
    PRESTON et al. v. HOWK et al.
    (Supreme Court, Appellate Division, Fourth Department.
    March, 1896.)
    1. Devise to Church—Validity.
    Though a church incorporated under Laws 1813, c. 60, authorizing it to hold real estate in a limited amount, subsequently changed the form, of its government, and was thereafter known as the “Presbyterian Church of Ontario Center,” a devise to the trustees of said church was valid, where there was no other church in that town known or called by that name, and the testatrix was a member and a regular attendant upon th& services of said church until a few weeks before her death.
    
      2. Same—Trust.
    A devise of the residue of an estate to the trustees of an incorporated church, to be used by them to help defray the expenses of preaching the gospel in said church, vested said estate in the corporation, and did not create a trust in said trustees.
    3. Same—Power to Sell—Construction.
    A provision in a will authorizing the executor to convert the estate undisposed of into money, and to sell and convey the lands in fee simple, did not create a trust in the executor, but it was thereby intended to grant a power to enable the executor to carry out the residuary devise to said church.
    4. Costs—Allowance—Discretion—Review.
    An order granting an additional allowance of costs will be sustained, where there are no conflicting affidavits in the record, and it .does not appear that the court abused its discretion.
    Appeal from a judgment entered in the clerk’s office of Wayne county on the 1st of July, 1895, and also an appeal from an order made the 24th day of June, 1895, granting an additional allowance of $150 to the defendants. The action was tried at a special term in Wayne county, and the court made findings from which it appears that Julia A. Freer, of the town of Ontario, in Wayne county, was, in her lifetime, seized in fee simple and in possession ■of the real estate described in the plaintiffs’ complaint, and that she died on the 13th day of September, 1891, leaving no parent, husband, or child, her •surviving, but leaving as her only surviving heirs at law one brother, who is one of the plaintiffs, and two sisters, one of whom is plaintiff Jane E. Jackson, and the other a defendant herein, Delia 0. Hicks. On the 23d day of August, 1891, the testatrix executed her last will and testament, which is fully set out in the complaint. The will was admitted to probate by the surrogate of Wayne county, and letters testamentary were issued to the defendant John O. Howk, who qualified and entered upon the discharge of his duties as executor. It is found as a fact that Oscar F. Whitney, Edwin Harrison, and Edson Howk are trustees of the church society known as the “Presbyterian Church of Ontario Center.” It is also found “that the said society was originally incorporated as a Congregational society, but that thereafter its form of government was duly changed to Presbyterian, and it has since been known as and called a Presbyterian church. It was the church attended by the testatrix in her lifetime, and the only one of that name in the vicinity of her late residence.” It was also found that the personal estate of the testatrix was more than sufficient to discharge in full all debts, claims, and legacies against said estate. The court found as conclusions of law, viz.: “(1) That the fourteenth clause of said last will and testament of Julia A. Freer, by which the disposition of the residuum of her estate is attempted, is not invalid by reason of the creation of an unlawful suspension of the power of alienation of the estate bequeathed, but that, on the contrary, said clause operates to vest such estate in the trustees of the Presbyterian Church (or Congregational) of Ontario Center, subject to the contingent interest therein of the Board of Home Missions and the Board of Foreign Missions of the Presbyterian Church, and to the duty imposed upon said trustees by the fifteenth clause of said will. (2) That said fourteenth clause is not void by reason of the fact that said will was executed within two months of the death of the testatrix. (3) That the plaintiffs are not entitled to the relief demanded in their complaint.” And the court ordered judgment dismissing plaintiffs’ complaint, and, in accordance with the findings, the judgment was entered from which the plaintiffs appeal.
    Appeal from special term, Wayne county.
    Action by George H. Preston and another against John O. Howk, as executor of the last will and testament of Julia A. Freer, deceased, and others, for partition and for other relief. «From a judgment rendered at special term for defendants, and from an order granting an additional allowance to defendants, plaintiffs appeal. Affirmed.
    
      Argued before HARDIN, P. J., and FOLLETT, WARD, and -GREEN, JJ.
    W. Martin Jones, for appellants.
    S. B. McIntyre, for trustees of the church.
    H. R. Durfee, for respondent Howk.
   HARDIN, P. J.

Plaintiffs’ complaint particularly described two parcels of real estate owned by the deceased at the time of her death, and is framed for the purpose of having partition of such real estate between the plaintiffs and the defendant Delia C. Hicks, who are alleged to be the heirs at law, and to whom it is alleged the property ■of the testatrix descended. The prayer of the complaint, among other things, asks that “the pretended devise to the trustees of the Presbyterian Church at Ontario Center,” mentioned in the will, “be declared null and void, and that the said instrument, so far as the said bequest to said trustees and to said church is concerned, be adjudged to be invalid, and in no wise to affect the disposition of her said real estate.” It demands further relief according to the usual •course and practice in an action to partition. Upon the trial, proof was given tending to show that in 1844 the Ontario Congregational .Society was organized at Ontario Center, and that in 1868 the form of the government of the church was changed, voluntarily, from Congregational to Presbyterian, and that thereafter the church was known .as “The Presbyterian Church.” It was shown by the evidence that there was no other church known or called “The Presbyterian Church” in the town of Ontario, and that the testatrix for many years attended that church; being a member thereof, and being “a resident and regular attendant upon the church services” until a few weeks before her death. Apparently the church was incorporated under the statute of 1813 (chapter 60, Laws 1813). Union Church v. Pickett, 19 N. Y. 482. The statute of 1813, as amended by chapter 79 of the Laws of 1875, gave to the church power to—

“Take and receive by bequest or devise any real or personal estate, the net .annual income of which shall not exceed $12,000. Subject, however, to the provisions of chapter 300 of the Laws of 1800, entitled, ‘An act relating to wills.' ”

See, also, chapter 443 of the Laws of 1875.

In the fourth section of the act of 1875 it was provided, viz.:

“The trustees of any church, congregation or religious society, incorporated under said section three of the above mentioned act, shall administer the temporalities thereof, and hold and apply the estate and property belonging thereto, and the revenues of the same, for the benefit of such corporation. :‘,i :1s * )>

The proofs given at the trial were sufficient to warrant the finding that the Congregational Society had changed to Presbyterian, and that the Presbyterian Church mentioned in the will was the one known in law as the “Ontario Congregational Society,” and that the misnomer does not affect or defeat the intention of the testatrix. Lefevre v. Lefevre, 59 N. Y. 440. In the fourteenth clause of the will-the testatrix uses this language:

“I give and bequeath the use or interest of all the rest, residue, and remainder of my estate, both real and personal, to the trustees of the Presbyterian Ghurch at Ontario Center, N. Y., which is to be used by them to help-defray the expense of preaching the gospel in said church from year to year. * * * ”

It is contended in behalf of the appellants that the effect of the language used is to create a trust in the trustees named. It is quite apparent, however, that the language used, which has just been quoted, together with the other language found in the will, was employed by the testatrix for the purpose of giving to the corporate-body the property mentioned in the will, and that the property vested: at the close of the testator’s life. In re Wesley (Sup.) 17 N. Y. Supp. 304; Currin v. Fanning, 13 Hun, 458; Institution v. How’s Ex’rs, 10 N. Y. 84; Chamberlain v. Chamberlain, 43 N. Y. 424; Wetmore v. Parker, 52 N. Y. 450. In the further provisions of the will the testatrix authorized her executor to convert all of her estate, real and personal (not otherwise disposed of), into money, and gave to him authority to bargain, sell, and alien, in fee simple, all of her lands,, and gave to him full power and authority to grant, bargain, alien, sell, and convey and assure “all the same lands to any person or persons, and their heirs forever, in fee simple.” This language does not seem to be used for the purpose of creating a trust in the executor for the benefit of another person. It seems to be used for the purpose of granting a power to enable the beneficiary to have and enjoy the estate of the testatrix intended to be carried by the residuary clause of her will to the church. The language of the will is sufficient to confer upon the residuary legatee “the use and interest of all the rest, residue, and remainder of the estate, both real and personal”;: and by the use of this language there was a gift, by implication, of' the corpus of the estate to the church, for the purpose of aiding the corporation in the discharge of some of its corporate functions. Bird v. Merklee, 144 N. Y. 544, 39 N. E. 645; Paterson v. Ellis, 11 Wend. 298; Smith v. Post, 2 Edw. Ch. 526; Hatch v. Bassett, 52 N. Y. 359-362. That case was approved in Locke v. Trust Co., 140 N. Y. 146, 35 N. E. 578; Whitney v. Whitney, 63 Hun, 59, 18 N. Y. Supp. 3, and cases cited at page 78, 63 Hun, and page 3,18 H. Y. Supp. The foregoing views lead to the conclusion that the special term committed no error in stating the conclusions of law found in its decision, and the judgment thereon should be affirmed.

2. Upon affidavits presented at a special term held by the same-judge who heard the case on the merits, an application was made for an additional allowance. Affidavits were read in behalf of the defendants tending to show the value of the property involved, and a moderate allowance was authorized, to wit, $150. Ho conflicting, affidavits appear in the record, and we discover nothing, upon an inspection of the affidavits used, and the circumstances disclosed by the appeal book, indicative that the special term abused its discretion. We therefore should sustain its order. Burke v. Candee, 63 Barb. 552; Delcomyn v. Chamberlain, 48 How. Prac. 413; Tolman v. Railroad Co., 31 Hun, 403; Gooding v. Brown, 21 Wkly. Dig. 47; Brake Co. v. Prosser, 88 Hun, 348, 34 N. Y. Supp. 398.

Judgment and order affirmed, with two bills of costs, payable out of the estate. All concur.  