
    HOLLAND v. ALCOCK.
    
      N. Y. Court of Appeals;
    February, 1888.
    [Reversing Holland v. Smyth, 40 Hun, 872.]
    
      Will, validity of bequest for masses.] A bequest (although of personalty) to executors in trust for the purpose of having prayers offered in a church, to be by them selected, for the repose of the soul of testator and others, is void.
    
      Trust, validity.] Apart from the principles on which a trust can be sustained as a charity, an ascertainable"beneficiary is essential to constitute a trust; and even if the gift in question were in form to pay over the fund to such Roman Catholic church (without limitation as to place) as the executors might select, to defray the expense of offering such prayers, the objection of indefiniteness of beneficiary would remain. [Distinguishing Power v. Cassidy, 79 H. Y. 602; and following Pritchard v. Thompson, 95 N. Y. 76).
    
      The same.] The willingness of the trustee to execute a trust cannot obviate the objection that there is no ascertainable beneficiary.
    
      The same.] It seems that such a gift, if, made directly to a corporation entitled to take and administer a charity, would be valid ; for the purpose is not under our law objectionable as a superstitious use.
    
      Charities.] The history of the law of charities in England and in this State reviewed. ■
    Appeal from a judgment entered upon an order of the general term of the supreme court in the second department, reversing an interlocutory judgment entered upon an order of the special term overruling a demurrer to a complaint, interposed by the defendant, Alcock.
    The plaintiffs, as the . heirs at law and next of kin of Thomas Gunning, deceased, brought this action against the defendants, Frederick Smyth and Henry Alcock, as executors and trustees, etc., of said Thomas Gunning, to have the third clause of the last will and testament of said testator declared void. The third clause of the testator’s will is in the following words:
    
      “ All the rest, residue and remainder of my estate I give and bequeath to my said executors to be applied by them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul, and the souls of my family, and also the souls of all others who may be in purgatory.”
    The defendant, Alcock, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and contended that the third clause of the will was valid.
    
      The General Term, reversing the special term, and holding the bequest valid, said: “ The objection to the clause more seriously urged is, that it creates a trust which is void for indefiniteuess. But we do not think this -view can be supported, and we think the rule was correctly stated by Mr. Justice Cullen, who passed on this will and upheld this clause. [That opinion is reported in 3 Row. Pr. R. 8. 106.]
    “We do not pass on the question whether this gift could be sustained as one to a charitable use. We rest our decision on the doctrine enunciated by Judge Cullen, £ that there is a certain class of testamentary dispositions, the object of which is solely the benefit, real or supposed, of the testator, or the gratification of his desires, which, if trusts are not charities, nor do they have any beneficiary, yet, nevertheless, are unquestionably valid. The precise legal doctrine on which they rest, the cases do not state. I think a provision for masses for the benefit of the testator’s soul is exactly akin to a provision for his funeral or monument. While decent burial is given by the law out of even an insolvent’s estate, I think the monument is more an adjunct or concomitant of burial than the masses. ... I think all the directions are of the same general character, and equally good in law ’ ” (Reported below in 40 Run, 372).
    
    From the judgment of the general term the plaintiffs appealed.
    
      
      E. H. Benn, for the appellants.
    
      J. Newton Williams and David McClure, for the respondents.
   Rapallo, J.

The third clause of the testator’s will is in the foliowihg words:

“All the rest, residue and remainder of my estate, I give and bequeath to my said executors, .to be applied by. them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul, and the souls of my family, and also the souls of all others who may be in purgatory.”

The validity of this clause is the question now presented for adjudication. The action is brought by five nieces and a nephew of the testator who claim to be his next of kin and heirs at law and, as such, entitled to his residuary estate in case the disposition thereof, atlempted to be made by the third clause of the will, is adjudged to be invalid. The estate consists wholly of personal property and amounted at the time of the testator’s death, in 1882, to about the sum of' $28,000. By the second clause of his will the testator devised and bequeathed all hjs estate, real and personal, to his executors, in trust for the uses and purposes set forth in the will, which were to pay certain legacies amounting in the aggregate to about $16,500, and to apply the residue as directed in the third clause, before recited. That clause must" therefore be regarded as creating or attempting to create a trust of personal property for the purpose specified. The plaintiffs claim that the trust thus attempted to be created is void ; that as to the residuary estate' the testator died intestate, and that distribution thereof should be made among the next of kin, etc. The defendant Alcock, one of the executors, demurred to the complaint. At Special Term the demurrer was overruled and the plaintiffs had judgment. On appeal to the General Term that judgment was reversed and judgment was rendered in favor of the defendant cock, thus affirming the validity of the third clause of the will. The plaintiffs now appeal.

Some of 'the points involved in the case now before us were passed upon in the late ease of Gilman v. McArdle (90 N. Y. 451). In that case the deceased had in her life-time placed in the hands of the defendant a sum of money on his promise to apply it to certain purposes during the life-time of the deceased and of her husband, and after the death of both of them, to pay their funeral expenses, etc., and to expend what should remain in procuring Homan 'Catholic masses to be said for the repose of their souls. This court declined to decide whether a valid trust had been created in respect to tho surplus, there being no ascertained or ascertainable beneficiary who could enforce it, and the .majority of the court expressly reserved its opinion upon that question, disposing of the ease upon the ground that a valid contract inter vivos, to be performed after the death of the promisee, had been established; that there was nothing illegal in the purpose for which the expenditure was ■contracted to he made, and that there was no want of definiteness in the duty assumed by the promisor; and “we held that as there had been no breach of the contract, but the ■promisor was ready and willing to perform, he was entitled, .as against the legal representatives of the promisee, to retain the consideration.

The point upon which the majority of the court in the .case last cited reserved its decision is now again presented. There is no contract inter vivos, hut the will expressly bequeaths the fund in question to the executors, in trust for the purposes therein specified, one of which is to apply the residuary estate to the purpose of Laving prayers offered in a Homan Catholic church for the repose of the souls of the testator, of bis family, and of all others who may he in pur.gatory.

It is claimed that this disposition contains all the clean on ts of a valid trust of personal property; that there are definite and competent trustees; that the purpose of the trust is lawful, and that it is sufficiently definite to he capable of being enforced by a court of equity, as the court could decree the payment of the fund to a Roman Catholic clmrcli, or churches, for the purpose directed by the will. But if all this should be conceded there is still one important element lacking. There is no beneficiary in existence, or to come into existence, who is interested in, or can demand the execution of the trust. Fo defined or aseertainble living person has or ever can have any temporal interest in its performance, nor is any incorporate church designated so as to entitle it to claim any portion of the fund. ■

The absence of a defined beneficiary is, as a general rule, a fatal objection to any attempt to create a valid trust. It is said by Weight, J., in Levy v. Levy (33 N. Y. 107), that “ if there is a single postulate of the common law established by an unbroken line of decision, it is that a trust without a certain beneficiary who can claim its enforcement, is void, whether good or bad, wise or unwise.” It is only in regard to the class of trusts known as charitable,” that a different rule has ever prevailed in equity in England, and still prevails in some' of our sister States. Whether the English doctrine of charitable uses and trusts prevails in this State will be considered hereafter. In all other cases, the rule as stated by Judge Weight is universally recognized both in law and in equity. It is claimed that the trust now under review is not void according to the general rules of law for want of a defined beneficiary, because the trust is for the purpose of having prayers offered in a Roman Catholic church to be selected by the executors. It is contended that this is in effect a gift to such Roman Catholic church as the executors shall select, inasmuch as the money to be expended for the masses would, according to the usage, be payable to the church or churches where they were to be solemnized, and therefore as soon as the selection is made the designated church or churches will be the beneficiary or beneficiaries, and entitled to the payment; that the trust is therefore in substance to pay the fund to such Roman Catholic church or churches, as the executors may select, and that a duly incorporated church,' capable of receiving the bequest, must be deemed to have been intended. Passing the criticisms to which the assumptions contained in this proposition are subject, and considering the trust as if it had been in form to pay over the fund to such Roman Catholic church as the executors might select, to defray the expense of offering prayers for the dead, the objection of indciinitenoss in the beneficiary would not be removed. The case of Power v. Cassidy (79 N. Y. 602), is relied upon by the respondents as supporting their claim. In that case the bequest was of a fund to the executors in trust to be divided by them among such Roman Catholic charities, institutions, schools or charities in the city of New York, as a majority of the executors should decide, and in such proportions as they might think proper. The opinion of the court by Miller, J., holds that giving full force and effect to the rule that the object of the trust must be certain and well defined; that the beneficiaries must be either named or capable of being ascertained within the rules of "law applicable to such cases; and that the trusts must be of such a nature that a court of equity can direct their execution, and making no exception in favor of charitable uses, the bequest should be upheld as coming within the general rule; that the clause designates a certain class of objects of the testator’s bounty, to which he might have made a valid, direct bequest, and that by conferring power upon his executors to designate the organizations which should be entitled to participate, and the proportion which each should take, he did not impair the legality of the provision, so long as the organizations referred to had an existence recognized bylaw and were capable of taking and could be ascertained ; that the evidence showed that at the time of the execution of the will, arid of the testator’s death, there were in the city of New York incorporated institutions of the class referred to in the will, and that a portion of these had been designated by a majority of the executors ; that none but incorporated institutions could lawfully have been selected, and that even if the executors had failed to make a selection or apportionment, the court would have had power to decree the execution of the trust, there being no difficulty in determining what institutions came within the class described by the testator.

It must be observed that in- the case cited the beneficiaries were confined to Bo man Catholic institutions of a certain class in the city of New York. These were necessarily limited in number. By 1 R. S. 734, § 97, it is provided that a trust power does not cease to be imperative when the grantee has the right to select any and exclude others of the persons designated as the objects of the trust. By section 99 that when the terms of the power import that the estate or fund is to be distributed between the persons designated in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons in exclusion of the others. By section 100 that if the trustee of a power with the right of selection shall die leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons designated as objects of the trust; and by section 101 that where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery. Begarding these provisions as declarations ,of general rules applicable to all trust powers, and governing trusts of personal as well as real property, the decision in Bovvers v. Cassidy in no manner infringes upon the rule that the designation of a beneficiary, entitled to enforce its execution, is essential to the validity of a trust, and the only point as to which the correctness of that decision is open to any doubt, is whether, in fact, the beneficiaries in that case were sufficiently defined and capable of ascertainment to enable a court of equity to enforce the trust in their behalf. The view taken in respect to that point was certainly very liberal, but the court has in subsequent cases repeatedly announced that the decision was not to be extended, and it is evident that, without a material extension, it cannot be made to cover the present case. Here if the church or churches from among which the selection is to be made are to be regarded as the beneficiaries, they are not limited, as in Powers v. Gassidy, to a Boman Catholic church or churches in the city of Hew York, but include all the Boman Catholic churches in the world. Ho one church, or the churches of any particular locality, can claim the benefit of the bequest. In this respect tlie case at bar is analogous to that of Pritchard v. Thompson (95 N. Y. 76), where the bequest was of a sum of money to the executors to be distributed by them “ among such incorporated societies, organized under the laws of the state of Hew York, or the state of Maryland, having lawful authority to receive and hold funds upon permanent trusts for charitable or educational uses,” as the executors or the survivors of them might select, and in s'uch slims as they might determine. This bequest was held void because of the indefiniteness of the designation of the beneficiaries. The opinion was written by the same learned judge who delivered the opinion in Powers v. Cassidy, and by him distinguished from that ease on the ground that in Powers v. Cassidy the class of beneficiaries was specially' designated and confined to the limits of a single city and to a single religious denomination, so that each one could readily be ascertained, and each had an inherent right to apply to the court to sustain and enforce the trust; while in the case at bar every charitable and educational institution within two states was included. This case (Pritchard v. Thompson) also establishes that the power to the executors to select the beneficiary, or beneficiaries, does not obviate the objection of the omission of the testator to designate them in the will, unless the persons or corporations, from among whom the selection is to be made, are so defined and limited that a court of equity would have power to enforce the execution of the trust, or in default of a selection by the trustees, to decree an equal distribution among all the beneficiaries.

This discussion has proceeded in answer to the claim that the church or churches, whore the masses were to be solemnized, were the intended objects of the testator’s bounty, and the beneficiaries of the trust; but the correctness of that position is by no means conceded. It is, however, not necessary to discuss it. If the bequest had been of a sum of money to an incorporated Homan Catholic church or churches, duly designated by tlie testator, and authorized by law to receive such bequests for the purpose of the solemnization of masses, a different question would arise. But such is not this case. The bequest is to the executors in trust to be by them applied for the purpose of having prayers offered in any Homan Catholic clmrcli they may select.

It has been argued that the absence of a beneficiary entitled to enforce the trust is not fatal to its existence, where the trustee is competent and willing to execute it, and the purpose is lawful and definite; that it is only' where the trustee resists the enforcement of the trust that the question of the existence of a beneficiary entitled to enforce it arises.

I have not found any case in which this question has been adjudicated, or the point has been made; and it does not seem to be presented on this appeal. The case now before us arises on a demurrer by the defendant Alcock, one of the executors, to the complaint, on the ground that it shows no right in the plaintiffs. The complaint alleges that the defendant Alcock, together with Frederick Smyth, were named as executors in the will; that the defendant Alcock did not qualify and has never acted as executor or as trustee of the alleged trust sought to be created by the third danse, nor participated in any form in carrying out the same; but that his co-executor Frederick Smyth has taken possession of the whole estate as such executor and trustee. Smyth is not a party to this appeal. It comes up on the demurrer of Alcock alone, and there is nothing in the complaint to show that he is willing to execute the trust, but on the contrary it shows that he has in no manner acted or qualified himself to act therein.

But aside from these considerations I do not think that the validity or invalidity of the trust can depend upon the will of the trustee. If the trust is valid, he can be' compelled to execute it; if invalid, he stands, as to personal property undisposed of by the will, as trustee for the next of kiu, and the equitable interest is vested in them immediately on the death of the testator, subject only to the payment of his debts and the expenses of administration. When a trust is attempted to be created without any beneficiary entitled to demand its enforcement, the trustee would, if the trust property were in his possession, have the power to hold it to his own use without accountability to any one and contrary to the intention of the donor, but for the principle that in such case a resulting trust attaches in favor of whoever would, but for the alleged trust, be equitably entitled to the property. This equitable title cannot on any sound principle be made to depend upon the exercise by the trustee of an election whether he will or will not execute the alleged trust. In such a ease there is no trust in the sense in which the term is used in jurisprudence. There is simply an honorary and imperfect obligation to carry out the wishes of the donor, which the alleged trustee cannot be compelled to perform, and which he has no right to perform, contrary to the wishes of those legally or equitably entitled to' the property, or who have succeeded to the title of the original donor. The existence of a valid trust capable of enforcement is consequently essential to enable one claiming to hold as trustee, to withhold the property from the legal representatives of the alleged donor. A merely nominal trust, in the performance of which no ascertainable person has any interest, and which is to be performed or not as the person to whom the money is given, thinks fit, has never been held to be sufficient for that purpose.

It is contended, however, that charitable uses and trusts are not subject to the general rules of law upon this subject, and that the bequest. now under consideration is of that class. The distinguishing features of this class of trusts, as administered in England from an early period, were that they might he established through trustees, who might consist either of individuals or a corporation, and in the case of individual trustees, they might hold in indefinite succession and be self-perpetuáting, and the funds might be devoted in perpetuity to the charitable purposes indicated by the donor, while private trusts were not permitted to continue longer than a life, or lives in being, and twenty-one years and a fraction afterwards. The persons to be benefited might consist of a class, though the individual members of the class might be uncertain. The scheme of the charity might he wanting in sufficient definiteness or details to admit of its practical administration, and in such case a court of equity would order a reference to a master in chancery to devise a scheme for its administration which should as nearly as possible conform to the intentions of the founder of the charity, and thus was called into operation what was known as the ey pres doctrine. These charitable trusts were regarded as matters of public concern, and were enforcable by the attorney general, although in many cases the court would compel their performance without his intervention at the instance of a town or parish, or of its inhabitants, or of an individual of the class intended to be benefited, such as one of the poor, or maimed, etc. In a comparatively recent casé, argued in this court, many instances ' of ancient charities were cited which had been enforced by the court of chancery in England, such as Cooke’s Charity, decided A. D. 1552, whereby the testator ordered the purchase of lands and the erection of a free grammar school; Bond’s Charity, decided A. D. 1553, in which the testator’s will, dated in 1506, directed that there should be established a Bede house at Babloclc, and there should be built a chapel and therein one mass to be said on Sunday, and therein to be ten poor men and a woman to dress their meat and drink, the priest to he a brother of Trinity Guild and Corpus Christi Guild, etc., etc.; Howell’s Charity, decided in 1557, whereby the testator directed his executors to provide a rent of four hundred ducats yearly forever, to be appropriated each year to promote the marriage of four orphan maidens, honest and of good fame. This trust appears to have been enforced in chancery upon a bill filed by certain orphan maidens in behalf of themselves and others. We were also referred to numerous other charities, for the support of the poor, for erection of almshouses, hospitals, maintaining schoolmasters, keeping churches in repair, and other similar purposes.

In the case of Bond’s charity, cited above, a license was granted by King Henry VII., in 1508, to the testator’s son and others, to grant lands to support a priest to sing mass, and' -twelve poor men and one woman to say prayers and obsequies for the king, the brothers and sisters of the guild, and for their souls, and especially for the soul of the testator, Thomas Bond, in the then newly-erected chapel at Bablocli. It appears that religions or pious uses were, when the Roman Catholic religion prevailed in England, recognized'as charities.

In 1484, Henry Barton devised to the rector of St. Mary and the churchwardens and their successors, certain lands at a perpetual rent, payable to the guild of Corpus Christi, etc., so that said rector of St. Mary’s, and 1ns successors, or their parish priests, when they should say prayers in the pulpit of the church, should pray for the souls of Richard Barton, the testator’s father, of Dionesia, his mother, and for the souls of their children, and all the faithful deceased, and in case they should neglect to do so for two days after the proper time, that the master and wardens of said guild, etc., should levy a distress upon said lands for twelve pence, by way of penalty, and retain such distress until such prayers should be said.

This property appears to have been afterwards seized by the crown, under the statute of Ckauntries (I Ed. V1.), and granted by Edward YI. to one Stapleton ; but the rector, etc., of St. Mary’s having re-entered, it was made to appear in a litigation between them and the successors in interest of Stapleton, that no prayer for souls had been made, nor had the rents of the premises been devoted to any manner of superstitious use within the space of six years, and more next before the first year of the reign of King Edward YI., since which time the rents and profits had been employed by the parson and churchwardens of the parish in good uses and purposes. The case was tried in the 22d and 23d Eliz., and the parish was allowed to retain the laud for general charitable purposes.

The purposes for which charities were established in England were so numerous and varied, and the learning contained in the books on that subject is so vast, that it Avould be futile to attempt to go into it in detail, or to do more than briefly refer to their history so far as'is necessary to determine whether the English doctrine of charitable uses and trusts, as distinguished from private trusts governed by the general rules of law, still has any place in the jurisprudence of this State.

The statute of 1st Edward YI., a. d. 1547, known as the statute of Chauntries, recited that a great j>art of superstition and errors in Christian religion had been brought into the minds of men by reason of their ignorance of their true and perfect salvation, through the death of Jesus Christ, and by devising vain opinions of purgatory, and masses to be done for those who are departed, which doctrine is maintained by nothing more than by the abuse of Trentalles, Chauntries and other provisions for the continuance of such blindness and ignorance; that the amendment of the same, and converting them to good and godly uses, such as the erection of grammar schools, the education of youth, and better provision for the poor cannot, in the present Parliament, conveniently be done, nor be committed to any person than to the King who, by the advice of his most prudent council, can and will most wisely alter and dispose of the same. It then recites the act of 37 Henry VIII. for the dissolution of colleges, chauntries, etc., and enacts that all colleges, free chapels and chauntries, not in the actual possession of the late or present king (with certain specified exceptions), and all their lands and revenues are declared to be in the actual seizure and possession of the present king, without office found, and that all sums of money, etc., •which by any conveyance, will, devise, etc., have been'given or appointed in perpetuity towards the maintenance of priests, anniversaries or obits, be vested in the king. Certain colleges, free chapels and chauntries, such as those within the universities of Oxford and Cambridge, and others specified in the statute, were exempted from its provisions, but the king was empowered to alter the chauntries in the universities. In this manner property which had been devoted by the donor to uses which had cometo be regarded as superstitious, were through the king put to charitable uses which were deemed lawful, and this policy was carried out by many decrees of the court of chancery.

The statute of 39 Eliz. a. d. 1597, authorized j)ersons owning estates in fee simple during twenty years next ensuing the passage of the act, by deed enrolled in the high court of chancery, to found hospitals, houses of correction, almshouses etc., to have continuance forever, and place therein a head and members and such number of poor as they pleased ; and such institutions were declared to be corporations, with perpetual succession. It will be observed that this was but a temporary act which gave power only for twenty years next ensuing its passage, to ''found the charities mentioned. This statute also contained a provision entitled “an act to reform deceits and breaches of trust touching lands given to charitable uses,” which recited that divers institutions had been founded, some by the queen and her progenitors, and some by other godly and well-disposed people, for the charitable relief of poor, aged and impotent people, maimed soldiers, schools of learning, orphans, and for other good, charitable and lawful purposes and intents, and that lands and goods given for such purposes had been unlawfully converted to the lucre and gain of some few greedy and covetous persons; and then proceeds to provide for the issue of commissions out of chancery to inquire into those wrongs, and decree the observance of the trusts according t.o the intent of the founders thereof.

This statute was followed by that of 43 Eliz., ch. 4, “To redress the misemployment of lands, goods, and stocks of money heretofore given to charitable uses.” This act is known as the Statute of Charitable Uses and was at one time, together with that of 39 Eliz. regarded as the foundation of the law of charitable uses and of the jurisdiction of chancery in cases of charities. But the reports of the record commission established in 1819, have disclosed that the jurisdiction had been exercised and charity laws administered by the courts of chancery from a much earlier period. The act, however, throws light upon what were at the time considered and recognized as charitable uses, for they am enumerated in the preamble as follows, viz.: the relief o;i the poor, the maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and schools in universities; the repairs of bridges, ports, havens, causeways, churches, sea banks and highways; the education and preferment of orphans ; the maintenance of houses of correction ; the marriage of poor maidens ; the aid of young tradesmen,, handi-craftsmen and persons decoyed ; the relief or redemption of prisoners or captives ; the aid of poor persons in the payment of taxes.

The act then provides for the issuing of commissions by the lord chancellor of England or the chancellor of the Duchy of Lancaster, and the redress of breaches of trust, as in the statute 39 Eliz.

In this enumeration • of charitable uses there is none which would cover the present ease, and indeed under the statute of chauntries and other statutes prohibiting superstitious uses, it would not have been recognized in England as valid as a charity or otherwise.

But assuming, as perhaps we ought to assume, that before gifts for the support of priests, ehauntries, etc., came to be regarded as superstitious uses, they were within the principles of charity, and that they became illegal only by virtue of the statutes against superstitious uses, in this State, where all religious beliefs, doctrines, and forms of worship are free, ^ so long as the public peace is not disturbed, the trust in question cannot be impeached on the ground that the use to which the fund was attempted to be devoted was a superstitious use. The efficacy of prayers for the dead is one of the doctrines of the Iioman Catholic Church, of which the testator was a member, and those professing that belief are entitled in law to the same respect and protection in their religious observances thereof as those of any other denomination. These observances cannot be condemned by any court, as matter of law, as superstitions, and the English statutes against superstitions uses can have no effect here (Const. U. S. Amendment, art. I; Const, of N. Y. art. I. § 3). If in other respects the bequest was by the law of England valid as a “charitable” use, and the English doctrine of charitable uses prevails in this State, the objection to its validity on the ground of indefiniteness of the trust, perpetuity and the absence of an ascertainable beneficiary, can be overcome. Otherwise they must prevail, at least so far as relates to the absence of a beneficiary which is sufficient to dispose of the case without reference to the other points. We will, therefore, treat the bequest as a charitable use.

The principal cases in this State, in which the doctrine of ’ charitable uses has been discussed, are Williams v. Williams (8 N. Y. 525); Owens v. Missionary Society (14 Id. 380); Beckman v. Bonsor (23 Id. 298); Downing v. Marshall (23 Id. 366); Levy v. Levy (33 Id. 97); Rose v. Rose Beneficent Asso., 1863 (not reported); Bascom v. Albertson (34 N. Y. 584); Burrill v. Boardman (43 Id. 254).

These cases were argued by counsel of eminent ability, and in the arguments and opinions display a depth of learning and thoroughness of research which render it useless to attempt a discnssion 'of the question liere as an original question, or to do more than summarize the main points upon which the arguments turned, and, ascertain how the case stands upon those authorities. So lately as the case of Burrill v. Boardman (43 N. Y. 254) the question was argued as still an open one, and that case was decided on the ground that the trust was valid, without resorting to the doctrine of charitable uses. Comstock, J., in a note to the eleventh edition of Kent’s Commentaries (Vol. 4, pg. 305, note 2), states that the essential requisites of a, valid trust are (1) a sufficient expression of an intention to create a trust; (2) A beneficiary who is ascertained or capable of being ascertained; that the appointment or non-appointment of a trustee of the legal estate is not material; that if the trust or beneficial purpose be well declared, and if the beneficiary is a definite person or corporation capable of talcing, the law itself will fasten the trust upon him who has the legal estate, whether the grantor, testator, heir or next of kin, as the case may be, and that outside of the domain of charitable uses no definiteness of purpose will sustain a trust if there be no ascertained beneficiary who has a right to enforce it. And in delivering the opinion of this court in Beckman v. Bonsor (23 N. Y. 310) the same learned judge says that the joint authority of the cases of Williams v. Williams (8 N. Y.) and Owens v. Missionary Society (14 Id.) establishes the propositions (1) that a gift to charity is maintainable in this State if made to a competent trustee, and if so defined that it can be executed, as made by the donor, by a judicial decree, although it may be void according to general rules of law for want of an ascertained beneficiary ; (2) that in other respects the-rules of law applicable to charitable uses are within those which appertain to trusts in general; (3) that the cy pres power, which constitutes the peculiar feature of the English system, and is exercised in determining gifts to charity where the donor has failed to define them, and in framing schemes of approximation near to or from the donor’s true design, is nnsnitcd to our institutions and has no existence in the jurisprudence of this State on this subject; but he declined to re-examine these eases, as he concludes that the law of charities could not be invoked in the case then under consideration. The same learned judge, however, in the subsequent case of Bascom v. Albertson (34 N. Y. 584), in which he acted as counsel, reviewed at length the question whether the English law of charitable uses prevailed to any extent in this State.' His argument was preserved in print and was used in Burrill v. Boardman (43 N. Y. 254), and in that argument, referring to what he had said in his opinion in Beekman v. Bonsor, as to the proposition that a gift to charities, if well defined and made to a competent trustee, was maintainable in this State although it might be void according to general rules of law for want of an ascertained beneficiary, and to the similar remark in his opinion in Marshall v. Downing (23 N. Y. 382), characterizes his own remarks in those two cases as a most inconsiderate repetition, as a dictum of a proposition laid down by another judge, calling attention to the fact that the repetition was a mere dictum, because in the two cases in which it was made the trusts were held void.

The case of William v. Williams (8 N. Y. 525), is the leading case in the court of last resort of this State in support of the doctrine that the English law of charitable uses is in force in this State, and it fully supports the proposition that it is. In that case the testator, after making a bequest to an incorporated church, bequeathed the sum of $6,000 to Zophar B. Oakley and other individual trustees, with power to perpetuate their successors, as a perpetual fund for the education of the children of the poor who should be educated in the academy of the village of Huntington, with directions to accumulate the fund up to a certain point and apply the income in perpetuity to the education of the children whose parents’ names were not upon the tax lists. The opinion was delivered by Denio, J., and concurred in by four of the other judges, three judges dissenting. The opinion held that this bequest, by the general rules of law, would be defective and void as a conveyance in trust for the want of a ecstui qne" trust in whom the equitable title could vest, and could be sustained only by force of that peculiar system of law known in England under the name of the law of charitable uses; that the objection that "the bequest assumed to create a perpetuity would also be fatal if the Revised Statutes applied to gifts for charitable purposes. But the learned judge held, that according to the laws of England, as understood at the time of the American revolution,' and as it still existed, devises and bequests for the support of charity or religion, though defective for want of such a grantee or donee as the rules of law required in other cases, would, when not within the purview of the Mortmain act, be supported in the court of chancery; that the law of charitable uses did not originate in and was not created by the statute 43 Eliz. c. 4, but had been known and recognized and enforced before that statute, and was engrafted upon the common law and consequently was not abrogated by the repeal in- this State of the statute, 43 Eliz., in 1788 (Laws of 1788, eh. 46, § 37) ; that the provisions of the Revised Statutes did not affect property given in perpetuity for religious or charitable purposes, and that consequently the bequest to Zophar B. Oakley and others, in trust for the children of the poor, was valid.

In Owens v. Missionary Society (14 N. Y. 380) the testator bequeathed tiie residue of his estate to the. “ Methodist General Missionary Society',” an unincorporated association existing when the will was made and when it took effect in 1834, but which subsequent to the testator’s death became incorporated. In a suit between the incorporated society and the next of kin of the testator, the bequest was held void, and that the next of kin were entitled to the residue. Opinions were delivered by Selden, J., and Benio, J. Judges A. S. Johnson, T. A. Johnson, Hobbabd, and Weight, concurred in the opinion of Selden, J., which held that the bequest ivas not valid as one made to the association for its own benefit, because of its incapacity to take, nor could it be sustained as a charitable or religions nse, as it was not accompanied by any trust as to the application of the fund. Also that where there was no trustee competent to take, our court of chancery had no jurisdiction to uphold a trust for a charitable or religious purpose, and it distinguished the case from Williams Williams, on the ground that there the bequest was to trustees competent to take. Although the tenor of the opinion is against following the example of the English chancellors in applying a peculiar and partial system of rules to the support of charitable gifts, Judge Seldeh disavows the intention of denying the power of courts of equity in this state to enforce the execution of trusts created for public and charitable purposes in cases where the fund is given to a trustee competent to take, and where the charitable use is so far defined as to be capable of being specifically executed by the authority of the court, even although no certain beneficiary, other than the public at large, may be designated. Dehio, J., ■while re affirming the decision in Williams v. Williams, placed his vote upon the ground that the trust was not one which could be executed by the court as a charitable use, the purposes of the society being to diffuse more generally the blessings of education, civilization and Christianity throughout the United States and elsewhere ;” that although trusts in favor of education and religion had always been considered charitable uses, and were recognized as such in the statute of Elizabeth, the advancement of civilization generally was not classed among charities, and the whole fund might be disposed of for purposes promotive of universal civilization, which still would not he charitable objects in the understanding of the lawn Six of the judges were of opinion ithat the charity was not sufficiently defined by the terms of the will, and that the judgment in favor of the next of kin should be affirmed on that ground.

The next ease in order is Beekman v. Bonsor (23 N. Y. 298). In that case the amount to be given to the charitable purpose, as well as the manner in which the fund was to be applied, was left to the discretion of the executors. They renounced, and it was held that the trust was incapable of execution; that the cypres power as exercised in England in cases o£ charity had no existence in this State, and that the next of kin were entitled to the fund. Numerous points were discussed in the opinion, which was by Comstock, J., and he there made the dictum, which he afterwards recalled, that a gift of charity which would be void by the general rules of law for the want of an ascertained beneficiary would bo upheld by the courts of this State if the thing given was certain, if there was a competent trustee to administer the fund as directed, and if the charity itself was precise and definite.

Downing v. Marshall (23 N. Y. 366) held that a devise and bequest to an unincorporated missionary society were void on the same grounds as in the case of Owens v. Missionary Society.

Up to this time the doctrine of the case of Williams v. Williams, as to the validity of trusts for charities, even in the absence of a definite beneficiary, had been acquiesced in. But in Levy v. Levy (33 N. Y. 97) it was vigorously assailed by Wbight, J., who discussed the question anew whether the English doctrines of trusts for charitable uses were law in this State. That learned judge expressed a decided opinion that they were not (p. 105, et seq.); that that peculiar system of jurisprudence proceeded in disregard of rules deemed elementary and fundamental in other limitations of property, in upholding indefinite charitable gifts, by the exercise of chancery powers and the royal prerogative; that it was not the exercise of the ordinary jurisdiction of chancery over trusts, but a jurisdiction extended and strengthened by the prerogative of the crown and the statute of 43 Eliz. over public and indefinite uses defined in that statute as charities ; that even in England it had been deemed necessary to restrain and regulate, by Act of Parliament, the creation of these indefinite charitable trusts by the statutes of mortmain and other restrictions, and it cannot be supposed that the system was deliberately retained in this State freed from all legislative restriction. He calls attention to the fact that in 1788 the Legislature of this state repealed the statute of 43rd Eliz., the statute against superstitious uses, and the mortmain acts ; that at that time it was supposed that the law for the enforcement of charitable trusts had its origin only in the statute of Elizabeth, and argues that the Legislature of 1788 in thus sweeping away all the great and distinctive landmarks of the English system, must have intended that the effect of the repeal should he to abrogate the entire system of indefinite trusts, which were understood to be supported by that statute alone, and that the whole course of legislation in this State indicates a policy not to introduce any system of public charities except through the medium of corporate bodies; that in 1784 the general law for .the incorporation of religious societies had been enacted, and that before and contemporaneously with the repeal of the statute of Elizabeth and the statutes of mortmain, special acts incorporating such societies were passed, and" other acts have been passed creating or authorizing corporations for various religious and charitable purposes, in all of which ai’e to be found limitations upon the amount of property to be held by such societies, thus indicating a policy to confine within certain limits the accumulation of property perpetually appropriated, even to charitable and religious objects; that the absolute repeal of the statute of Elizabeth and of the Mort-main acts was wholly inconsistent with the policy thus indicated, unless it was intended to abrogate the whole law of charitable uses as understood and enforced in England. The opinion then refers to the course of legislation in this State following the repeal of the English statutes authorizing corporations for charitable, religious, literary, scientific and benevolent purposes, and in all cases limiting the amount of property to be enjoyed by them. This legislation is claimed to disclose a policy differing from the British system, and absolutely inconsistent with the supposition that uses for public or indefinite objects and of unlimited duration can be created and sustained without legislative sanction. Since the case of Williams v. Williams,'decided thirty-five years ago, there has been no adjudged case in this court which supports a charitable gift on the principles enunciated by Judge Denio in pronouncing that decision. Of course this observation applies only to the indefinite charity which the case included, and not to the gift in favor of a religious corporation.

After the decision of that ease, the struggle in this court for the overthrow of charitable uses began in the case of Owens v. The Missionary Society (14 N. Y. 380). The opponents of such trusts had for their justification the repeal in 1788 in this State of all the British Statutes which upheld such trusts in England, and the substitution of a charity system maintained by our statute laws in .the form of corporate charters containing, by legislative enactment, power to receive, hold and administer charitable gifts of every variety known in the practice of civilized communities, and our statute of uses and trusts, defining the trusts which may lawfully be created. This statute has been held binding "on the courts, although of course, it ceases to operate when the Legislature charters a corporation for a charitable purpose, with power to take and-hold property in perpetuity for such purpose. .From the case of Owens v. Missionary Society (14 N. Y. 380), through the cases of Marshall v. Downing (23 Id. 366); Levy v. Levy (33 Id. 97); Bascom v. Albertson (34 Id. 584); Burrill v. Boardman (43 Id. 254); and Holmes v. Mead, decided in 1873 (52 Id. 332), the struggle was continued, and the announcement definitely made, in the latest of those cases, that the controversy was closed by the adoption of the principles enunciated in the said last mentioned case. In Williams v. Williams, Judge Denio, whose great learning and ability are universally acknowledged, maintained as the basis of his conclusion in favor of charitable trusts as tlie law of this State, that they came to us by inheritance from our British ancestors, and as part of our common law. That particular postulate being finally overthrown and the British statutes having been repealed at the very origin of our State government, we should be a civilized State without provision for charity if we had not enacted other laws for ourselves. But charity, as a great interest of civilization and Christianity, has suffered no loss or diminution in the change which has been made. The law has been simplified, and that is all. Instead of the huge and complex system of England, for many generations the fruitful source of litigation, we have substituted a policy which offers the widest field for enlightened benevolence. .The proof cf this is in the great number of charitable institutions scattered throughout the State. It is not certain that any political state or society in the world offers a better system of law for the encouragement of property limitations in favor of religion and learning, for the relief of the poor, the care of the insane, of the side and the maimed, and the relief of the destitute, than our. system of creating organized bodies by the Legislative power, and endowing them with the legal capacity to hold property which a private person or a private corporation has to receive and hold transfers of property. Under this system many doubtful and obscure questions disappear and give place to the more simple inquiry whether the grantor or devisor of a fund designed for charity is competent to give; and whether the organized body is endowed by law with capacity to receive, and to hold and administer the gift.

In Williams v. Williams (supra), in maintaining a gift for pious uses to an incorporated religious society, Judge Denio assigned the reasons which have been universally approved since that time ; and they are summed up by saying, that charitable limitations of property in favor of corporations, competent by statute law to hold them, are valid or invalid on the same grounds as other limitations of property between natural persons, and are referable to the general system of law which governs in the ordinary transactions of mankind. From his reasoning in the other branch of the ease before him, it appears that he had not reached the conclusion established in the later cases, namely, that with ns charity is found in our corporation laws, general and special, which have been extended so as to embrace the purposes heretofore known and recognized as charitable, and which are continually extending and improving so as to meet the new wants which society in its progress may develop.

As the result of the foregoing views, the judgment of the supreme court at general term should be reversed, and that of the special term affirmed.

All the judges concurred. 
      
       The eases on the cy pres power are reviewed in a recent monograph by Robert Hunter McGrath, jr., being the prize essay of the University of Pennsylvania for the year 1887.
     