and in 1806 did procure the enactment of chapter 4 of the Laws of 1806, which by its preamble referred to the last will and testament of Robert Richard Randall and the provisions thereof relating to “ The Sailors’ Snug Harbor,” and provided that the officers nominated in the will as trustees and their successors were constituted a body corporate in fact and in name under the name and style of the “ Trustees of the Sailors’ Snug Harbor of the City of Hew York,” and by that name they and their successors should have continued succession, be capable in law of suing and being sued, of holding and disposing of the real and personal estate devised and bequeathed to them under the will of Mr. Randall, which was declared to be vested in them and their successors for the purposes therein expressed according to the intentions of the will, and should be capable of purchasing, holding and conveying any other real and personal estate for the use and benefit of the corporation in such manner as they, or a majority of them, deemed would be most conducive to the interests of the institution; to make rules and regulations for the government of the corporation and the management of its business. The legislature further declared that the statute should be taken to be a public act, and be construed in all courts and places benignly and favorably for the purposes therein intended.

By chapter 69 of the Laws of 1814 the act of 1806 was amended so as to define the personnel of some of the individuals named as trustees and executors in said will and in the act of 1806. In 1828 the legislature enacted chapter 276 of the laws of that year, upon the petition of the trustees, which act had reference to their authority over the real estate and the purchase of additional lands for the erection of the asylum.

In 1830 the trustees had in addition to the real estate about one hundred thousand dollars, the result of the accumulation of rents of the real estate, and in May, 1831, the trustees, having first obtained the approbation of the Court of Chancery (Laws of 1828, chapter 276), purchased land on Staten Island, on which they proceeded to erect the asylum and marine hospital for the purposes specified in the will of Mr. Randall. The asylum was opened in 1833, and thereafter until 1894, with like approbation, the trustees purchased additional lands, and erected buildings ' thereon, at a cost of upwards of one million two hundred fifty thousand dollars. In 1910 the number of aged, decrepit and worn-out sailors, inmates of the institution, was about eight hundred and forty.

A portion of the real estate left by the decedent consisted of land in the fifteenth ward of the city of New York, which the trusees in or about the year 1830 caused to be divided into two hundred and fifty-three lots, which were leased upon ground leases for a period of twenty-one years, with option of renewal of rental, and upon which private residences were erected.

In or about 1880 the land became valuable for business purposes, and ceased to be desirable for residential purposes. Since 1890 the trustees have endeavored to repossess themselves of desirable plots of the land by extinguishing ground leases, and such land thus repossessed by them has advantageously been improved by the erection of business buildings, but the moneys in their possession are not sufficient to enable them to erect adequate business blocks on all of the property repossessed by them, and the property still used for residential purposes cannot be rented upon advantageous terms. ' 1

The complaint alleges “ that unless portions of the said tract shall be sold or mortgaged and the proceeds either shall be applied to the extinguishment of outstanding ground leases, so> far as may be necessary, and the erection of large modern business buildings on portions of the said tract, there is a likelihood that the property in the possession of the Trustees will be reduced greatly in value, thereby tending to impair the usefulness and scope of the aforesaid charity and thus to defeat the intention of the founder thereof.”

The financial statement of the trustees as of January 1st, 1911, is set forth in the complaint. • Other and further allegations are contained in the complaint having reference to the property, the funds and management of the same under the charge of the trustees, and the prayer for relief is as follows:

“ First. That by a judgment to be made herein it may be judicially determined and decreed whether the plaintiffs, or any of the plaintiffs, have power and authority to sell or to mortgage all, or any part, of the real estate in the First and Fifteenth Wards of the City of Hew York, hereinbefore referred to, of which the aforesaid Robert Richard Randall died seized; and that if it be found that power to sell the real estate or any part thereof exists, or that such power may by the order or judgment of this Court be conferred upon the plaintiffs, that the Court shall determine, or shall permit the plaintiffs to determine, what part, if any, of said real estate should be sold, and that it will thereupon by its order or judgment, or by an order or orders to be made at the foot of its judgment, sanction, permit or direct a sale of such real estate, or of such portions of said real estate, if any, as it shall be determined should be sold.
“ Second. That by- the judgment to be made herein the plaintiffs "be instructed whether they may lawfully employ the personal property in their possession in purchasing improvements erected by their lessees upon the household properties at the expiration of leases, or in purchasing outstanding leases and leasehold estates of their properties; or in the erection of buildings for investment purposes.
Third. That by the judgment to be made herein the plaintiffs may be instructed as to their powers and duties under the Will of the said Robert Richard Randall, and the statutes hereinbefore referred to, in respect, to all of the remaining questions referred to in the foregoing complaint, and in respect of any and all the other questions with reference to which it shall appear that the plaintiffs require, or ought to act, under the instruction of the Court; and,
“ Fourth. That the plaintiffs may have such other and further or different relief in the premises as may be agreeable to equity, and that their costs of this action may be awarded and paid as the Court shall direct.”

To the complaint the attorney-general, who, was the sole defendant, demurred upon the ground that the complaint did not state a cause of action. The demurrer was sustained at Special Term, Hr. Justice Page writing the opinion. Upon appeal to the Appellate Division the interlocutory judgment of the Supreme Court was unanimously reversed and demurrer overruled. An exhaustive and interesting opinion was written by Mr. Justice Hotchkiss and a concurring opinion by Presiding Justice Ingraham.

After the death of Robert Richard Randall, one Inglis commenced an action in the United States Circuit Court against the “ Trustees of the Sailors’ Snug Harbor,” which action was brought to trial in October, 1827. Upon the trial of the action the judges of the Circuit Court were opposed in opinion upon certain points, which were certified by the judges of the Circuit Court of the Supreme Court of the United States. One of the questions certified was:

“ 5. Whether the devise in the will of Robert Richard Randall of the lands in question, is a valid devise, so as to divest the heir-at-law of his legal estate, or 'to affect the lands in his hands with a trust ? ”

After due consideration by the Supreme Court of the United States that court certified to the judges of the Circuit Court of the United States for the Southern District of Hew York in answer thereto:

“ 5. The devise in the Will of Robert Richard Randall, of the lands in question is a valid devise, so as to divest the heir-at-law of his legal estate.” (Inglis v. Trustees of Sailors’ Snug Harbour, 3 Peters, 99, 189.)

The will■ in question was executed, and admitted to probate in this State upwards of one hundred years ago, and the beneficence of the testator was recognized by the legislature of this State by the several statutes to which reference has been made; under such legislative recognition, and supported by the decision of the Supreme Court of the United States, the corporation and trustees named in the will, and their successors, have for a like period of time been engaged in carrying out the intention expressed by the testator in his will. The advice and direction of the court as to the administration of the affairs committed to the trustees is sought in this action practically in the same manner in which their administration of the trust was directed under the statute of 1828 by the Court of Chancery.

The exhaustive research of Mr. Justice Hotchkiss in his ojúnion upon the law of charitable trusts renders it unnecessary to review the numerous decisions of the courts prior to the enactment of the Tilden Act, so called, now section 12, Personal Property Law (Cons. Laws, ch. 41), and section 113, Real Property Law (Cons. Laws, ch. 50). The several cases in this court were carefully collated and considered by Judge Rapallo in Holland v. Alcock (108 N. Y. 312), where it was held that the English doctrine of trusts for charitable purposes, as distinguished from private trusts governed by the general rules of law, and the doctrine of cy pres did not prevail in this State. That decision was followed by the courts of this State resulting in the failure of numerous trusts for charitable purposes, including a trust under the will of Samuel J. Tilden, deceased. (Tilden v. Green, 130 N. Y. 29, decided in October, 1891.)

Early after the decision of that case the legislature of this State enacted chapter 701 of the Laws of 1893, the.first section of which is substantially contained in the language of section 12 of the Personal Property Law and section 113 of the Real Property Law.

Section 2 of the act of 1893 provided:

§ 2. The Supreme Court shall have control over gifts, grants, bequests and devises in all cases provided for by section one of this act. The attorney-general shall represent the beneficiaries in all such cases and it shall be his duty to enforce such trust by proper proceedings in the court.”

In construing the statute, this court held that the legislature intended by that law to restore the law of charitable trusts as declared in the case of Williams v. Williams (8 N. Y. 525), which holds that the law of charitable uses as recognized in England prior to the Revolution was in force in this State. (Allen v. Stevens, 161 N. Y. 122; Matter of Griffin, 167 N. Y. 71; Bowman v. D. & F. M. Society, 182 N. Y. 494; Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, 206 N. Y. 601.)

The decision of the United States court in the Inglis case, and the several decisions of this court referred to subsequent to the enactment of the “ Tilden Act ” so called, renders inevitable a conclusion that under the will of Mr. Randall a valid and enforceable trust was created, and the property bequeathed and devised therein became vested in the trustees named in said will and their successors.

Section 2 of the statute of 1893 was amended by chapter 291 of the Laws of 1901 so as to read as follows:

“ § 2. The Supreme Court shall have control over gifts, grants, bequests and devises in all cases provided for by section one of this act and, whenever it shall appear to the court that circumstances have so changed since the execution of an instrument containing a gift, grant, bequest or devise to religious, educational, charitable or benevolent uses as to render impracticable or impossible a literal compliance with the terms of such instrument, the court may, upon the application of the trustee or of the person or corporation having the custody of the property, and upon such notice as the court shall direct, make an order directing that such gift, grant, bequest or devise shall be administered or expended in such manner as in the judgment of the court will most effectually accomplish the general purpose of the instrument, without regard to and free from any specific restriction, limitation of direction contained therein; provided, however, that no such order shall be made until the expiration of at least twenty-five years after the execution of the instrument or without the consent of the donor or grantor of the property, if he be living. The attorney-general shall represent the beneficiaries in all such, cases, and it shall he his duty to enforce such trusts by proper proceedings in the court.”

By chapter 144, Laws of 1909, section 2 was again amended by the elimination therefrom of the words that no such .order shall be made until the expiration of at least twenty-five years after the execution of the instrument, or ” and when the statute was embodied in the Consolidated Laws it became subdivision 2 and subdivision 3 of section 12, Personal Property Law, and the same subdivisions of section 113, Real Property Law.

.Evidently it was the intention of the legislature by the amendment to section 2, above referred to, to extend the jurisdiction of the Supreme Court to the administration of a trust to the cases provided for in section 12 of the Personal Property Law and section 113 of the Real Property Law.

The complaint in this action contains allegations tending to show that the devisee of the trust cannot literally comply with the terms of the will of Mr. Randall, and under the statute above referred to the Supreme Court is authorized to make a decree directing the trustees in the administration of the trust and in such manner as will more effectually accomplish the intention of the testator.

While the statute imposes upon the attorney-general the obligation to represent the beneficiaries and to enforce the trust by proper proceedings in the court and might be construed as contemplating an application to that officer to take the initiative in securing an adjudication by the courts, it is still subject to a construction that he should represent the beneficiaries, parties to the proceeding, which as shown in this case number upwards of eight hundred and the personnel of which is constantly changing. The opinion of Mr. Justice Hotchkiss in the Appellate Division upon that branch of the case established the propriety of naming the attorney-general as a party defendant and in his conclusion we concur.

We do not undertake to prescribe a rule of conduct for the guidance of the Supreme Court upon the hearing of the case. The judgment of the justice must of necessity be exercised after the development of the facts, and the extent to which his judgment shall be exercised will be dependent thereon. We merely hold that the complaint does contain some allegations of fact proper to be submitted to the court for its direction to the trustees.

The order of the Appellate Division must, therefore, be affirmed, and the question certified answered in the affirmative.

Willard Bartlett, Ch. J., Werner, Hiscock, Chase, Collin and Miller, JJ., concur.

Order affirmed, without costs.

NOTE ON CHARITABLE TRUSTS.

Devise in trust to governor for charity held valid. (In re New York Prot. Epis. Sch., 31 N. Y. 574, 589.)

Bequest to church to buy coal for their poor does not create trust. (Bird v. Merklee, 144 N. Y. 544, 548.)

Trust of New York charitable societies -held void for indefiniteness. (Fairchilds v. Edson, 154 N. Y. 199, 211.)

Bequest to religious or charitable corporations held not trust. (Bird v. Merklee, 144 N. Y. 544, 550.)

A provision in a will hy which a testatrix devises to a town in Massachusetts a certain sum of money in trust, the income to be used for the benefit of the poor of said town, is valid. (Matter of Rasquin, Mills Surr., vol. 11, p. 533.)

The principle is now firmly established that if a charitable purpose pervades and dominates a bequest the scheme and purpose of the testator should be upheld in the courts.

A bequest to the cause of charity, to be expended by the executor at such time and in such amounts as he may “ elect to disperse to worthy individual eases and to various institutions dedicated to the cause and alleviation of human physical suffering,” calling the earnest attention of the executor to the dire necessity of inadequately endowed hospitals and institutions of like character, but earnestly and heartily disapproving of his rendering any financial assistance to institutions engaged in the practice of establishing and maintaining foreign missions is valid. (Day v. Day, Mills Surr., vol. 10, p. 363.)

A bequest to trustees nominated by a will to be applied in their best judgment and discretion to such charitable and benevolent associations and institutions of learning as the trustees select is now valid as a charitable use. (Matter of Cuningham, Mills Surr., vol. 11, p. 158.)  