
    Silas Decker and John V. Decker, Appellants, v. Carrie M. Vreeland and Others, Individually and as Executors, etc., of Conrad Vreeland, Deceased, Respondents, Impleaded with Jacob R. Decker and Others, Defendants.
    Second Department,
    December 17, 1915.
    Decedent’s estate — devise to individuals in perpetuity for charitable use — devise exceeding one-half of testator’s estate — Decedent Estate Law, section 17, construed.
    A devise to trustees in perpetuity, the income to be applied to the maintenance of churches, ministers and missionaries of a certain religious denomination located within certain counties, does not offend section 17 of the Decedent Estate Law, although the gift exceeds one-half of the testator’s estate.
    Said statute limits the amount of devises and bequests only where the gift is to the charitable institution itself, or, it seems, to trustees who are to turn over the corpus to such charitable institution. The statute does not apply to a devise to individuals for charitable uses.
    Appeal by the plaintiffs, Silas Decker and another, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Kings on the 24th day of March, 1915, dismissing the complaint upon the decision of the court after a trial at the Kings County Special Term in an action for partition.
    
      Merle I. St. John, for the appellants.
    
      William D. McNulty, for the respondents Walter D. Hoag and others.
   Putnam, J.:

Plaintiffs, being respectively the husband and son of Jane E. Decker, testator’s sister, sue here for the construction of Conrad Vreeland’s last will, made and probated in New Jersey, where the testator .resided up to his death in June, 1913. He died seized of real estate in New Jersey worth $52,590 and possessed of personalty there amounting to $47,000. He left realty in the State of New York worth $41,300. He had no debts; and his funeral expenses were less than $1,000. He left no descendants, but was survived by a widow, Carrie M. Vreeland (a defendant), and the plaintiff John V. Decker, with, certain other defendants, his heirs at law and next of kin.

His will gave his widow the household furniture, live stock and farming utensils, also in lieu of dower she received an annuity of fifty dollars a month. He disposed of the residue as follows:

“ Item fourth. Subject to the foregoing bequests and devises I give, devise and bequeath unto my executors, hereinafter named, but nevertheless in trust, all my real and personal estate of every kind whatsoever and wheresoever the same may be found to which I may die seized; my said executors or trustees to hold said estate and not to encumber the real estate in any way whatsoever, but to keep it in good condition and repair, and to keep the funds of my estate properly invested in bonds and mortgages, and to use the income derived therefrom in the following manner: To pay the North New Jersey Baptist Association all the income derived from my estate for and towards the maintenance of the churches, ministers and missionaries of the Baptist denomination, and for the erection of regular Baptist Churches, which are presided over by regular Baptist ministers only, and for the payment of salaries of said ministers or missionaries only; but no minister presiding over any of said churches to receive out of said income any sum in excess of three hundred dollars as salary in any one year. I hereby empower my executors and trustees to sell and give title of any real estate I may own at my decease. Any church receiving any benefit under this, my last will and testament, to be supplied with a minister who shall hold service in such churches at least once on each Sabbath day, weather permitting. Said income to be applied only to the support, erection and maintenance of churches in the manner aforesaid, in the Counties of Passaic, Bergen, Morris and Sussex, in the State of New Jersey, and which are not located, within the limits of any incorporated city in said counties.

“ Item fifth. I hereby nominate and appoint my wife, Carrie M. Vreeland, Walter D. Hoag and George C. Freeland executors and trustees of this, my last will and testament. I hereby order and direct that the trustees of this trust hereinafter created, shall consist of three persons, and in the event of the death or resignation of any of the above named three trustees or their successors that said vacancy or vacancies shall continue until the next annual meeting'or conference of the North Jersey Baptist Association, at which time a trustee shall be selected for each such vacancy or vacancies in the same manner as the association selects its other officers.”

By the 4th clause the residuum of the estate, which constitutes practically the entire estate, is to be held perpetually by the trustees named, and those who shall succeed them, in trust for the benefit of named beneficiaries, to wit, an association of Baptist churches, and ministers and missionaries of the Baptist faith.

Plaintiffs maintain that this devise and bequest falls within section 17 of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18), and entitles the heirs at law and next of kin to the excess above one-half of the estate.

Section 17 of the Decedent Estate Law provides: “No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more.” (Originally by Laws of 1860, chap. 360.)

This statute, being a limitation upon the right of a testator to dispose of his property, is not to be applied to a devise or bequest, unless such gift comes plainly within the statutory limitation.

These residuary devises and bequests, although charitable, are not to a “ society, association or corporation, in trust or otherwise,” but are to trustees, upon whom the testator has conferred active powers and duties to keep and preserve the realty, with the power to sell the same, and to keep the funds of the estate invested in bonds and mortgages, and to use the income towards the maintenance of certain churches, ministers and missionaries of the Baptist denomination. This is clearly a devise to individuals for charitable uses, and not within the purview of the statute of 1860. (Allen v. Stevens, 161 N. Y. 122.) The property is permanently in the trustees, the income to he used for specific purposes. Where the trustees named are to turn over the subject of the trust to charitable corporations, such beneficiaries are virtually legatees, and a different rule applies. (Jones v. Kelly, 170 N. Y. 401.) Our Legislature did not design to prevent income as such from going to charitable purposes. Such gifts are not subject to our statutes against perpetuities. (Matter of Shattuck, 193 N. Y. 446, 450, and cases cited.) Mr. Vreeland’s will directs the trustees named to execute, themselves, a continuing trust, and vests in the trustees a lasting title to the property so devised.

The equities are with the designated beneficiaries. The testator left no child, grandchild or parent. The widow, who was the only, one holding a relation to the testator to benefit by the statute, approved this testamentary trust, and asks that it be sustained. Plaintiffs, who had no legal claim upon the testator’s bounty, should, therefore, be held to their strict legal rights.

I advise that the judgment in favor of the defendants be affirmed, with costs.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Judgment affirmed, with costs.  