
    Mary Holland et al., Appl’ts, v. Henry Alcock, impl'd, etc., as Ex’rs of Thomas Gunning, deceased, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed February 7, 1888.)
    
    Will—Attempted trust—When and for what reason void—Prayers for the dead.
    When the testator by his will devised and bequeathed all his estate, rea- and personal; to his executors in trust for the uses and purposes set forth in the will, which were to pay certain legacies, amounting to about $17,000, and to apply the residue, about $11,000, “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,” Held, that the trust thus attempted to be created by the second clause of the will is void, because there is no beneficiary in existence or to come into existence, who is interested in or can demand the execution of the trust; and no defined or ascertainable 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.
    
      E. H. Benn and Thos. J. Keegham, for app’lts; J. Newton Williams and Daniel McClure, for resp’ts.
    
      
       Reversing 40 Hun, 373.
    
   Rapallo, J.

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 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, attempted 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 his 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 Alcock, 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 case of Gilman v. McArdle. (99 N. Y., 451). In that case the deceased had in her lifetime 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 Roman 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 the 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 case upon the ground that a valid contract inter vivas, 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 be 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 vivas, but 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 having prayers offered in a Roman Catholic church for the repose of the souls of the testator, of his family, and of all others' who may be in purgatory.

It is claimed that this disposition contains all the elements 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 be capable of being enforced by a court of equity, as the court could decree the payment of the fund to a Roman Catholic church, 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. No defined or ascertainable 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 indefiniteness in the beneficiary would not be removed. The case of Power v. Cassidy (79 N. Y., 602), is relied upon by 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 may 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 by law and were capable of taking and could be ascertained; that the evidence showed that at the time of the execution of the will and of the testators’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 Roman 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 a 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. Regarding 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 Powers v. Cassidy, in no manner infringes upon the rule that the designation of the 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. Cassidy, to a Roman Catholic church, or churches, in the city of New York, but include all the Roman Catholic churches in the world. No one church, or the churches of any particular locality can claim the benefit of the bequest. In this respect the case at bar is analogous to that of Prichard 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 New 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 such sums 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 case on the ground that in Powers v. Cassidy the class of benificiaries 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 (Pitchard 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 trustee to decree an equitable distribution among all the beneficiaries.

This discussion has proceeded in answer to the claim that the church or churches where 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 Roman Catholic church or churches, duly designated by the testator and authorized by law to receive such bequests for the purpose of the solmenization 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 Roman Catholic church 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 clause, 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 1 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 kin, 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 a 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 case 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 be 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-perpetuating, 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 fife or lives in being and twenty-one years and a fraction afterwards. The persons to be benefited might consist óf a class, though the individual members of the class might be uncertain. The scheme of the charity might be wanting in sufficient definiteness or details to admit of its practical administration, and in such cases 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, com form to the intentions of the founder of the charity, and thus was called into operation what was known as the Cypres doctrine. These charitable trusts were regarded as matters of public concern, and were enfoTcible 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 case 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 Babcock, 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 be a brother of Trinity Guild and Corpus Christi Guild, etc., etc. Howell's Charity, decided m 1551, whereby the testator directed his executors to provide a rent of 400 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 the erection of alms-houses, 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 Babcock. It appears that religious or pious uses were, when the Roman Catholic religion prevailed in England, recognized as charities.

In 1434, Henry Barton devised to the rector of St. Mary’s, ■and the church wardens and their successors, certain lands at a perpetual rent payable to the Guild of Corpus Christi, •etc., so that said recter of St. Mary’s, and his 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 chauntries (1 Ed. VI), and granted by Edward VI 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 oi superstitious use within the space of six years and more next before the reign of King Edward VI, since which time the rents and profits had been employed by the parson and church wardens of the parish in good uses and purposes. The case was tried in the 22d and 23d Elizabeth, and the parish was allowed to retain the land 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 would be futile to attempt to go into it in detail, or to do more than briefly refer to their history, so far asi s 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 VI, A. D., 1547, known as the ■Statute of Chauntries, recited that a great part 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 the 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 notin 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 the uses which had come to be regarded as supertitious, 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, ch. 6, authorized persons 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, alms-houses, 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 thechauntries 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 to 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 cñaritable 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 are enumerated in the preamble as follows, viz., the relief of 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, handicrafts men 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 case, and indeed, under the statute of chaunfcries and other statutes prohibiting superstitious uses, it would not have been recognized in England as valid as á charity or otherwise.

But assuming, as perhaps we ought to assume, that before gifts for the support of priests, chauntries, 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 Roman 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 superstitious, and the English statutes against superstitious uses can have no effect here. Con. U. S. Amend., art. 1; Con. of N. Y., art., 1, § 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 objections 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., 524); Owens v. Missionary Society (14 id., 380); Beekman v. Bonsor (23 id., 298); Downing v. Marshall (23 id., 366); Levy v. Levy (33 id., 97); Rose v. Rose Beneficient 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 discussion of the question here as an original question, or to do more than to summarize the main points upon which the arguments turned, and ascertain how the case stands upon these 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, p.. 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 taking, the law itself will fasten the trust upon him who has the legal estate, whether the grantor, testator, heir or next or 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 Beekman 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 N. Y.), establishes the propositions, (1) that a gift of 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 use's are within those which appertain to trusts in general; (3) that the cypres power which constitutes thé 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 unsuited to'our institutions, and has no existence in the jurisprudence' of. this state on this subject; but he declined to- ré-exáminé these cases, as he concludes that the law of .'charities-- could-not be invoked in the case then under consideration. v

The same learned judge, however, in' the subsequent case of Bascom v. Albertson (34 N. Y., 548), in which he acted as counsel, reviewed at length the question whether the English law of charitable uses prevailed to any extent whatever in this state. His argument was preserved- ■ in print, and was used in Burrill v. Boardman (43 N. Y.), and in that argument, referring to what' he had-said in his opinion in Beekman v. Bonsor, as to the proposition Ithat 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 Downing v. Marshall (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 Williams v. Williams (8 N. Y., 524) is the leading case in the court of last lesort 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 another 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 tbe 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 tour 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 conveyánce'in trust for the want of a cestui que 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 piirviéw 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 m this state of the statute (43 Eliz., chap. 4; Laws of i788, chap. 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 the residue of his estate to the “Methodist General Missionary Society,” an unincorated associaation 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 and Denio, JJ. Judges A. S. Johnson, T. A. Johnson, Hubbard a,nd Weight, concurred m the opinion of Selden, J., which held that the bequest was 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 religious use,, 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 v. Williams, on the ground that there the bequest was to trustees competent to take. Although the tenor of the opinion is against rollowing the example of the English chancellors in applying a peculiar and partial system of rules to the support of charitable gifts, Judge Selden 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.

Djgnio, 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 evecuted by the court as a charitable use. the purposes of the society being “ to diffuse more generally the blessings of exucation, civilization and Christianity throughout the United States and elsewhefe;” that although trusts in favor of education and religion had always been considered charitable uses, and were recognized ab 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 be charitable objects in the understanding of the law. Six of the judges were of the opinion that 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 case 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 powers as exercised in England in cases of 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 ivould be upheld by the courts of this state, if the thing given tvas certain, if there was a competent trustee to administer the fund as directed, and if the charity itself was precise and definite.

Dowing 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 Weight, 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 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 Elizabeth, 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 restrictions. He calls attention to the fact that in 1788 the legislature of this state repealed the statute of 43d Elizabeth, 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 be 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 are 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 mortmain 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 case, 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 vari-, ety 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. Erom the case of Owens v. Missionary Society (14 N. Y., 380), through the cases of Downing v. Marshall (23 N. Y., 366); Levy v. Levy (3d id., 97); Bascom.v. Albertson (34 N. Y., 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 the law of this state, that they come 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 of 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 sick 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 comEetent to give; and whether the organized body is endowed y 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 case before him, it appears that he had not reached the conclusion established in the later cases, namely, that with us 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 concur, Earl, J., not voting.  