
    GROSS v. MOORE et al.
    (Supreme Court, General Term, First Department.
    April 14, 1893.)
    1. Wills—Construction—Trusts.
    Testatrix, after having made absolute gifts of property, in apt and technical words, gave the residue of her estate to her executor, “to be distributed by him according to the instructions given him by me.” It was not shown what instructions, if any, were given. Held, that die language negatived the idea that the executor was to take the property as his own.
    2. Same.
    It also negatived the idea that he was vested with a discretion to appoint the beneficiary.
    3. Same—Validity of Trust.
    Testatrix gave the residue of her estate to her executor, “to be distributed according to the instructions given him” by her. The only evidence of such instructions was to the effect that he was to dispose of the property as he chose, so that her brother and sisters could get none of it. Held, that the trust was void for indefiniteness of the beneficiaries.
    4. Same.
    Where a testamentary trust is attacked as void for indefiniteness of the beneficiaries, it cannot be objected that such a construction mil allow the estate to go to the next of kin, whereas the trust was intended to be created for the purpose of preventing them from inheriting it.
    5. Evidence—Hearsay.
    Where a will gives property to the executor, “to be distributed according to instructions given him” by the testator, testimony of a "witness that the executor told him that testator gave him certain instructions is inadmissible, as hearsay.
    Motion for new trial on exceptions.
    Action by John L. Gross against William L. Moore, administrator with the will annexed of Harriet Gross, deceased, and others, to declare the residuary clause of the will invalid, and for distribution of the residuary estate to plaintiff and others as testatrix’s next of kin. There was a decree in accordance with the complaint, and the defendant administrator moves for a new trial on exceptions.
    Exceptions overruled, and motion denied.
    Argued before VAN BRUNT, P. J., and O’BRIElSr and FOLLETT, JJ.
    Cephas Brainerd, Jr., (Cephas Brainerd, of counsel,) for plaintiff. H. Kettell, for defendant Moore.
    Timothy Davenport, for other defendants.
   O’BRLEjN, J.

By this action it is sought to invalidate the residuary clause in the will of Harriet Gross, deceased, which reads as follows:

“X give, devise, and bequeath unto my executor hereinafter named all the rest, remainder, and residue of my personal estate, to be distributed by him according to the instructions given him by nie.”

Upon the trial it was not shown, either by writing or by paroi, what these instructions were. The only testimony looking to this end was that given by a son of the executor, who testified that his father told him “that he had received instructions from Harriet Gross to dispose of that residuary portion as he pleased, ‘only so that neither my brother nor my sisters can get any part of it.’” This evidence was objected to on the grounds (1) that this witness •could not testify to communications received by him from his father, the executor, as to oral communications made by the testatrix to the executor; (2) that paroi declarations made by the testatrix as to her intention are not admissible in construing the will; (3) that the executor, if living, could not have testified to such oral communications, under section 829 of the Code; and (4) that such evidence was purely hearsay.

We think that the objection to such evidence was valid upon the last ground stated, if upon no other, but it is not necessary to place our decision upon this ruling, because, if regarded as competent evidence, and full force and effect be given to it, it would not change the conclusion to be reached; for it will be observed that no suggestion is made as to who were to be the beneficiaries under the residuary clause, the testimony being directed to showing that the testatrix expressed a wish, and gave instructions, to exclude her brother and sisters, towards whom, it would appear, she occupied an unfriendly attitude. If, therefore, the clause is to be construed as a trust, and not as an absolute gift to the executor, personally, then the only trust suggested is one to keep the property out of the hands of the next of kin. That such a trust is neither valid, nor within those enumerated and permitted by statute, requires no discussion. Ás said in Holland v. Alcock, 108 N. Y. 312, 16 N. E. Rep. 305:

“The existence oí a valid trust, capable of enforcement, is consequently essential to enable one claiming to hold as a trustee to withhold the property from the legal representatives of the alleged donor.’’

And upon the theory of a trust it is void for uncertainty, because no beneficiaries are designated, nor is there anything from which the court can determine who were intended to be the beneficiaries of the testatrix’s bounty. In Tilden v. Green, 130 N. Y. 29, 45, 28 N. E. Rep. 880, the court say:

“The remark of Judge Wright 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 decisions, it is that a trust without a certain beneficiary, who can claim its enforcement, is Aroid,’ has been repeated and reiterated by recent decisions of this court, (Prichard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 N. Y. 312, 16 N. E. Rep. 305; Read v. Williams, 125 N. Y. 560, 26 N. E. Rep. 730;) and- the objection is not obA’iated by Hie existence of a power in tire trustee to select a beneficiary, unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain who were the objects of the power.”

It is unnecessary, however, to further pursue the question of whether this is or is not a trust, for we do not think that the appellant relies upon this ground; his contention being that the executor, under the bequest, takes the absolute interest in the property bequeathed. It is insisted that the language used gave to the executor, in trust for himself, an absolute interest; that the beneficiary was definite and certain, and he was to do with the property as he pleased. That this contention is unsound, we think is apparent, not only from the wording of the residuary clause itself, but by a consideration of the entire will. We think that the language directing that the residuum “be distributed by him according to the instructions given him by” the testatrix negatives the view that the executor was to keep the property as his own. It equally negatives the idea that he was vested with a discretion which, had it been conferred, might have induced the court to construe this into a power of appointment. Apart, however, from this clause itself, if resort be had to the entire will it will lie found that, when the testatrix intended to make an absolute gift of her property, she used apt and technical language to express her intention. Thus, with respect to the nine bequests given in other portions of the will, she-adds, after designating the legatee, that he is to take “absolutely and forever.” In the residuary clause the language used is entirely different, and is consistent only with the view that he was to take the property, not personally, and for his own use, but as executor, in trust for distribution in such proportions, and to such bene^ ficiaries, as she, by her instructions to him, had designated. Having reached the conclusion, therefore, that by the residuary clause a beneficial interest therein is not given to the executor personally, and it being clear that the trust attempted to be created is void for-uncertainty, the learned trial judge was correct in his conclusion, that as to that portion of the estate the testatrix died intestate.

It is suggested that the effect of this construction is to permit the very persons to obtain a large portion of her estate whom the testatrix intended to exclude. We are not responsible, however, for her failure to carry out her verbally expressed intention to exclude her brother and sisters, who were her only heirs and next of kin. Under the law, these would take property which by will had' not been otherwise disposed of; and as the law requires a valid' disposition of one’s property, in order to prevent his heirs and next of kin from taking, an intention to exclude them cannot be rendered' effectual where the person, without having made any disposition of' the property, with respect thereto dies intestate. We are of opinion, therefore, that the exceptions should be overruled, and the motion denied, with costs and disbursements. All concur.  