
    In the Matter of the Estate of Godfrey Nurse, Also Known as Henry A. G. Nurse, Deceased. Thomas B. Dyett et al., Respondents; Distributees of the Estate of Godfrey Nurse, Deceased, Appellants. City of New York, Intervenor-Respondent.
    Argued October 7, 1974;
    decided November 21, 1974.
    
      
      Elrich A. Eastman for appellants.
    I. The testator’s intention is the paramount consideration in a will construction proceeding. (Matter of Thall, 18 N Y 2d 186; Matter of Cairo, 35 A D 2d 76; Matter of Bellamore, 17 A D 2d 372; Matter of Martin, 32 A D 2d 849; Matter of Englis, 2 N Y 2d 395.) II. Cy pres is a doctrine invoked by the court to give effect to testamentary charitable bequests where a general charitable purpose is evidenced. It does not apply to a specific charitable bequest for a particular purpose which failed. (Matter of Syracuse Univ. [Heffron], 3 N Y 2d 665; Matter of Syracuse Univ. [Hendricks], 4 N Y 2d 744; Matter of Aker, 21 A D 2d 935; Matter of Zumstine, 13 A D 2d 780, 10 N Y 2d 957; Matter of Merritt, 280 N. Y. 391.) III. A new and limited trust was created by stipulation dated March 3, 1967, upon the termination of the original inter vivos trust.
    
      Louis J. Lefkowits, Attorney-General (Samuel A. Hirshowitz and George J. Wallace of counsel), for charitable beneficiaries, respondent.
    I. The intention of the testator was to give his residuary estate to the Godfrey Nurse Fund and not to die intestate. (Matter of Bisconti, 306 N. Y. 442; Herzog v. Title Guar. & Trust Co. of N. Y., 177 N. Y. 86; Matter of Watson, 262 N. Y. 284; Matter of Fabbri, 2 N Y 2d 236; Greene v. Greene, 125 N. Y. 506; Matter of Mayburn, 296 N. Y. 201; Chemical Bank & Trust Co. v. Streat, 237 App. Div. 441, 263 N. Y. 159.) II. The testamentary disposition of the residuary estate to the Godfrey Nurse Fund is valid. (Matter of Ivie, 4 N Y 2d 178.)
    
      Adrian P. Burke, Corporation Counsel (Martin H. Selman and Milton H. Harris of counsel), for City of New York, respondent.
    I. The Surrogate properly held that it was testator’s intention that the residue of his estate pass to the Godfrey Nurse Fund as amended during his life. This determination is in accord with canons of construction and is consistent with testator’s wishes exhibited in his approval of the continuance, as amended, of the Godfrey Nurse Fund, which was the residuary beneficiary under his will. (Matter of Fabbri, 2 N Y 2d 236; Matter of Thall, 18 N Y 2d 186; Matter of Birdsell, 271 App. Div. 90, 296 N. Y. 840; Matter of Hayes, 263 N. Y. 219; Matter of Martin, 32 A D 2d 849; Matter of Goldberg, 275 N. Y. 186.) II. That the testator did not intend that bequest of his residue to fail and that his intent was to have it devoted to charitable purposes is evidenced by the plan of his will which was maintained by the Supreme Court proceeding. (Matter of Syracuse Univ. [Heffron], 3 N Y 2d 665; Matter of Syracuse Univ. [Hendricks], 4 N Y 2d 744.) III. In any event, the bequest of the residue should be applied to the purposes of the Godfrey Nurse Fund as evidenced by the testator, under the cy pres doctrine. (Matter of Robinson, 203 N. Y. 380; Matter of Syracuse Univ. [Hendricks], 4 N Y 2d 744; Matter of Martin, 32 A D 2d 849; Matter of Neher, 279 N. Y. 370; Matter of Durbrow, 245 N. Y. 469; Matter of Potter, 307 N. Y. 504; Stephens v. Domestic & Foreign Mission Soc. of Protestant Episcopal Church in U. S. of Amer., 20 Misc 2d 1061, 14 A D 2d 562.)
    
      Joseph T. Arenson, Waldemar J. Dittmar and Philip Bekerman for Public Administrator, respondent.
    Article TENTH of ^decedent’s will validly and effectively disposed of his residuary estate to the Godfrey Nurse Fund. (Matter of Rausch, 258 N. Y. 327; Matter of Ivie, 4 N Y 2d 178; Beetson v. Stoops, 186 N. Y. 456; Matter of Goldberg, 275 N. Y. 186; Matter of Herzog, 301 N. Y. 127; Trustees of Sailors’ Snug Harbor v. Carmody, 158 App. Div. 738, 211 N. Y. 286; Hadcox v. Cody, 213 N. Y. 570; Matter of Hayes, 263 N. Y. 219; Matter of Birdsell, 271 App. Div. 90, 296 N. Y. 840; Matter of Hull, 37 A D 2d 325.)
    
      Patrick J. Carr for Clementine Nurse Le Touzé, amicus curiae.
    
    I. The testamentary bequest under Article TENTH of decedent’s will lapsed pursuant to EPTL 3-3.7 since: (a) the inter vivos trust created by decedent on May 23, 1956 terminated on May 23, 1966 prior to the death of decedent, and (b) said inter vivbs trust was not amended or extended by the judgment of the Supreme Court or by the decedent. II. The cy press doctrine may not be applied to prevent the lapse of the bequest under Article TENTH. (Matter of Syracuse Univ. [Heffron], 3 N Y 2d 665.) III. In this proceeding the intention of the testator is not controlling. (Matter of Englis, 2 N Y 2d 395; Matter of Hull, 37 A D 2d 325; Matter of Burk, 298 N. Y. 450.)
   Rabin, J.

We are called upon to construe the will of Godfrey Nurse, made in 1961. Our attention is focused upon Article TENTH ” pouring over his residuary estate to an inter vivos charitable trust, created in 1956. Before the testator’s death in 1968, that trust was the subject of a 1967 judgment of the Supreme Court. The issue is whether by that judgment the trust was terminated or merely amended. If terminated, the pour over provision lapses and the residuary estate passes by intestacy to the statutory distributees, including the six appellants, who are testator’s half sisters and issue of predeceased half sisters and half brothers, in the West Indies. If amended, there is compliance with the controlling statute, EPTL 3-3.7, and the residuary passes to the Godfrey Nurse Fund, a charitable entity held and administered by the City of New York.

In pertinent part, EPTL 3-3.7 provides:

(a) A testator may by will dispose of or appoint all or any part of his estate to a trustee of a trust, the terms of which are evidenced by a written instrument executed by the testator, # * * provided that such trust instrument is executed and acknowledged by the parties thereto in the manner required by the laws of this state for the recording of á conveyanee of real property, prior to or contemporaneously with the execution of the wall, and such trust instrument is identified in such will.

“(b) The testamentary disposition or appointment is valid, even though:

“ (1) The trust instrument is amendable or revocable, or both, provided, however, that the disposition or appointment shall be given effect in accordance with the terms of the trust instrument, including an amendment thereto, as they appear in writing on the date of the testator’s death * * * if the instrument evidencing such amendment is executed and acknowledged in the manner herein provided for executing and acknowledging the instrument which it amends. V-A Mg TV w TV

“ (e) A revocation or termination of the trust before the death of the testator shall cause the disposition or appointment to fail, unless the testator has made an alternative disposition.”

For reasons which follow, we have concluded that the contested article of testator’s will effectively pours over his residuary estate to the Godfrey Nurse Fund, and agree with the Surrogate and the majority in the Appellate Division that the Supreme Court judgment constitutes an amendment to the inter vivos charitable trust originally created in 1956, within the meaning of EPTL 3-3.7 (subd. [b], par. [1]).

The Original Trust Instrument

Godfrey Nurse was a prominent physician in Harlem. On May 23, 1956 he created an irrevocable inter vivos charitable trust named the Godfrey Nurse Fund for the purpose of furnishing and appropriating “ funds necessary for the operation of the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital in the City of New York or its successor or successors.” The corpus of $105,000 was transferred to Thomas B. Dyett and City Bank Farmers Trust Company as trustees with instructions to pay the income and up to $10,000 per a.rmnm of the principal to Harlem Hospital to be used for building, equipping and operating the laboratory. The entire principal was to be paid over to Harlem Hospital at the end of 10 years. The trust instrument provided for termination “ [i]f at any time the said Laboratory shall cease to function as such ” in which case the trustees were to pay over the principal to Harlem Hospital “ for the general purposes of such institution.”

The Will

On June 16, 1961, Dr. Nurse executed his will bequeathing $33,000 to friends, $5,000 to the Harlem branch of the YMOA, $25,000 to the University College of the West Indies, $50,000 to his sister and $25,000 to her son, his nephew. The controversy grows out of the will’s tenth article which reads as follows: ‘ ‘ All the rest, residue and remainder of my property, of whatsoever kind, nature or description and wheresoever the same may be situate, of which I may die seized or possessed, or to which I may be entitled at the time of my death, I give, devise, and bequeath unto City Bank Farmers Trust (Now First National City Trust Company), and Thomas B. Dyett, as Trustees of a certain inter vivos charitable trust made by me as settlor and dated 23rd day of May, 1956, and known as the Godfrey Nurse Fund for the benefit of the Godfrey Nurse Laboratory for Experimental Surgery At Harlem Hospital in the City of New York with direction to the Trustees to apply and distribute the said funds in accordance with the provisions of the said trust.”

The Supreme Court Proceeding and Judgment

For reasons which do not appear, the specific purpose of the trust — the creation of the Godfrey Nurse Laboratory — was never realized. Although some of the interest from the fund was applied with Dr. Nurse’s approval to surgical projects, lectures, scientific travel and scientific activities, by November of 1966 there remained over $117,000 of principal and accumulated income in the hands of the trustees. At that time the trustees petitioned the Supreme Court for a judicial settlement of their account and for instructions “ as to the proper disposi-. tion of the trust funds to the end that the judgment to be entered herein will direct the administration and expenditure of the trust funds in a manner which will most effectually accomplish the general purpose of the trust.”

Although by terms of the trust instrument, the entire principal was to be paid to Harlem Hospital at the end of 10 years, this payment was never made. Bather, on March 31, 1967, the trustees, Dr. Nurse, the Attorney-General and the Corporation Counsel of the City of New York entered into a stipulation providing that after the payment of the trustees’ commissions and other necessary expenses, the funds held by the trustees be “ paid over to the City of New York to constitute a fund known as ‘ The Godfrey Nurse Fund ’ which is to be held and administered upon the following terms and conditions ”. By those terms and conditions, certain directors were named with provision for their successors, and the funds were directed to be spent on the Godfrey Nurse Lectures (to be delivered at Harlem Hospital or a place chosen by the Fund’s directors, the lecturer for each occasion to be a surgeon or distinguished worker in surgery to be chosen by the Director of Surgery at Harlem Hospital), the Godfrey Nurse Research and Travel Grants (for which “ Any Negro engaged specifically in the field of surgery shall be eligible ”) and the Godfrey Nurse Fellowship (“to be granted to a Negro surgeon of pre-eminant distinction ”).

The Supreme Court approved and incorporated the terms of the stipulation into its judgment, entered on May 29, 1967. Godfrey Nurse died 20 months later, on December 22, 1968, without making another will or changing by codicil the bequest of his residuary estate to the inter vivos trust. Thereafter, the will was admitted to probate and Dr. Nurse’s executor commenced the instant proceeding for construction of its tenth article, the residuary clause. The residuary estate amounts to over $250,000. As stated, the issue is whether the Supreme Court judgment, instructing the trustees as to the disposition of the trust fund, constitutes an amendment of the inter vivos trust originally established in 1956, so as to comply with EPTL 3-3.7, or whether it terminated the trust and created some other wholly new entity.

It is apparent from the divided court in the Appellate Division and the dissent within our own court that the contested pour over provision of the will is susceptible of more than one construction. An ambiguity exists regarding the testator’s intention as to the disposition of his residuary estate, particularly in view of the provision of EPTL 3-3.7 (subd. [b], par. [1]) that the trust instrument identified in the will shall be given effect in accordance with [its] terms * * * including an amendment thereto, as they appear in writing on the date of the testator’s death ” (emphasis added). On the date of Dr. Nurse’s death, the Godfrey Nurse Fund was not being used for the benefit of the laboratory for experimental surgery at Harlem Hospital noted in the will, but rather for other charitable purposes generally for the benefit of Harlem Hospital and Negro surgeons.

Because of the ambiguity surrounding the testator’s intent, we have been guided by certain general principles and policies of the law, embodied in presumptions ” and rules of construction ”, in reaching our decision that the pour over provision should be given effect in this case. We note particularly the presumption against intestacy (Matter of Hayes, 263 N. Y. 219, 225; Matter of Dammann, 12 N Y 2d 500, 504) particularly strong as to residuary bequests (Matter of Fabbri, 2 N Y 2d 236, 243) and the long-standing principle of construction that “ where a testator has apparently sought to leave money for a charitable purpose, a liberal construction is to be given to the terms of the will in order to uphold it and- validate the bequest.” (Matter of Potter, 307 N. Y. 504, 517.) These principles, founded in experience and policy, guide our inquiry.

We focus upon the nature and result of the Supreme Court proceeding and are not persuaded by appellants’ contention that the trust was terminated either by its own terms or by the judicial decree. We note that where a lapse of the testator’s residuary bequest would result, termination must be convincingly shown. (Of. 4 Scott, Trusts [3d ed.], 401.2; Bogert, Trusts and Trustees [2d ed.], § 420.) It is clear that the trust’s provision for automatic termination if the laboratory ceased to function was never triggered. The other event which arguably might have ended the trust by its terms — payment of the entire principal to Harlem Hospital at- the end of 10 years — never occurred. Moreover, the judgment incorporating the stipulation makes no mention of termination. The trust was in existence at the time of the stipulation and, upon the Supreme Court’s judgment, it continued in existence, in altered form. The receptacle of the residuary estate — an inter vivos trust known as the Godfrey Nurse Fund — is a continuing entity. By statute, its terms are to be given effect in its amended form.

We agree with the Surrogate that the judgment incorporating the stipulation was an application of the doctrine of cy pres to the inter vivos trust. The original trust agreement provided that at the end of 10 years the Trustees shall pay over to [Harlem] Hospital the entire principal of the trust fund then held by them hereunder.” Harlem Hospital would then, as we read the original trust agreement, be required to apply that corpus to the Godfrey Nurse Laboratory contemplated under the trust agreement. The instrument, however, did not provide for a reverter or alternative disposition of the corpus if the laboratory never came into existence. Thus, though the laboratory was unrealized, by the terms of the trust the corpus was nonetheless to pass to Harlem Hospital at the end of 10 years. Since that corpus obviously could not be applied to the laboratory, it could be expended for purposes other than those set forth in the trust agreement. It was to avoid this result that the trustees instituted the Supreme Court proceeding which ended in the judgment amending the trust by approving the application of the fund to its next best use.

In that proceeding, the trustees’ petition, framing the issue before the court, alleged that “ A question may exist as to whether circumstances have so changed since the execution of the trust agreement that it is impracticable to carry out the intention of the testator by a literal compliance with the terms thereof ”. Authority for the proceeding is found in the parallel language of the then-effective subdivision 2 of section 12 of the Personal Property Law (now, with minor changes, EPTL 8-1.1, subd. [c]) which, in relevant part, provided: whenever it shall appear to the court that circumstances have so changed since the execution of an instrument containing a gift, grant or bequest 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 or bequest 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; provided, however, that no such order shall be made without the consent of the donor or grantor of the property, if he be living.”

The particular purpose of the trust was altered but the fund was consistently applied to advance the growth of surgery at Harlem Hospital and the position of the Negro in the field of surgery — ■ aims which may be regarded as Dr. Nurse’s “ general charitable intent ” sufficient to warrant the Supreme Court’s exercise of discretion in applying subdivision 2 of section 12 of the Personal Property Law to the trust. (Cf. City Bank Farmers Trust Co. v. Arnold, 283 N. Y. 184, 194; Sherman v. Richmond Hose Co., 230 N. Y. 462, 473.) By its judgment, the Supreme Court, in effect, concluded that the settlor’s intent was not fixed so profoundly on the specific purpose named that the trust was incapable of modification to accomplish similar purposes and to avoid devolution of the entire corpus for the unrestricted use of Harlem Hospital. The settlor was present to voice his intention regarding the next best use for the fund (see Bogert, Trusts and Trustees [2d ed.], § 442) and he consented to the amendment along with all other parties concerned in the original trust agreement. Finally, the alteration of the specific trust purpose received the required imprimatur of the Supreme Court when the stipulation was reduced to judgment. (Personal Property Law, § 12; EPTL 8-1.1, subd. [c] ; Bogert, Trusts and Trustees [2d ed.], § 383; Scott, Trusts [3d ed.], § 367.2; Restatement, Trusts, 2d, § 399.) Though this judgment is not directly before us for review, by our decision we are effectuating it. This, of course, implies our own judgment that the Supreme Court did not abuse its discretion in approving the stipulation and thereby in satisfying itself, as it was required to do, that the realization of the testator’s initial specific plan for the fund — the laboratory — cannot be regarded as a necessary condition of the trust or an “ express command ” sufficient to foreclose application of the doctrine of cy pres to the trust res during his lifetime and with his consent, in compliance with the statute. (Compare Matter of Syracuse Univ. [Heffron], 3 N Y 2d 665 with Matter of Syracuse Univ. [Hendricks], 4 N Y 2d 744; see, generally, Bogert, Trusts and Trustees [2d ed.], § 420.)

By its judgment, the Supreme Court permitted a deviation from the terms of the trust. The unrestricted gift over to Harlem Hospital at the end of 10 years was prevented. This was the event which could have terminated the trust hy its terms but which the settlor and trustees sought successfully to avoid. The Supreme Court satisfied itself that a modification of the specific trust purpose would more effectually accomplish the purpose of the trust and the settlor’s charitable intent. AH we hold today is that where a trust is so modified during the settlor’s lifetime, by application of the ancient doctrine of cy pres, the judgment permitting the modification constitutes an amendment ” within the meaning of EPTL 3-3.7 (subd. [b], par. [1]) which preserves rather than terminates the original trust.

Because this type of trust amendment is accomplished by court order, as it must be, there is compliance with the requirements of EPTL 3-3.7 (subd. [a] and subd. [b], par. [1]) that the amendment be “ executed and acknowledged by the parties thereto in the manner required by the laws of this state for the recording of a conveyance of real property ”. What is required is that the instrument of amendment be recordable. Section 297-b of the Real Property Law provides that the certified copy of “ a judgment, final order or decree * * * rendered by a New York state court of record * * * affecting the title to or possession, use or enjoyment of real property * * * may be recorded * * * in the same manner as a conveyance duly acknowledged or proved and certified so as to entitle it to be recorded ”. The amendment meets the requirements of the recording laws of this State. The EPTL provides that these requirements be met, not so that the instrument of amendment can actually be recorded, but in order to safeguard against fraud and overreaching. The Legislature in section 297-b of the Real Property Law has deemed a judgment to meet the otherwise specified requirements of execution and acknowledgement and has thereby regarded a judgment, of itself, as sufficient safeguard against the evils sought to be avoided by the recording laws. These evils are further avoided by the statutory requirements of the settlor’s consent to a modification of a charitable trust during his lifetime (Personal Property Law, § 12, subd. 2; now EPTL 8-1.1, subd. [c]). The instrument evidencing the amendment to the trust referred to in the testator’s will is a judgment of the Supreme Court and as such it meets the formal requirements of EPTL 3-3.7.

In regarding the Supreme Court’s judgment incorporating the stipulation of the interested parties as an amendment of the original inter vivos trust, we have liberally construed the provisions of EPTL 3-3.7, as applied to this particular charitable trust. The statute does not expressly circumscribe the type of allowable “ amendments ” to an inter vivos trust instrument which is identified in a testamentary pour over provision. (See Report No. 6.IB, Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, N. Y. Legis. Doc., 1963, No. 19, pp. 286, 307, 313.) This is a task more properly left to the judiciary. It is still our task to determine, as here, the validity of testamentary provisions pouring over property to trusts which are at once subject to amendment after execution of the will and nonetheless free from the specific and salutary requirements of the Statute of Wills (EPTL 3-2.1).

Nonetheless, in determining the nature and extent of allowable amendments to a particular inter vivos trust, our inquiry remains ultimately cast in the framework of the policies underlying that same Statute of Wills — the avoidance of fraud, chicahery, mistake (Matter of Rausch, 258 N. Y. 327, 333) or the possibility of foisting upon the testator a document which fails to declare his purpose (Matter of Fowles, 222 N. Y. 222, 233). “ Some reference to matters extrinsic is inevitable. Words are symbols, and we must compare them with things and persons and events * * * It is a question of degree ” (p. 232). None of these policies is frustrated by our decision today. It is true that the referencé in the will to the trust creating the Godfrey Nurse Fund includes a specific purpose for the fund which was later modified in favor of a closely related purpose. Yet, the modification was accomplished with the testator’s consent and was embodied in a judicial decree. By comparison of the description in the will with the Godfrey Nurse Fund as constituted on the date of the testator’s death, we learn the terms of a subsisting relation. (Cf. Matter of Rausch, 258 N. Y. 327, 333, supra.) As a logical matter, this relation enables us to find an amendment of the trust meeting the requirements of EPTL 3-3.7, and, as a matter of policy, to sustain the charitable bequest of the residuary to the Godfrey Nurse Fund and thereby to avoid an intestacy clearly repugnant to Dr. Nurse.

Accordingly, we would affirm the order of the Appellate Division.

Chief Judge Breitel

(dissenting). In a will construction proceeding, testator’s statutory distributees appeal. The Surrogate’s decree, affirmed by a divided Appellate Division, accepted a Godfrey Nurse Fund ”, reconstituted in 1967, as the designated residuary legatee under testator’s will.

The issue is whether the Godfrey Nurse Fund established in his lifetime in 1956 by the testator expired in 1966, or was only restructured and its purposes recast by a judgment based on a stipulation in the final accounting of the expired ” trust. Put another way, the question is whether the 1967 judgment disposed merely of the remainder interest in an expired and frustrated trust or whether it continued unbroken the life of the 1956 trust so that it might qualify as the named residuary legatee in the 1961 will.

I dissent and would reverse the order of the Appellate Division, and would hold that the 1967 rearranged trust ” did not qualify as the residuary legatee.

The trust created in 1956 was intended to establish and operate the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital in the City of New York. It ‘ expired ’ ’ by the terms of the trust instrument on May 23, 1966, and the principal was then to be turned over to the hospital for “ the general purposes of such institution.” Since this was before the testator’s death on December 22, 1968, the residuary clause fails and the residuary must pass by intestacy (EPTL 3-3.7, subd. [e]). The rearranged trust ” created in 1967 was, by its terms and effects, a new fund, created out of the remainder of the 1956 trust, not merely an amendment of that trust. As held otherwise by the majority and by the courts below, the 1967 judicial rearrangement of the 1956 trust would constitute an open-ended and free-floating testamentary device which the law proscribes.

Dr. Godfrey Nurse was a wealthy and distinguished physician in New York City’s Harlem. Desiring to benefit the Negro physician and the community where he had made his name and fortune, he established, on May 23, 1956, an irrevocable inter vivos trust known as the 11 Dr. Godfrey Nurse Fund The sole purpose of the trust was “ to furnish and appropriate funds necessary for the operation of the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital ”. The trustees were to pay to the hospital, in their discretion, an annual sum up to $10,000 out of income, and, if necessary, out of principal, for the establishment and operation of the laboratory. At the end of 10 years, or sooner if the laboratory ceased to'function, the principal of the trust, as noted earlier, was to be paid over to the hospital for its general purposes. The trustees were Thomas B. Dyett and the then City Bank Farmers Trust Company.

In his last will dated June 16, 1961, Dr. Nurse bequeathed the residuary of his estate to the trustees of the inter vivos trust known as “ the Godfrey Nurse Fund ” for the benefit of the Godfrey Nurse Laboratory for Experimental Surgery. Notably, in naming the fund, its specific purpose was spelled out by the will so that there can be no mistake which fund was meant.

The purposes of the inter vivos trust were never effected. As Dr. Nurse wrote on May 4,1966 to Dr. Yerby, the then City Commissioner of Hospitals, he had wished that the laboratory in experimental surgery be set up under the aegis of his friend and colleague, Dr. Aubre de L. Maynard, the Director of Surgery at Harlem Hospital. When this proved impossible, the city, which owned Harlem Hospital, suggested that the laboratory be installed in a new hospital facility then under consideration; but this too was never done. Meanwhile, Dr. Nurse had approved the use of the irrevocably entrusted fund, for lack of anything better, to finance surgical projects, lectures, scientific travel and related activities sponsored by Dr. Maynard. Now, in May of 1966, with the trust perforce ending, Dr. Nurse had been advised that he could not under the trust instrument prevent the fund principal from passing to Harlem Hospital and the city. In his letter to Dr. Yerby, Dr. Nurse insisted that the remainder of the trust be used solely for the Surgical Service of Harlem Hospital with Dr. Maynard as director of the fund. When Dr. Yerby, in a reply letter of May 24, 1966, suggested that Dr. Maynard could not be the fund director once his association with Harlem Hospital should end, Dr. Nurse instructed the trustees to seek a judicial termination of the trust.

A petition to settle and conclude the trust was filed by the trustees in Supreme Court on November 1, 1966. The petition recited that the trust had terminated. During the proceeding a stipulation by the attorneys for the parties, dated March 31, 1967, agreeing to the disposition of the fund principal, was reached, with Dr. Nurse’s approval. By the stipulation, the fund principal was to be paid to the City of New York, to be held and administered by it as a fund also to be known as “ The Godfrey Nurse Fund ”. Its terms, generally for the benefit of Harlem Hospital, included establishment of lectures, research and travel grants, and a fellowship, all named after the benefactor. The directors, with power only to pass on applications for grants, were to be Dr. Maynard, two other physicians, and the Commissioner of Hospitals. The stipulation was embodied in the Supreme Court judgment entered on May 29, 1967.

(Assuming, dubiously, that posttestamentary evidence of intention is admissible, at about this time, according to the late Mr. Dyett, Dr. Nurse asked him to prepare a codicil to his will leaving the residuary of his estate to the University College of The West Indies, Kingston, Jamaica. The codicil was prepared and delivered, but never executed because Dr. Nurse had suffered a stroke. Dr. Nurse died on December 22,1968, not having changed his 1961 will.)

Mr. Dyett, as executor under the will, brought the present proceeding to construe the will. Despondent distributees, who are various next-of-kin, contend that since the fund, for which Dr. Nurse intended the residuary, no longer existed, the residuary -should pass to the statutory distributees by intestacy. The Surrogate properly found no general charitable intent by which to invoke the cy pres doctrine. In support of his holding the Surrogate quoted: “ Where it clearly appears that the testator intended that the property should be applied only to the particular purpose which failed, or for the -benefit of a particular association or corporation which was dissolved, it has been held that the doctrine of cy pres is not applicable and that the property reverts to the settlor or his estate.” (4 Scott, Trusts [3d ed.j, § 399.3.) But he nevertheless found “inter vivos cy pres ” in the stipulation of March 31, 1967, which he construed to amend the original trust declaration rather than to create a new fund. The Godfrey Nurse Fund, was still extant, he thus held, and therefore the beneficiary under the residuary clause of the 1961 will. The Appellate Division affirmed over a strong dissent.

A testator may by will appoint all or part of his estate to a trustee of a pre-existing trust, the terms of which are evidenced by a written, executed instrument, incorporated by reference into, the will (EPTL 3-3.7). There are, however, among others, two prerequisites for such a testamentary disposition. First, the trust instrument must have been executed and acknowledged by the parties, in accordance "with the requirements for the conveyance of real property, prior to or contemporaneously with the execution of the will (EPTL 3-3.7, subd. [a]). And second, the trust must not have been revoked or terminated before the testator’s death (EPTL 3-3.7, subd. [e]).

The Godfrey Nurse Fund “ for the benefit of the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital,” the trust thus designated and limited in. purpose, is the residuary beneficiary of Dr. Nurse’s will. It terminated, according to the instrument of its creation, in May, 1966, 10 years after its inception, and significantly, more than two years before testator’s death. A second “ trust ”, if indeed it was a trust or only a conditional gift, also known as the Godfrey Nurse Fund, but having different purposes and a different “ trustee ”, was improvised in 1967, as a compromise to dispose of the remainder of the 1956 trust. This arrangement wa,s not an amended version of the 1956 trust to which the residuary clause referred and described so definitively by purpose. The 1967 arrangement was not created by instrument prior to or contemporaneous with the execution of the will, nor was it set up by any instrument executed in the manner required by law for a “ pour-over ” trust or a testamentary instrument. "With the 1956 trust terminated prior to death and the will unchanged to permit disposition of the residuary to the newly constituted fund or any other beneficiary, the residuary clause fails.

The 1967 device was perhaps not even a trust but most likely only a conditional gift (see, generally, e.g., 7 N. Y. Jur., Charities, §§ 5, 9, 10; see, especially, St. Joseph’s Hosp. v. Bennett, 281 N. Y. 115, 118-123). That the 1967 device was not clearly a trust but perhaps a conditional gift emphasizes that the 1967 occurrence, whatever else it was, was not a continuation of the 1956 trust.

Paramount doctrine in interpreting a will requires following the intention of the testator when he executed it (Matter of Englis, 2 N Y 2d 395, 404; Matter of Hoffman, 201 N. Y. 247, 255). In his 1961 will Dr. Nurse spelled out his residuary beneficiary as the Godfrey Nurse Fund for the benefit of the Godfrey Nurse Laboratory for Experimental Surgery at Harlem Hospital in the City of New York ”, Obviously, the identity of name between the 1956 trust and the 1967 fund is of no consequence. The nomenclature served only the purpose of continuing the name of the original but frustrated donor. Without recourse to nontestamentary documents, the will negates the possibility that Dr. Nurse intended, despite his frustration, to leave the residuary to a trust, no longer extant and the primary purpose of which had never been fulfilled and would never be fulfilled.

When the 1956 trust fund had terminated on May 23, 1966, Dr. Nurse having retained no power to modify or revoke the trust, the hospital’s (or the city’s) right to the remainder was absolute. The Godfrey Nurse Fund had terminated because the happening of a specified event or the expiration of a stated period of time terminates a trust (see Restatement, Trusts, 2d, § 334; 4 Scott, Trusts [3d ed.], § 334; Bogert, Trusts and Trustees [2d ed.], § 991).

Although a second fund, also dubbed the Godfrey Nurse Fund, was ultimately set up to receive and hold the remainder of the expired trust, this was a new fund created out of the unrestricted remainder, not an amended version of the limited trust designated in the will by name and there defined by purpose as the residuary legatee. The Supreme Court judgment, born of a stipulation by the attorneys for the parties, established the substitute fund only because of a controversy over the disposition of the remainder of the expired trust. True, Dr. Nurse had acquiesced in the use of the original Godfrey Nurse Fund for purposes other than those specified in the trust instrument. A primary reason, as it emerges from his correspondence in the record, was his high regard for Dr. Maynard. When, however, Dr. Nurse realized that, with the ending of the trust and the impending passing of the remainder to the hospital and the city, neither he nor Dr. Maynard would or could continue to control the use of the trust corpus, he finally sought judicial intervention to redirect its use. It is significant that the expired frustrated trust embraced a substantially smaller sum than the anticipated residuary of the estate.

The trustees ’ petition for a judicial settlement and an accounting was to prevent the devolution of a remainder to the city unrestricted except that it had to be used for the general purposes of the hospital. The judicial proceeding was not necessary, however, to terminate the 1956 trust. The specified duration was 10 years and the trustees ’ petition stated that the trust had terminated on May 23,1966. The court, of course, except in extraordinary circumstances, lacked power to extend the trust (see, generally, Ann., Trust Term — Extension, 46 ALR 2d 907).

The stipulation signed by the attorneys for the parties with Dr. Nurse’s consent nowhere suggests, let alone states, that it was intended to amend the original unamendable trust. Moreover, the second Godfrey Nurse Fund had different purposes and a new “ trustee ”, if that it be, the City of New York, as the legal owner of Harlem Hospital, the named remainderman of the 1956 trust. It was stipulated that the fund held by the trustees be turned over to the city “ to constitute a fund ” which was also to be known as “ the Godfrey Nurse Fund ”. Although the city was to hold and administer ” the fund, a board of directors was designated, evidently to assist only in the allocation of grants. Their powers, in the stipulation and the judgment based on it, are only to pass on applications for grants.

With this history of the 1956 ‘ ‘ Fund ’ ’ and the radical change in its structure, management, and purpose, it is unacceptable to regard the later fund as a continuation of the first. The only strings of identity are the corpus and the honorific name of the “ Fund ”. This satisfies neither the intention of Dr. Nurse either as settlor or testator, nor does it meet the minimal requirements of the statute which authorizes a “ pour-over ” testamentary disposition into an existing trust.

Moreover, the Surrogate’s reasoning in rejecting the application of the cy pres doctrine to the residuary clause was, as noted earlier, quite correct, because the testator’s will had not evidenced a general charitable intent. It is difficult to see how a more generalized intent was applicable to the inter vivos trust, before or after the 1967 judicial surgery. Before the judicial surgery the inter vivos declaration of trust was as specific in intent as the residuary clause. After the judicial surgery, the new fund’s purpose could not satisfy the specific intent of the residuary clause. In any event, that judicial surgery could not qualify as an amendment to a “ pour-over ” trust because the form of the “ amendment ” did not satisfy thq • statute.

Indeed, the underlying stipulation for the judgment could not qualify as an amendment to a “ pour-over ” trust under EPTL 3-3.7. Paragraph (1) of subdivision (b) of the statute requires that any amendment to a trust must be executed and acknowledged in the manner herein provided for executing and acknowledging the instrument which it amends.” Under EPTL 3-3.7 (subd. [a]) the trust instrument must be executed and acknowledged ‘ in the manner required by the laws of this state for the recording of a conveyance of real property ’ \ The 1967 stipulation was signed not by Dr. Nurse, but by his attorney. An authorized agent may execute a deed or conveyance for the grantor, but the authorization must be in writing (Beal Property Law, § 243; General Obligations Law, § 5-703). Assuming Dr. Nurse’s attorney was so authorized, the trust instrument would have to be acknowledged by the executing parties or proven by attestation (Beal Property Law, §§ 243, 291). Neither the stipulation nor the judgment into which it was incorporated, were formally acknowledged or attested.

Of course, the requirement of EPTL, concerned only with the manner of execution of a trust instrument, is not met by an instrument of record, even a judgment. It is met only by an instrument executed by the settlor in a manner, that is, with the formalities, that a recordable instrument must be executed. The trust instrument need not be “ recordable ”. Indeed, unless real property or a security interest is involved, it will be rare, or never, that a trust instrument or its amendment will be recorded. The statutory reference to a manner of execution is to assure authentic execution and not to produce a recorded or recordable instrument. Hence, the fact that the judgment in the 1967 proceeding is a record instrument, because rendered in a court of record, is just as immaterial as if it were a Us pendens or a pleading which would also be of record. Section 297-b of the Beal Property Law is not concerned with the manner of execution of an instrument and applies only to a judgment affecting title to real property and permits recording in the index of real property records.

The Legislature, in enacting EPTL 3-3.7, was aware of possible abuse in permitting an estate to devolve by nontestamentary documents. If pour over trusts were to be allowed, their unrestricted amendment was deemed vulnerable to fraud and mistake (Beport No. 6.1B, Temporary State Commission on the Modernization, Eevision and Simplification of the Law of Estates, N. Y. Legis. Doc., 1963, No. 19, pp. 286, 313). EPTL 3-3.7 was therefore intended to enforce the recognized requirements for valid incorporation by reference, namely, that the will refer to a then-existing document, describing it so that it could be unequivocally identified, and that the incorporation reflect the testator’s unambiguous intention (p. 290).

Whichever way one turns, the 1967 stipulation-judgment fails to sustain a continuing amended trust. As an amendment it does not satisfy the requirements for execution mandated by statute. In content it does not supply an amendment to an unamendable trust declaration but sets up a different fund without a trustee and with different purposes. In purpose and intention it was only to placate the frustrated benefactor by placing some limitation on the use of the otherwise largely unrestricted remainder of the inter vivos trust. The stipulation-judgment is a far cry from establishing a pour over trust into which the residuary clause can be twisted to pass the residuary of the estate.

Tested, as it must be, by these standards, the 1967 fund as interpreted by the courts below would be an open-ended, free-floating testamentary document that EPTL 3-3.7 does not and was never intended to allow. As for Dr. Nurse’s intention, the residuary clause is explicit and it is legally perverse to look elsewhere. Moreover, as the dissenters below aptly noted, it is cruel irony indeed that the residuary should pass to an improvised fund whose very existence he had been forced reluctantly to accept by way of compromise, caused only by the absence of a reverter provision in the 1956 inter vivos trust instrument. In short, the manipulation of the trust into the rearranged fund as a continuing legal entity is legally impermissible, and the violation of testator’s intention gross. Even if one knew that he would have consented to such a result, and one knows the contrary, the law of testamentary disposition and the devolution of trusts would forbid it.

The law prefers, it is true, to avoid intestacy; but it absolutely rejects rewriting another’s will after his death and prefers intestacy to the more abhorrent result (Matter of Englis, 2 N Y 2d 395, 401, 405, supra).

Accordingly, I dissent and vote to reverse the order of the Appellate Division and to remand the proceeding to the Surrogate’s Court for distribution of the residuary by intestacy.

Judges Gabbielli, Jones and Wachtleb concur with Judge Babin ; Chief Judge Bbeitel dissents and votes to reverse in a separate opinion in which Judge Jasen concurs; Judge Stevens taking no part.

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. 
      
      . Pursuant to EPTL 8-1.1 (subd. [£]) (formerly, Personal Property Law, § 12, subd. 3), the Attorney-General represents the beneficiaries and acts as the protector and enforcer of charitable trusts.
     
      
      . The City of New York is the owner of Harlem Hospital.
     
      
      . By its sanction of pour over provisions meeting certain requirements, the statute obviates the necessity of resort to the overlapping doctrines of “ incorporation by reference ” and “ facts of independent significance ” in explaining the reasons for our decision. (See Commission Report 6.1B, p. 368; see, generally, McClanahan, Bequests to an Existing Trust — Problems and Suggested Remedies, 47 Cal. L. Rev. 267; Palmer, Testamentary Disposition to the Trustee of an Inter Vivos Trust, 50 Mich. L. Rev. 33; Note, 34 N. Y. U. L. Rev. 1106; Ann., 12 ALR 3d 56.)
     