
    SUPREME COURT
    Richard R. Bowker and others, as executors, &c., plaintiffs, agt. David A. Wells and others, defendants.
    
      Will—Construction of—Trust — When not raised on face of will—Mcyral obligation does mt creat a trust.
    
    The courts recognize a difference between the intent of a testator to create a legal direction on his devisee and the intent solely to create a moral obligation; the latter does not create a trust.
    While a secret trust to apply devised property to an illegal purpose will render the devisee a trustee for the heirs-at-law or next of kin, the trust-must be established in such a manner that if legal it would be binding upon the trustee.
    D. by her will gave the bulk of her estate to four persons, or such of them as might survive her and be of sound mind, absolutely, as joint tenants and not as tenants in common (expressing a wish although stating that it was not to be taken as a legal direction), the estate so bequeathed and devised should be applied by these four gentlemen as they might deem wise to the promotion in the United States of sound political knowledge. In an action to construe the will:
    
      Held, that the language of the will, if directed toward a purpose capable of legal enforcement, would not have created a trust, and as there is no promise shown de hors the will to apply the devised property to such purpose, the devise is valid and the devisees take the property absolutely as their own (O’Hara agt. Dudley, 95 N. Y., 403, distinguished).
    
    
      Kings Special Term, June, 1885.
    Action by the executors of the will of Jane M. Dugdale for a construction of the fifth clause thereof.
    The clause of the will under discussion was as follows: “Fifth. All the remainder of my estate, real and personal, together with the rents, issues and profits thereof, I hereby give, bequeath and devise to David A. Wells, of Norwich, Conn., and Richard Rogers Bowker,Worthington C. Ford and Edward M. Shepard, of the city of Brooklyn, or such of them as may survive me, and at the time of my death shall be sound in mind, as joint tenants, and not as tenants in common, to have and to hold to them, their heirs, executors, administrators and assigns, forever. I direct, however, that until after the death of two of them no one of them shall have any power to maintain actual partition or any other proceeding to set off or separate any individual share; but this shall not prevent or affect any sale or other disposition of the said remainder of my estate, or any part thereof, by the said four gentlemen, or any suit or proceeding to procure such sale or disposition; nor shall such direction prevent the release and conveyance by any one of the said four gentlemen to any of the others of his interest and estate in the said remainder of my estate.
    “ This bequest and devise I make absolute in order that there may be no legal or technical difficulty or embarrassment in effecting the end I desire, and having entire confidence that those four gentlemen will, although under no legal obligation so to do, observe my wishes; and my wish is (although this is not to be taken as a legal direction) that my residuary estate so bequeathed and devised, and any proceeds thereof, shall, under the name of £ The Richard L. Bugdale Fund,’ be applied as those four gentlemen, or such persons as they may associate with them, or a majority of them may deem wise, to the promotion in the United States of sound political knowledge and opinions. I should be especially glad if this fund could promote a work similar to that done by the Society for Political Education.
    “ This bequest and devise I make, first, because I have no near relations, my only relations being those residing abroad whom I have not known for many years, and because there are no persons having just claims on me for whom I have not properly provided; and, secondly, because I am greatly attached, as was my brother Richard (the memorial of some of whose work is found in the book called ‘The Jukes’), to the work which I have desired the four gentlemen last named to conduct.”
    
      Nelson S. Spencer, for plaintiffs.
    
      Samuel H. Ordway, for defendants’ residuary legatees.
    
      Coudert Brothers, for defendants Chanet and others, heirs and next of kin.
    
      C. & C. E. Tracy, for defendants Cuddon, heirs and next of kin.
   Cullen, J.

This case differs from O'Hara agt. Dudley both in the form of the action and in its facts. This suit is brought to construe the will of the testatrix, and the validity of the provisions of that will must be determined on the face of the will. The action in O’Hara agt. Dudley was to declare a trust in favor of the heirs in consequence of the promise made by the devisees, and the action was decided in favor of the heirs solely on account of such promise. Eo promise is alleged or shown in this case. Eor can there be said to be a trust raised on the face of the will, for the testatrix declares that she intends to make the gift absolute, and that there should be no legal obligation upon the devisees to comply with her wishes as to the eventual disposition of the property. As she has said in the plainest terms there shall be no trust, the courts cannot say there is such a trust. Further, there is no illegality or contravention of public policy in affecting the object she sought to attain. In this respect also the case differs from that which the court of appeals interpreted as the intention of the testator in O’Hara agt. Dudley.

Miss Dugdale wished no accumulation of the fund; she suggested no restraint upon its absolute disposition for any period but two lives in being, and not necessarily for that time. In fact, if there were a trust it would be inoperative because the beneficiaries would be indefinite. But this the testatrix knew, and she did not intend to east upon the courts the duty of seeing that her wishes were carried out, but left that solely to the sense of propriety her devisees might possess. If that sense of propriety does not dictate a disposition of the fund in accordance with the testatrix’s wishes, that is exactly what the testatrix intended they should do in that contingency, though she hoped the contingency would not occur. In such case it cannot be said that any fraud is practiced on the testatrix, for the devisees never made any promise to her.

Without reviewing the decided cases at length, two principles seem established by them : First. The courts recognize the difference between the intent of a testator to create a legal direction on his devisee and the intent solely to create a moral obligation, and that the latter does not create a trust (1 Jar. on Wills, p. 385). Second. That while a secret trust to apply the devised property to an illegal purpose will render the devisee a trustee for the heirs at law or next of kin, the trust must be established in such manner that if legal it would have been binding upon the trustee (1 Jar., p. 233).

As is my judgment the language of the will, if directed toward a purpose capable of legal enforcement, would not have created a trust, and as there is no promise shown die hors the will to apply the devised property to such purpose, it follows that the devise under discussion is valid, and that the devisees take the property absolutely as their own.

Costs of all parties to be paid out of the fund. ■  