
    Thomas T. Read et al., Resp’ts, v. George G. Williams et al., Ex’rs, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed February 24, 1891.)
    
    I. Will—Trust—Powers.
    Testatrix gave the residue of her estate to “ such, charitable institutions and in such proportions as my said executors by and with the advice of * * * shall choose and designate.” Held, that whether considered as a trust, or a power in trust, there being no designated beneficiary of the power in trust capable of compelling its enforcement, it was void.
    3. Same—Equitable conversion.
    The court below held that the heirs of the testatrix were excluded under the doctrine of equitable conversion from any interest as such in the real estate. Held, error; that the expression in the will ‘ ‘ after the same shall have been duly converted into money ” was not intended as a direction for an absolute conversion, but only one for the purposes of the will to accomplish an easy division among the corporations to which' it was to be given, and as the gift failed the conversion ceased.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiffs, entered after trial at special term.
    
      J. Edward Swanstrom, P. H. Vernon, John E. Parsons, Fordham Morris and Manley A. Raymond, for app’lts; Charles A. Jackson, for resp’ts.
    
      
       Reversing, in part, 37 N. Y. State Rep., 505.
    
   Andrews, J.

The jurisdiction of a court of equity to entertain an action in behalf of the next of kin of a testator for the construction of a will disposing of personal estate, where the disposition made by the testator is claimed to be invalid or inoperative for any cause, .was asserted in Bowers v. Smith. 10 Paige, 200, and was maintained in Wager v. Wager, 89 N. Y., 161, and in Holland v. Alcock, 108 id., 312; 14 N. Y. State Rep., 761.

It is true that in such cases the next of kin claim in hostility to the' will, but the executors, in case the disposition made by the testator is invalid or cannot take effect, hold the personalty upon a 'resulting trust for those entitled under the statute of distributions, and thereby the jurisdiction to bring an equitable action for construction and to have the resulting trust declared by the court attaches as incident to the jurisdiction of equity over trusts.

The Code of Civil Procedure, § 1866, has extended the remedy so as to include suits for construction of devises in behalf of heirs ' claiming adversely to the will, and it would not be consistent with the spirit of this legislation to narrow the jurisdiction in cases of bequests of personalty.

The case of Chipman v. Montgomery, 63 N. Y., 221, contains expressions which,-considered independently of the facts of the case, may seem adverse to this view, but, as was said by Rapallo, J. , in Wager v. Wager, supra, “ the plaintiffs there had on their own showing no present interest in the property, and might never have any.” The case of Horton v. Cantwell, 108 N. Y., 255; 13 N. Y. State Rep., 615, was one also where the plaintiff had no interest in the ultimate disposition of the estate by the provisions of the will which was assailed, even if held invalid, and the court, decided that she could not maintain the action.

It is not really contended that the provision in the third paragraph of the will, and the modification thereof in the second paragraph of the third codicil, setting apart a trust fund to be perpetually kept by the executors and trustees, and their successors, and directing the application of the income for cemetery purposes, can be upheld. These provisions are manifestly void, as involving an unlawful suspension of the absolute ownership of personal property.

The principal question in the case relates to the validity of the residuary clause in the second codicil. That clause is as follows: “Eleventh. After the payment and discharge of my just debts, (if any there be), funeral expenses and expenses of administration, and after all legacies and bequests mentioned in my last will and testament, as modified by my codicils, shall have been paid in full, if thereafter there shall be any residue and remainder of my estate and property, I give and bequeath such residue and remainder, after the same shall have been duly converted into, money, as follows, viz., to such charitable institutions and in such proportions as my executors, by and with the advice of my friend, Rev. John Hall, D. IX, shall choose and,designate.”

Subsequent to the death of the testatrix and prior to the commencement of this action the executors, with the advice and approval of Dr. Hall, made a written choice and designation of certain incorporated charitable institutions organized or existing under the laws of this state, authorized to take real and personal property by devise and bequest, among whom they directed the residuary estate to be divided. It will be noticed that the particular donees of the gift are not designated in the will. They could not be known until the executors should select, in the manner pointed out, the particular charitable institutions which should take the bequest. The range of selection was unlimited except that the appointees were to be institutions of charity, and perhaps, also it is implied that they were to be incorporated charities, because a provision is made that the institutions selected shall be under no disability to accept the legacy. But beyond this there was no limitation whatever. The selection was not confined to. charitable institutions in this state or in the United States. If the power was valid the executors, with the approval of Dr. Hall, might appoint the gift to charitable institutions anywhere in this: country or in foreign countries.

The will did not vest the title to the property in anyone pending the exercise of the power of, appointment. It was not given to the executors, nor was it given to any particular charitable institution which could be pointed out or ascertained at the death of the testatrix. If the property, under the will, vested anywhere,, it was in the whole aggregate incorporated institutions of the whole world, capable of taking by devise or bequest, subject to being divested in favor of such particular charities as should thereafter be designated by the executors. The question presented is not an original question in this court. It was decided adversely to the defendants in the case of Prichard v. Thompson, 95 N. Y., 76. There is between that case and this no distinction in principle. In that case the legal title to the fund was vested in the executors in trust. In this case the executors were given simply a power in trust, without clothing them in terms with the legal title to the fund to be distributed. But this makes no legal distinction.

The point of the decision in Prichard v. Thompson is that while the law recognizes the right of a testator by will to create powers of appointment and selection, and will sustain dispositions •of property made pursuant thereto although the testator himself did not designate the particular individuals in whose favor the power should be exercised, nevertheless that this right is subject to the limitation that the testator must himself designate the class of persons in whose favor the power may be exercised with sufficient certainty so that the court can ascertain who were the objects of the power, and that a power to select the beneficiaries from among all the members of the community, or all corporations of a particular class, wherever they may exist, however numerous, is void for indefiniteness. Such a power is distinctly in contravention of the policy of the statute of wills. It substitutes for the will of the testator the will and discretion of the donees of the power and makes the latter controlling in the disposition of the testator’s property. That can not fairly be said to be a disposition by the will of the testator with which the testator had nothing to do, except to create an authority in another to dispose of the testator’s property according to the will of the donee of the power, with no limitation except that the distribution shall be made among corporations to be selected from a large class of corporations, wherever existing, answering the description in the “will.

The statute of powers does not define-all the purposes for which a power over property may be created. It recognizes the existence of powers of appointment and selection which were well known to the common law. But, as pointed out in the opinion of Van Brunt, 0. J., in the opinion of the general term, the statute presupposes that a power of selection must be so defined in respect of the objects that there are persons who can come into court and say that they are embraced within the class, and demand the •enforcement of the power, and the same principle is recognized in the provision that “ if the trustee of a power with a right of selection shall die leaving the power unexecuted, its execution shall be decreed in equity for the benefit of all persons designated as objects of the trust.” 1 R. S., 734, § 100.

It would be manifestly impracticable for the court to ascertain in respect of the will in question what corporations constituted the whole class of charitable institutions mentioned in the will, or to •decree the execution of the power for the benefit of the numerous •class embraced in the description. The difficulty in this case is not avoided because the power of selection has in fact been exercised nor because it has been exercised in favor of corporations which if they had been the direct objects of the testator’s bounty would have been entitled to take. The vice lies in the unauthorized power. What has been. done under it is in a legal sense immaterial. The validity of the power depends upon its nature and not upon its execution. The heirs and next of kin of the testatrix derive their title under the law of descents and distribution and their rights attached immediately on the death of the testatrix to any part of the estate not validly disposed of by the-will. If the power attempted to be created by the will was valid their rights, whatever they were, were subject to it. If invalid and there was no valid alternative disposition by the testator of' the residue, they immediately became entitled. This question was considered by Rapallo, J., in Holland v. Alcock, Ex'r, supra, 323, and it is unnecessary to further elaborate it.

We are of opinion that the court below erred in holding that the heirs of the testatrix are excluded under the doctrine of equitable conversion from any interest as such in the real estate of the testatrix remaining undisposed of. The testatrix intended to dispose of her whole estate, which consisted both of real and personal property. By the original will she gave the residue after satisfying charges and legacies to certain specified corporations, “ after the same shall have been duly converted into money.” By the seventh clause of the will she directed the executors to sell and convert into cash all her real estate, “ and also to do all and other acts and things which may be proper and requisite in law for the purpose of and to accomplish the due payment of the bequests and the carrying out all of the provisions in this my last will and testament contained.”

By her second codicil she revoked the residuary clause in the will and substituted the power to the executors to dispose of the residue, to which reference has been made, and in the gift to the institutions to be designated she uses the same language as in the gift to the corporation in the will, viz.: “ after the same ” (her estate) “ shall have been converted into money.” It seems to be quite clear that the conversion was directed for the purposes of the will. She may reasonably have supposed that it would be more convenient that the corporations should take their respective interests as money and not as land. The personal estate was largely in excess of the sum required to pay charges and legacies, outside of what was given by the residuary clause. The direction to sell the real estate apparently could have bad no purpose except to accomplish an easy division of the residuary estate among the corporations to which it was to be given. The gift failing, the purpose of the conversion ceased, and the direction to sell the real estate was no longer imperative. The conversion, of course, was not directed for the purpose of distribution of the estate as money among the net of kin. The testatrix never intended that they should take it in any form. The case falls within the general principle, declared in many cases, that a power of sale in a will, however peremptory in form, if it can be seen that it was inserted in aid of a particular purpose of the testator, or to accomplish his general scheme of distribution, does not ipso facto operate as a conversion, where the scheme or purpose fails by reason of illegality, lapse or other cause. In that case the property retains its original character, and it goes to the heir or next of kin as real estate or personalty, as the case may be. Hotting short of a clear intention, to be collected from the will, that the land shall be sold and converted into money before division, whether the particular purpose fail or not, will be sufficient in equity to change the character of the property. In England even this is not sufficient to exclude the heir in the absence of an express gift of the proceeds away from him. Fitch v. Weber, 6 Hare, 145; Hopkinson v. Ellis, 10 Beav., 169; Taylor v. Taylor, 3 De G., M. & G., 190; Williams on Exrs., vol. 1, 613, et seq.

In this country the courts do not seem to hold so strict a doctrine.

The result is that the judgment should be reversed on the appeal of the infant defendant, Kate Haddock, so far as it adjudges an equitable conversion, and in other respects it should be affirmed.

All concur.  