
    In the Matter of the Probate of the Last Will and Testament of Elbert Powell, Late of Nassau County, Deceased. Andrew S. Powell and Others, Appellants; Ambrose G. Whaley and Alanson Van Cott, as Executors of and Trustees under the Will of Elbert Powell, Deceased, and Others, Respondents.
    Second Department,
    March 11, 1910.
    Will—-probate — validity and construction of will — surrogate, may reserve decision—appeal from discretionary order — unincorporated church, named as trustee — gift for charitable usé.
    Notwithstanding that the language of section 2624 of the Code of Civil Procedure requiring the surrogate' to determine the-validity'and construction of a will if put in issue on probate proceedings is mandatory, he may in his discretion reserve the decision of such questions until the determination becomes necessary to a proper disposition of the estate.
    Although an appeal to the Appellate Division from an order of the surrogate lies only when it affects a substantial right, a discretionary order is appealable if the surrogate in exercising his discretion- invaded a substantial right.
    
      Quaire,. as to whether a bequest in trust, income to be applied to the payment of the salary of the minister of a designated church, is equivalent ■ to a trust for religious and charitable uses within the meaning of the statute regulating such gifts.
    
      It seems, that if such gift be deemed.to be for charitable uses, it does not fail by reason of the fact that at the date of the testator’s death the church designated as trustee was not incorporated and had no trustees, for in such case the trust would vest in the Supreme Court.
    A surrogate does not abuse his discretion in refusing to determine the validity of such trust on probate proceedings, but may defer the determination, for the church named as trustee may become incorporated with power to perform the trust duties and should have-an opportunity to assert its rights.
    Appeal by Andrew S. Powell and others from part of a decree of the Surrogate’s Court of the county of ¡Nassau, entered in said Surrogate’s Court on the 15th day of September, 1909, as resettled by an order entered on the 6th day of October, 1909, admitting to probate the will of Elbert Powell, deceased.
    
      Henry L. Maxson, for the appellants.
    
      Qhcwies S. Taber, for the respondents. '
   Burr, J. :

The last will and testament of Elbert Powell was admitted to probate by the Surrogate’s Court of ISTassau county on the 15th day of September, 1909, After directing the. payment of his just debts and funeral expenses, that his name and age be inscribed on the monument in Bethpage Cemetery, and that a suitable marker be procured and erected at his grave, he gives all the rest, residue and remainder of his estate, real and personal, to his executors in trust: “ To convert all of my estate, real and personal, into cash, and. deposit the same in several substantial Savings Banks, and to pay the net income received therefrom unto my niece, Margaret E. Bumstead, for and during the term of her natural life, semi-annually as received by them, but in no event shall she have any part of the principal sum, nor shall she have any power of disposition of said principal.” The will further provides: “Fourth. After the death of said Margaret E. Bumstead I give, devise and bequeath unto my nephew, G-eorge F. Powell, * * * the sum of Five hundred ($500.00) Dollars. Fifth. Then also I give, devise and bequeath unto my nephew, John Oliver Powell, * * * the sum of Five hundred ($500.00) Dollars.” By the 6th, 7th, 8th, 9th, 10th and 11th clauses of liis will testator gives to other nephews and nieces and to a grandnephew the sum of $500 each. The words of disposition in the 6th to 11th clauses, inclusive, are identical with those in the 5th clause above quoted. The language of the 12th clause of the will is as follows: “After the payment of the above legacies, I give, devise and bequeath one-half of all the rest, ■ residue and remainder of my said estate unto the Trustees of the Plain Edge Methodist Episcopal Church, * * * which I direct shall be deposited and kept in some safe savings bank or banks, and the income, interest or dividends which may be earned thereon shall be used to pay the salary of the Minister, who shall preach the Gospel in said Church, from year to year forever, so long as it shall be used as a Methodist Episcopal Church, but no part of said money shall be used to repair or rebuild said church building or for any purpose except as above. The other one-half of the residue of my said estate I give, devise and bequeath unto the Trustees of the Farmingdale Methodist Episcopal Church, * * * which I direct shall be deposited and kept in some safe sayings bank or banks, and the income, interest or dividends which may be earned thereon shall be used to pay the salary of the minister who shall preach the Gospel in said Farmingdale Methodist Episcopal Church, but said income or principal shall not be used for any other purpose, neither building or repairing said, church.” Six of the legatees and next of kin of the testator answered the petition for probate, and in their answer averred': “ That the Trustees .of the Plain Edge Methodist Episcopal Church and the Trustees of the Farmingdale Methodist Episcopal Church, mentioned in the Twelfth' Paragraph of said alleged Will, are not bodies corporate, and that neither of such body of Trustees is authorized by law to accept the bequests made in said Paragraph. That the devises and bequests mentioned in and made by the Twelfth Paragraph of said alleged Will are invalid and illegal. Said legatees first above named hereby give notice to the devisees and' legatees mentioned in said Paragraph Twelfth that the construction and validity of said devises and bequests contained in said Paragraph will be put in issue in this proceeding,” The trustees of the Plain Edge Methodist Episcopal Church and the trustees of the Farmingdale Methodist Episcopal Church appeared by their attorneys upon the hearing. It was admitted and the surrogate has found that at the date of testator’s death the Farmingdale Methodist Episcopal Church was a religious corporation and entitled to take and hold real or personal property, and that the Plain Edge Methodist Episcopal Church was not at that date a body corporate. The learned surrogate held: “ That a judicial construction of the legality and effect of the bequests to the Farmingdale Methodist Episcopal Church, and to the Plain Edge Methodist Episcopal Church contained in Paragraph XII of said Will, is neither necessary or appropriate at this time.” He, therefore, refused to make any decision .respecting the same. The statute relating to the construction of wills in proceedings for the probate thereof is as follows: “ But if a party; expressly puts in issue, before the surrogate, the validity, construction, or effect of any disposition of personal property, contained in the will of a .resident of the State, executed within the State, the surrogate must determine the question, upon rendering a decree.” (Code Civ. Proc. § 2624.) Testator was a resident of this State, and his will was executed within the State. Notwithstanding the mandatory language of this section, it has been held that the surrogate may in his discretion properly reserve or postpone the consideration of such questions until they actually arise and their determination becomes necessary to a proper disposition of the estate. (Matter of Mount, 185 N. Y. 162; Jones v. Hamersley, 4 Dem. 427.) An appeal lies to this court from an order of the Surrogate’s Court only when it affects a substantial right. (Code Civ. Proc. § 2570.) But even when the determination of a surrogate is by statute expressly made to rest in discretion there is a distinction between the exercise of a legal and a purely arbitrary discretion. When it is of the latter character, resulting in a violation of justice, it may become the invasion of a -substantial right, and this court may in such case review his action, but not otherwise. (Matter of Adler, 60 Hun, 481; Matter of Eisner, 6 App. Div. 563 ; Matter of Selleck, 111 N. Y. 284.) In view of the finding as, to the value of the decedent’s estate and the absence of any finding or evidence as'to the amount of the debts, the suggestion that there may be no estate in reznainder to pass under the 12th clause of the will is too fanciful to merit consideration. If the gift to the trustees of the Plain Edge Methodist Episcopal. Church was a gift absolute in character and for other than religious, educational, charitable or benevolent uses, it might forcibly be argued that such gift vested in interest at thé death of the testator, although the possession and enjoyment of it were deferred until the termination of the trust estate for the benefit of Margaret E. Bumstead (Hersee v. Simpson, 154 N. Y. 496 ; Matter of Seaman, 147 id. 69; Nelson v. Russell, 135 id. 137; Trowbridge v. Coss, 126 App. Div. 679; Matter of Watts, 68 id. 357), and that being a gift to an unincorporated association it would fail. (Murray v. Miller, 178 N. Y. 316 ; Fairchild v. Edson, 154 id. 199.) But it seems to us to be a question at least admitting of debate whether the gift of a fund the principal of which is to be invested and the income applied to the payment of the salazy of the minister of a designated church, may not be equivalent to the creation of a .trust for a religious and charitable use within the meaning of the act to regulate gifts for charitable purposes. (Laws of 1893, chap. 701; Allen v. Stevens, 161 N. Y. 122; Bowman v. Domestic & Foreign Missionary Society, 182 id. 494.) If such be the case, the mere fact that at the date of testator’s death there were strictly speaking no trustees of the Plain Edge Methodist Episcopal Church, and consequently no person named or definitely described who should execute such trust, the trust would not, therefore, fail .but would vest in the Supreme Court. (Laws of 1893, chap. 701, § 1.) Before the termination of the estate for the life of Margaret E. Bumsteád the said church may become incorporated, when it will of necessity have a board of trustees, and the right to perform such trust duties may then belong to them. At least they should be given an opportunity to assert their claim, and as no immediate prejudice to any one will result from postponing the consideration' of such questions, we cannot say that the surrogate abused the discretion conferred upon him in-declining to construe this clause of the will at the present time.

So much of the order or decree of the Surrogate’s .Court of. Nassau county as is appealed from should be affirmed, with, costs.

IIirschberg, P. J., Woodward, Jenks- and Thomas, JJ., concurred.

Decree of the Surrogate’s Court of Nassau county, in so far as appealed from, affirmed, with costs. .  