
    John W. Rushmore, Ex’r, Resp’t, v. Frank Rushmore et al., App’lts, and Mary Rushmore, Resp’t.
    
      (Supreme Court, General Term,, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    1. Will—Conditions annexed to bequest.
    By the will of testator a certain sum was bequeathed to executors in trust, provided that if when the cestui que trust attained twenty-five years of age he possessed such character and business habits as to assure the executor that he would make a proper use of the money, it should be paid to him. Held, that this was simply a condition precedent to the vesting of the legacy, and was not unreasonable.
    3. Same—Construction of bequest.
    By the codicil a clause of the will was amended so that the children of a deceased niece should have an equal share with a nephew named in such clause, in which neither said children, or their mother, were named, to be equally divided between them, share and share alike. Held, that said children took as a class and not per capita.
    
    3. Same—Bequest to school district. ■
    Testator bequeathed a certain sum to the trustee and two of the taxpayers paying the largest tax in a school district, to be invested, and one-half the income used to purchase school books and clothing for indigent children of the district and the balance for teacher’s wages. Held, that the bequest was not void for uncertainty, and was sustainable under 2 R. S. (6th ed.), 53, § 15.
    Appeal by Frank Eushmore from so much of the judgment ■entered in Ontario county on the 12th day of February, 1890, on the decision of this court at special term, as limited the legacy given to him by the last will of Jeremiah Eushmore upon the condition that the legatee answer certain requirements made in the will in respect to his habits, character, etc.
    2. Appeal by the defendant E. Adelbert Adams, as trustee of school district Ho. 11 in the town of Farmington, from that part of the judgment by which a legacy to the school district was adjudged to be void for uncertainty both as to the trustee and beneficiaries.
    3. Also an appeal by the defendants G-eorge M. Adams and. Ida Harmon from the same judgment, declaring that they take a bequest per stirpes, and not per capita.
    
    
      S. B. McIntyre, for E. Adelbert Adams, trustee, and Frank Rushmore; John D. Lynn, for George M. Adams and Ida Harmon; Wm. H. Smith, for Mary Rushmore, deft aud resp’t; S. N. Sawyer, for pl’ff, resp’t
   Macomber, J.

This action is brought for the construction of the last will and testament of Jeremiah Rushmore.

In respect to the appeal of Frank Rushmore, it may be said, in brief, that the legacy of $3,000 to him mentioned in the 14th and 20th clauses of the will is plainly made payable not until he arrives at twenty-five years of age, and even then not until after the decease of the testator’s wife, Mary Rushmore; and provided, further, that he should possess such traits of character and business habits as to assure the executor, at the time of the payment of the money, that the legatee will make a prudent use of the gift. There is nothing ambiguous or uncertain in this part of the will. It requires no construction. It contains no unreasonable condition. It was but a condition precedent to the vesting of a legacy. Caw v. Robertson, 5 N. Y., 134.

An argument is addressed to us in behalf of the appellants, George M. Adams and Ida Harmon, by which it is claimed that these appellants take per capita and not per stirpes. The legacy to them is contained in item 22d of the will, which bears date the 25th day of February, 1886, and the 9th item of the codicil thereto which bears date the 7th day of March, 1888. They are not named in item 22d of the will, but the item of the codicil is as follows:

"9th. Item 22 of my said will is so changed, and I so direct, that the children of my niece, Helen Adams, have an equal share with my nephew, John W. Rushmore,- and others therein mentioned, to have and to hold the same, their heirs and assigns forever, to be divided equally between them, share and share alike.”'

Item 22 of the will is as follows:

“ All the rest and residue of my estate which shall remain after the decease of my wife, and the legacies hereinbefore mentioned are paid, I give and bequeath to my nephew John W. Rushmore, my niece Martha Briggs, my niece Eliza J. Briggs, Lucy Rogers, wife of Abram Rogers, Ella Sáwyer, wife of Henry H. Sawyer,, and my niece Catherine Packard, to be divided equally between them, share and share alike, to have and to hold the same, their heirs and assigns forever.”

The provisions in the will and codicil taken together show that the intention of the testator was to give to the children of his niece, Helen Adams, the same share of his estate which Helen Adams doubtless would have received had she been living at the time of the making of the codicil. As a class they were to receive an equal share with my nephew John W. Rushmore, * * * to be divided equally between them, share and share alike. ” In construing this part of the will the important considerations are that Helen Adams’ children were to receive an equal share with a certain nephew and that such share should be equally divided between such children, share and share alike. This language is determinate and unquestionable. These appellants together take only the same amount as John W. Rushmore.

The appeal taken by the trustee of school district Ho. 11 presents some difficulties. His claim in behalf of his district rests upon the nineteenth item of the will, which is as follows: I give and bequeath to the trustee and two of the taxpayers paying the largest school tax in district Ho. 11 in the town of Farmington, the sum of $2,000 to be safely invested by them, and one-half of the interest thereof to be annually used to purchase school books and clothing for the indigent children residing in said district, and one-half applied to pay for the wages of the teachers employed in .saifL district, but not to be used until the district has maintained school at least twenty-eight weeks in each year respectively.”

The learned justice at the trial has adjudged this provision of the will to be inoperative and void, because of its uncertainty, both in respect of the trustees charged with the duty of executing the trust, and of the beneficiaries therein named.

In regard to the trustee of school district Ho. 11, there can be no reasonable question made but that there was at the time of making the will, and at the time of bringing this action, a person, and but one person, answering that description. It does not appear in the printed record who the taxpayers paying the largest ■school district tax in this district are, but their names can be easily ascertained in any judicial inquiry that may be made. Even if this were otherwise, the statute, to which reference will presently be made, comes to the assistance of the testator and saves the legacy to the objects of his bounty.

In the revision and consolidation of the general acts relating to public instruction, passed May 2, 1864, and the various acts amending the same, there is a provision for the granting of certain bequests and devises for the benefit of common schools. VoL 2, p. 53, § 15 of the 6th ed. R S. By this statute “ real and personal estate may be granted, conveyed, devised, bequeathed and given in trust and in perpetuity or otherwise, to the state, to the superintendent of public instruction, for the support or benefit of common schools within the state, or within any part or portion of it, or of any particular common school or schools within it; and to any county, or the school commissioner or commissioners of any county, or to any city or any board or officers thereof, or to \ any school commissioner district or its commissioner, or to any town or supervisor of a town, or to any school district or its trustee or trustees, for the support and benefit of common schools within such county,' city, school commissioner district, or within any part or portion thereof respectively, or for the support and benefit of any particular common school or schools therein.”

Section 16. “Ho such grant, conveyance, devise or bequest ■shall be held void for the want of a named or competent trustee or donee, but where no trustee or donee or an incompetent one is named, the title and trust shall vest in the people of the state subject to its acceptance by the legislature; but such acceptance shall be presumed.”

Under this act the bequest that one-half of the interest of $2,000 shall be paid for the wages of the teachers employed in the district is divisible from the other portion of the bequest and is clearly valid under the statute already quoted. There is some-doubt, however, in respect to the provision for the payment of the other one-half of the interest for the purchase of school books and clothing for indigent children residing in the district But on the whole we are inclined to resolve the doubt in favor of the legality of the intention of the testator. If he had devoted one-half of the interest for the payment of school books for the use of indigent pupils in the district there would have been no question of its legality. But coupling the purchase of the necessary clothing for such children with the purchase of school books throws-some doubt upon the matter; for who shall tell how much may be devoted to the purchase of books and how much to clothing for the indigent scholars ? Among the powers of inhabitants of school districts assembling in any district meeting is “ to vote a tax not exceeding' twenty-five dollars in any one year for the purchase of maps, globes, blackboards and other school apparatus, for the purchase of text books and other school necessaries for the use of the poor scholars of the district.” Subd. 8 of § 16,' page 64, 2 B. S., 6th ed.

This shows that the subject matter of the expenditure for text books is cognizable by the school district;- and whatever the-school district by vote may lawfully raise by taxation ought to be deemed to be valid when contained in a last will. The statute shows that the purpose is worthy and legal. This bequest is not to the children of the school district, but it is to the school district, itself to enable it to defray such expenses as it might legitimately and lawfully incur and for which payment might be provided by' taxation upon a vote of the inhabitants of the district. ¡

We are not prepared to say that the expression “ other school necessaries for the use of poor scholars ” of the district, used in' the statute, which is a legitimate matter to provide, in addition to text books, for poor scholars, may not properly include the necessary clothing of indigent children, so as to enable them to avail themselves of the opportunities afíorded by the public schools. On the whole we are of the opinion that this provision of the will is not inimical to the objections made to it, and that it is capable of intelligent enforcement

We have examined the authorities cited by counsel in opposition to this view, viz.: In the Matter of the Will of O'Hara, 95 N. Y., 403; Bascom, v. Albertson, 34 id., 584; Levy v. Levy, 33 id., 97, and do not find in them any principle contrary to this conclusion, which we make rest almost entirely upon the language of the statute to which we have above called attention.

The judgment of the special term should in this respect be modified, with costs to the appellant, the trustee of the school district, payable out of the estate, and as so modified, affirmed.

Dwight, P. J., and Corlett, J., concur.  