author: Kellogg, J.

text:
    In the Matter of Robert E. Patterson, Respondent, against The Council of the Seneca Nation, Appellant.
    Jurisdiction — Indians — Seneca Nation of Indians retains right to determine its membership — Supreme Court of this State without jurisdiction to issue mandamus requiring enrollment of petitioner as member of nation — relations between Seneca Nation and State of New York — tribe remains separate nation, retaining powers of self-government — jurisdiction of Peacemakers’ Courts extends to all civil causes arising between individual Indians residing on reservation except those reserved to Surrogates’ Courts — quaere whether the Peacemakers’ Courts may determine whether a co-ordinate branch of the nation has followed the Indian Law.
    1. The Seneca Nation of Indians has retained for itself that prerequisite to their self-preservation and integrity as a nation, the right to determine by whom its membership shall be constituted. The Supreme Court of this State, therefore, has no jurisdiction to issue an alternative order of mandamus, to the Council of the Seneca Nation, requiring it to emolí the petitioner and to accord him all personal and property rights as a member of such nation.
    2. A contention that the Seneca Nation and the State of New York enjoy a relation inter se peculiar to themselves; that the Seneca Nation, by its constitution adopted in the year 1848, submitted itself to the laws of the State and the jurisdiction of State courts; that the State of New York, at the request of the nation, thereafter enacted legislation to govern the Seneca Indians in their mutual relations; that the laws of the State of New York alone apply to this issue and that under them the petitioner has a clear right to the relief demanded, cannot be sustained. Upon examination of the constitution and legislation referred to, the conclusion is inescapable that the Seneca tribe remains a separate nation; that its powers of self-government are retained with the sanction of the State; that the ancient customs and usages of the nation, except in a few particulars, remain, unabolished, the law of the Indian land; that in its capacity of sovereign nation the Seneca Nation is not subservient to the orders and directions of the courts of New York State, and that the Seneca Nation retains for itself the power of determining who are Senecas,, and in that respect is above interference and dictation. (United States ex rel. Kennedy v. Tyler, 269 U. S. 13, distinguished.)
    (Argued May 2, 1927;
    decided July 20, 1927.)
    3. Nor can it be successfully contended that the jurisdiction of the Peacemaker’s Court is limited by the Indian Law (§ 46) to “ matters, disputes and controversies between any Indians residing upon such reservation ” which may arise upon “ contracts or for wrongs.” The Peacemaker’s Court is the creation not of the State but of the Indian constitution and by such constitution, as amended in 1898, such courts are given “ exclusive jurisdiction in all civil causes arising between individual Indians residing on said reservations, except those which the surrogates’ courts have jurisdiction of,” without reference to “ contracts ” or to “ wrongs.” Moreover the question whether or not the petitioner is a Seneca Indian, entitled to enrollment as such, is primarily not a judicial but a political question to be determined by the nation, through its council, according to its laws, usages and customs.
    4. Quaere, whether the Peacemakers’ Courts have power to determine whether a co-ordinate branch of the nation has followed the laws of the Indian land.

      Matter of Patterson v. Council of Seneca Nation, 219 App. Div. 857, reversed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 16, 1927, which unanimously affirmed an order of Special Term granting a motion for an alternative order of mandamus requiring the council to enroll the petitioner as a member of the' Seneca Nation.

      George P. Decker for appellants.
    The New York judiciary is alien and without any territorial jurisdiction over the Senecas. (Seneca Nation v. Appleby, 196 N. Y. 323; Ryan v. Knorr, 19 Hun, 540; Dole v. Irish, 2 Barb. 693.) The roll of members of the Seneca Nation is a matter outside the power of New York to control through its Legislature or its judiciary if either should assume to do so and neither has assumed to do so heretofore. (Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; U. S. v. Kagama, 118 U. S. 384; Matter of Kansas Indians, 5 Wall. 755; Matter of Heff, 197 U. S. 506; U. S. v. Dick, 208 U. S. 356; West v. Hitchcock, 205 U. S. 80; People v. McKenna, 188 App. Div. 368; Cherokee Trust Funds, 117 U. S. 288; Stephen v. Cherokee Nation, 174 N. Y. 445; Old Settlers v. United States, 148 U. S. 427; Cherokee Inter Marriage Cases, 203 U. S. 76.) Section 5 of the Indian Law was never intended to cover a case of mandamus. (People ex rel. Broderick v. Morton, 156 N. Y. 136; Mulkins v. Snow, 232 N. Y. 252.)

      John L. Heider for respondent.
    The Seneca Indians are not an alien, independent people. (Matter of Heff, 197 U. S. 488.) The New York State courts have jurisdiction over the Seneca Nation of Indians. (United States v. Tyler, 269 U. S. 13.) The Seneca Indians abolished their government in the year 1848 and subjected themselves to the jurisdiction of New York State. (United States v. Waldow, 294 Fed. Rep. 111.) The Seneca Indians recognize the jurisdiction of New York courts and the power of the New York courts to control their internal affairs. (Seneca Nation v. Christie, 49 Hun, 524; 126 N. Y. 122; Seneca Nation v. Appleby, 127 App. Div. 770; 196 N. Y. 318; Seneca Nation v. Lehly, 55 Hun, 83; Seneca Nation v. Hugaboom, 132 N. Y. 493.)
   Kellogg, J.

The question to be determined is whether an alternative order of mandamus, issued out of the Supreme Court of the State of New York to the Council of the Seneca Nation of American Indians, requiring it to enroll the petitioner as a member of the Seneca Nation and to accord him all personal and property rights of a member of such Nation, was within the jurisdiction of the court so issuing it.

The petition alleges that the petitioner is of full age; that he resides on the Cattaraugus Indian Reservation in Erie county, New York; that he is the son of Nathaniel C. Patterson, deceased, a duly enrolled member of the Seneca Nation; that his mother is a white woman; that his parents were duly married; that after their marriage they lived together on the Cattaraugus Reservation; that the petitioner has frequently demanded of the Council of the Seneca Nation that he be enrolled as a member; that the request has been refused; that the United States Commissioner of Indian Affairs has refused to enroll him; that the pretended reason for the refusal has been that there is a custom among the Senecas that only a person born of a mother who was duly enrolled as a Seneca Indian may himself be enrolled; that the petitioner’s mother was not so enrolled; that in fact there is no such custom; that any and every custom of the Senecas has been superseded by the laws of the State of New York; that the Seneca Nation, on December 4, 1848, amended their existing form of government, their laws, customs and usages; that they then petitioned the State of New York to provide them with laws; that they adopted a new constitution and prayed the State and the United States to approve the same; that such constitution was subsequently approved by the two governments; that, pursuant to the request of the Senecas, the State of New York enacted various laws for the government of such nation; that such laws are now embodied in the Consolidated Laws, known as the Indian Law (Cons. Laws, ch. 26); that membership in the Seneca Nation is valuable in that the governments of the United States and the State of New York set aside moneys for use by members of the tribe, and that membership gives the right to vote and to participate in the community property of the Senecas. Annexed to the petition is a copy of the constitution of the Seneca Nation of Indians alleged to have .been adopted on the 4th of December, 1848. In opposition to the petition, the president of the Seneca Nation filed an affidavit wherein it is asserted that under the immemorial customs and usages of the nation, property has always descended through the mother; that these customs and usages- still persist; that they were not abolished by the new constitution or by the laws of the State of New York; that the Seneca Nation itself may alone determine who is a Seneca Indian entitled to enrollment. Appended to the affidavit is a document entitled Amended Constitution of the Seneca Nation of Indians of 1898.” Upon these papers the Supreme Court, at Special Term, made an order requiring the Council of the Seneca Nation of American Indians to enroll the petitioner as a member of such nation; to pay him his share of annuities as a member; to permit him to participate as a voter in elections held by the nation; to accord to him his property rights as a member thereof; to show cause why the order should not be obeyed, and to file a return thereto within twenty days. The order was affirmed by the Appellate Division, which granted leave to appeal to this court and certified, to be answered by it, the following question: “ Has the Supreme Court of the State of New York jurisdiction of this proceeding? ”

The status of an Indian tribe which has retained its tribal integrity has been variously described. In Cherokee Nation v. State of Georgia (5 Pet. [U. S.] 1) it was said by Marshall, Ch. J., that the argument that the Cherokee Nation was a “ distinct political society, separated from others, capable of managing its own affairs and governing itself ” was approved by a majority of the court. He further said of the various Indian tribes: They may, more correctly, perhaps, be denominated domestic dependent nations.” In Worcester v. State of Georgia (6 Pet. [U. S.] 515) the same chief justice, in speaking of the relation created by a treaty between the United States and the Cherokee N ation, said: ‘' This relation was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.” In Seneca Nation of Indians v. Appleby (196 N. Y. 318) this court, through Cullen, Ch. J., in reference to the Indians, said: “ They are not citizens of the State and their tribes, though not treated as independent foreign nations, are not subject to the jurisdiction of the State to the same extent as its citizens.” In People ex rel. Cusick v. Daly (212 N. Y. 183) this court, through Werner, j., said: “ The Indians, although native sons of our soil, are not citizens either of the nation or State. They are heralded as the wards of the nation, and in their collective or tribal capacity they have been relegated to the status of foreign nations with whom the Federal government has entered into treaty relations.” In Mulkins v. Snow (232 N. Y. 47) this court, through Pound, J., said: The lands in question are held by the Seneca Indians, as a distinct although a dependent nation, by conquest from other aboriginal tribes.” Again it said: “ The Seneca Nation of Indians is a quasi foreign nation and its reservation is quasi extra territorial.” Unless these expressions, as-well as similar expressions many times used by many courts in various jurisdictions, are mere words of flattery designed to soothe Indian sensibilities; unless the last vestige of separate national life has been withdrawn from the Indian tribes by encroaching State legislation; then, surely, it must follow that the Seneca Nation of Indians has retained for itself that prerequisite to their self-preservation and integrity as a nation, the right to determine by whom its membership shall be constituted.

Not only have the various courts of the Union frequently declared the Indian tribes to be distinct and separate nations, but they have frequently held that the usages and customs of these nations, rather than the laws of the State within the borders of which they dwell, govern the relations of members of the nations among themselves. In Worcester v. State of Georgia (supra) it was held that the State of Georgia was powerless to extend, its criminal and civil laws over the Cherokee tribes. In Kansas Indians (5 Wall. [U. S.] 737) it was said by Davis, J., that as long as the United States recognizes the national character of the Indian tribes, they are under the protection of treaties and the laws of Congress, “ and their property is withdrawn from the operation of State laws.” In Dole v. Irish (2 Barb. 639) it was held that the private property of the Seneca Indians was not within the jurisdiction of the State of New York for purposes of administration; that letters of administration granted by a county surrogate upon the estate of a dead Indian were void. The court said: We have not attempted to extend our laws to their domestic relations, or to regulate the maimer of their acquiring, holding or conveying property among themselves.” In Hastings v. Farmer (4 N. Y. 293) it was said of the Onondaga Indian: “ He is governed by the laws and usages of his tribe, and is only subject to our laws, so far as the public safety requires.” These two New York cases are cited with approval by the United States Supreme Court in Jones v. Meehan (175 U. S. 1). In United States v. Kagama (118 U. S. 375) the court said of Indian tribes: “ They owe no allegiance to the States, and receive from them no protection.” Commenting upon the case of Worcester v. State of Georgia (supra) the court said that it was there held that the Indians “ could not be subjected to the laws of the State arid the process of its courts.” In Jones v. Meehan (supra) it was said in regard to a certain Indian chief that since he was a member of an Indian tribe, whose tribal organization was still' recognized by the United States, “ the right of inheritance in his land, at the time of his death, was controlled by the laws, usages and customs of the tribe, and not by the law of the State of Minnesota.” In so holding the court cited, among others, the cases of Brown v. Steele (23 Kans. 672), in which the opinion was written by Mr. Justice Brewer, and United States ex rel. Davis v. Shanks (15 Minn. 369). In United States v. Quiver (241 U. S. 602) it was said that at an early period it became the settled policy of Congress to permit the “ personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws; ” that by virtue of the Federal act of 1885 (23 U. S. Statutes at Large, 385) the courts of the United States have been vested with exclusive jurisdiction over seven major crimes therein specified; that In other respects the policy remained as before.” In the recently decided case of Mulkins v. Snow (supra) Judge Pound said: The contention has been made with some force that when Congress does not act, no law runs on an Indian reservation save the Indian tribal law and custom.” It must be the law, therefore, that, unless the Seneca Nation of Indians and the State of New York enjoy a relation inter se peculiar to themselves, the right to enrollment of the petitioner, with its attending property rights, depends upon the laws and usages of the Seneca Nation and is to be determined by that nation for itself, without interference or dictation from the Supreme Court of the State.

The respondent asserts that a peculiar relation does exist; that the Seneca Nation, by its constitution adopted in the year 1848, submitted itself to the laws of the State and the jurisdiction of State courts; that the State of New York, at the request of the nation, thereafter enacted legislation to govern the Seneca Indians in their mutual relations; that the laws of the State of New York alone apply to this issue; that under them the respondent has a clear right to the relief demanded. It is true that in the recent case of United States ex rel. Kennedy v. Tyler (269 U. S. 13) the Supreme Court of the United States stated that the State of New York, as early as the year 1849, assumed governmental control ” of the Indians at their request, created and defined the jurisdiction of the Peacemakers Court, and administered the laws enacted “through its courts.” We do not understand, however, that that court undertook to define, for the courts of the State, the relation between the State and the Seneca Indians, or to determine that the statutes of the State applied to the tribal Indians, or that its courts had jurisdiction over them. On the contrary, it expressly declined to make the determination, saying: “ In the regular and ordinary course of procedure, the power of the highest State court in respect of such questions should first be exhausted.”

The preamble to the constitution adopted by the Seneca Nation of Indians in the year 1848 in part states as follows: “ But to remedy these defects, we proclaim and establish the following Constitution or Charter, and implore the governments of the United States and the State of New York to aid in providing us with laws under which fife shall be possible.” Section 19 provides: “ The laws passed by the Legislature of the State of New York for the protection and improvement of the Seneca Nation of Indians, and also all laws and regulations heretofore adopted by the Chiefs in legal Council assembled shall continue in full force and effect as heretofore except so far as they are inconsistent with the provisions of this Constitution or Charter.” The words which we have italicized are significant. Laws enacted by the State of New York must be “ for the protection and improvement of the Seneca Nation of Indians.” They must not be “ inconsistent with the provisions of this Constitution or Charter.” Section 1 provides: “ Our government shall have Legislative, Executive and Judiciary departments.” The legislative power is to be vested in a council to be called the Councillors of the Seneca Nation.” The executive power is to be vested in a president. Section 4 provides: “ The Judiciary power shall be vested in three peace makers on each reservation; any two of whom have power to hold courts, subject to an appeal to the Council, and to such courts of the State of New York as the Legislature thereof shall permit.” Section 5 provides: “ All causes of which the peace makers have not jurisdiction, may be heard before the Council or such courts of the State of New York as the Legislature thereof shall permit.” Section 6 provides that the “ power of making treaties shall be vested in the Council.” Section 16 provides: The rights of any members of the ancient confederacy of the Iroquois to the occupancy of our lands and other privileges shall be respected as heretofore.” In March, 1849, the Legislature of the State of New York passed a resolution approving the new constitution of the Senecas and directed the officers of the State to respect the new “ Constitutional Government.” The constitution of the Senecas was amended in the year 1898. The amended constitution was ratified and confirmed ” by the Legislature of the State of New York by the enactment of chapter 252 of the Laws of 1900. The amended constitution provides: “ The legislative power shall be vested in a council of sixteen members, who shall be called the Councillors of the Seneca Nation of Indians, of whom eight shall be elected every two years for the Cattaraugus and eight] for the Allegany Reservation.” It further provides: The judiciary power shall be vested in courts to be known by the name of peacemakers and surrogate’s courts. The peacemakers court shall be composed of three members each, one court to be established upon the Cattaraugus and the other upon the Allegany Reservation.” Again it provides: “ Peacemakers courts shall have exclusive jurisdiction in all civil causes arising between individual Indians residing on said reservations, except those which the surrogates courts have jurisdiction of.” It further provides that there shall be one surrogate for each reservation and that they shall be known as surrogates, and “ shall b~ve jurisdiction of all matters on each reservation for which they are respectively elected, the same as surrogates of the different counties of the State of New York have.” Thus did the Seneca Nation, far from abdicating its sovereign powers, set up a strong central government, distribute all governmental powers among three departments, empower a legislative body to be called the Councillors of the Seneca Nation ” to make necessary laws, create a president to execute them, and establish a peacemakers court and a surrogate’s court to interpret the laws of the nation and decide causes. Thus did the Legislature of the State of New York twice approve of the constitution adopted and the government set up. It was not accurate to say, therefore, that the State of New York in the year 1849 “ assumed governmental control ” of the Indians. On the contrary, in that year and subsequently, by its approval of the Indian constitution in its original and amended form, the State of New York acknowledged the Seneca Indians to be a separate nation, a self-governing people, having a central government with appropriate departments to make laws, to administer and to interpret them. It is true that the constitution gave consent of the nation that laws might be passed “ by the Legislature of the State of New York for the protection and improvement of the Seneca Nation of Indians,” but only in so far as such laws might not be inconsistent with the provisions of this Constitution or Charter.” It gave no consent that the common law of the State of New York should obtain on the Indian reservations. It did not abrogate the customary laws of the nation. The ancient usages and customs of the Seneca Nation, therefore, except as modified by the constitution, or as they might be modified by appropriate legislation of the nation or State, continued as the law of the Indian land.

Various statutes passed by the New York Legislature in relation to the Indians are now embodied in the “ Indian Law.” Article 4 of that law is entitled “ The Seneca Indians.” It doubtless embodiés the statutes passed pursuant to the request of the Seneca Nation contained in its constitution of 1848. This article purports to set up a government for the Seneca Nation, consisting of three departments, exactly as provided in the Indian constitution. It must be held, however, that the Indian Nation itself created these departments and the system of government set up by its Constitution, the force of which had been expressly acknowledged by the New York Legislature. It purported to set up a Peacemakers Court. The source of jurisdiction of that court, however, was the Indian constitution, not the Indian Law. Thus, in Mulkins v. Snow (supra) this court said: The Peacemakers’ Court is not a mere statutory local court of inferior jurisdiction. It is an Indian court, which has been recognized and given strength and authority by statute. It does not owe its existence to the State statute and is only in a qualified sense a State court.” The article provides for the manner in which the elections of officers shall be had by the Seneca Nation; for the ascertainment of legal voters at such elections; for the keeping of records by the nation’s clerk; for the giving of. a bond by the nation’s treasurer; for the keeping of records by the Peacemakers Courts; for the taking and hearing of appeals to the Council of the nation; for the service of process by the nation’s marshal; for the enforcement of judgments; for the allotment of common lands; for the punishing of those giving or receiving bribes; for various other details of administering the affairs of the government. • In these respects the article covers a field not occupied by the Indian constitution; it makes enactments not inconsistent therewith; .it supplements the constitution and provides legislation not before existent, as requested by the nation. ,In section 55 of the article there is a definite sanction of Seneca usages and customs. It is therein provided that all lands on the reservations shall be held in common by the Seneca Nation, “ subject to control of the Council thereof,” except lands cultivated and improved by an Indian family “ in accordance with the laws and usages of the Seneca nation.”

The Indian Law, and especially article 4 thereof, is chiefly notable for the almost complete omission therefrom of any legislative enactments upon matters other than those appertaining to administrative details. The law imposes the marriage and divorce laws of the State upon the Indian nations; it prohibits suits against Indians upon contracts; it forbids the sale or exchange of spirituous liquors for any article received from an Indian in payment, exchange or pawn. It does not otherwise make applicable to Indians either the common law or statute law of the State, whether civil or criminal. It does not abrogate Indian customs or usages. It does not provide for the descent of property through the father rather than through the mother, as prescribed by the customs of many Indian nations. It does not provide what shall be the qualifications of membership in the Seneca or any other Indian nation. The conclusion is inescapable that the Seneca tribe remains a separate nation; that its powers of self-government are retained with the sanction of the State; that the ancient customs and usages of the nation, except in a few particulars, remain, unabolished, the law of the Indian land; that in its capacity of a sovereign nation the Seneca Nation is not subservient to the orders and directions of the courts of New York State; that, above all, the Seneca Nation retains for itself the power of determining who are Senecas, and in that respect is above interference and dictation.

The respondent argues that the jurisdiction of the Peacemakers Court is limited by the Indian Law (Section 46) to matters, disputes and controversies between any Indians residing upon such reservation” which may arise upon “ contracts or for wrongs.” We answer that the Peacemakers Court is the creation not of the State but of the Indian constitution; that by such constitution, as amended in 1898, the Peacemakers Courts are given “ exclusive jurisdiction in all civil causes arising between individual Indians residing on said reservations, except those which the surrogates courts have jurisdiction of,” without reference to “ contracts ” or to “ wrongs.” The Indian Law does not deny comprehensive jurisdiction; it merely fails to use terms apparently bestowing it. The Indian constitution does bestow it. Proceeding with his argument, upon the false premise stated, the respondent says that the Supreme Court had jurisdiction of this controversy by reason of section 5 of the Indian Law. That section reads: Any demand or right of action, jurisdiction of which is not conferred upon a peacemakers’ court, may be prosecuted and enforced in any court of ■the state, the same as if all the parties thereto were citizens. ’ ’ In the first place we have shown that unlimited jurisdiction was conferred ” by the Seneca constitution upon such courts in respect to all controversies between Indians upon the reservations. In the second place it cannot be understood that the Legislature intended to include within the phrase any demand or right of action ” mandamus orders, the essential nature of which is to “ command,” not to demand.” Moreover, the question whether or not the respondent is a Seneca Indian, entitled to enrollment as such, is primarily not a judicial but a political question. That question must be determined by the self-governing Seneca Nation, through its council, according to Seneca laws, usages and customs. It has not been shown that the council has failed to follow any law or custom applicable to the subject. It may be that the Peacemakers Courts of the Senecas have power to determine whether a co-ordinate branch of that nation’s government has followed the laws of the Indian land and power to order it by mandamus to obey them. We need not and should not decide that question, for it is a question for the Indian Nation, not for us, to determine. We hold merely this: That the courts of the State of New York, under existing laws, have no jurisdiction to control by mandamus order, running to the government of the Seneca Nation, the membership of that nation. We refrain from determining whether or not the New York Legislature has the power to enact laws conferring jurisdiction to that end, if so advised. We conclude that the Special Term was without jurisdiction to grant the order.

The order of the Appellate Division and that of the Special Term should be reversed, and the application for a mandamus denied, with costs in all courts. The question certified should be answered in the negative.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Guaranty Trust Company of New York, Individually and as Trustee under a Deed of Trust Made by Angier B. Duke, Respondent, v. E. Bayard Halsted et al., as Executors of Angier B. Duke, Deceased, et al., Respondents, and Angier B. Duke, Jr., et al., Appellants.
    Trust — income — direction in deed of trust that on death of grantor surplus income shall be paid to those entitled thereto under will or if no will to next of kin — such income not an asset of estate of grantor — duty rests upon trustee to pay income to persons designated — failure to refer to trust in will — designation may nevertheless be present if will purports to pass all personal property — intent not to execute power appears by implication where dispositions under will are inapplicable to subject thereof — failure of will as instrument of designation — surplus income payable by trustee to next of kin.
    1. Where a trust indenture provides that surplus income, after the death of the grantor of the trust, shall be paid “ in quarterly installments so long as this trust shall continue ” to “ those who may be entitled thereto by virtue of the will of said grantor or in ease he leave no such will ” to his next of kin, such surplus income is not an asset of the estate of the grantor payable to the executors for accumulation or disbursement but the right thereto passes by the trust deed and the duty rests upon the trustee to pay such income quarterly to those designated by the will or to the next of kin. (Genet v. Hunt, 113 N. Y. 158; McComb v. Title Guarantee & Trust Co., 36 Mise. Rep. 370; aSd., sub nom. Herzog v. Title Guarantee & Trust Co., 210 N. Y. 531, followed; Doctor v. Hughes, 225 N. Y. 305, distinguished.)
    (Argued May 20, 1927;
    decided July 20, 1927.)
    2. Although the will of such a grantor makes no reference to the trust and in terms makes no designation of beneficiaries to take thereunder, nevertheless designation may be present in the will by virtue of the terms of section 18 of the Personal Property Law (Cons. Laws, ch. 41), providing that personal property embraced in a power to bequeath passes by a will purporting to pass all personal property of testator unless the intent that the will shall not operate as an execution of the power appears “ expressly or by necessary implication.” If, however, the dispositions made by testator of his property are, by their very nature inapplicable to the subject of the power, the intent of the testator not to execute the power will “ by necessary implication ” appear and the power will fail of exercise.
    3. Where, therefore, an examination of the will of such a grantor discloses that the allotment of specific securities and properties to particular legatees and the devotion of such properties to specific purposes have been committed by the testator into the hands of his executors so that any appointment of beneficiaries to receive the trust income must be made through an allotment by the executors within the terms of the wilVand it appears that the surplus trust income cannot be adjusted to the testamentary dispositions without doing violence to the provisions of the trust indenture and that the will as an instrument of designation supplementing the trust indenture is clearly unsuited to the task, it must be held that the testator made no appointment or disposition and intended to make none which was consonant with the power reserved; that the will fails as an instrument of designation and that the trustee under the trust indenture should pay the surplus income to the next of kin of the grantor.

      Guaranty Trust Co. v. Halsted, 217 App. Div. 791, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 17, 1926, unanimously affirming a judgment of Special Term judicially settling the accounts of the trustee under a trust indenture made by Angier B, Duke, deceased.

      Charles K. Beekman and William, L. Bainton for appellants.
    Assuming the grantor intended by his will to bequeath the surplus income, such bequest was invalid as it created an unlawful accumulation. (Thorn v. DeBreteuil, 179 N. Y. 64; Hascall v. King, 162 N. Y. 134; Matter of Chapman, 32 Misc. Rep. 187; 59 App. Div. 624; 167 N. Y. 619; Matter of Jenkins, 132 App. Div. 339; Lowenhaupt v. Stanisics, 95 App. Div. 171; Hafner v. Hafner, 62 App. Div. 316; 171 N. Y. 633; Matter of Tracy, 179 N. Y. 501; Herzig v. Herzig, 140 App. Div. 514.) The only right which the testator had under the trust indenture was to nominate in his will the persons who would be entitled to receive the surplus income, and the testator’s will does not, nor did the testator intend thereby to, dispose of the “ surplus income.” (Matter of Sheldon’s Will, 16 N. Y. Supp. 454; Matter of Budlong, 126 N. Y. 423; Matter of Tamargo, 220 N. Y. 225; Quinn v. Hardenbrook, 54 N. Y. 83; Genet v. Hunt, 113 N. Y. 158; Embury v. Sheldon, 68 N. Y. 227; Stevenson v. Lesley, 70 N. Y. 512; Crooke v. County of Kings, 97 N. Y. 446; Knowlton v. Atkins, 134 N. Y. 313; Farmers’ Loan & Trust Co. v. Kip, 192 N. Y. 266.)

      Forrest Hyde, William R. Perkins, H. Laurence Brooke and Philip M. Payne for executors, respondents.
    The right to receive the surplus income is a beneficial interest or estate in the trust created by the trust indenture separate and distinct from the surplus income which may accrue thereon. It is this right which constitutes the capital asset of the estate in question here. (Pray v. Hegeman, 92 N. Y. 508; Cazzani v. Title Guarantee & Trust Co., 175 App. Div. 369; Matter of Bendit, 214 App. Div. 446.) It is immaterial whether Duke owned the right to the surplus income by way of reversion or had as to it a general power of appointment by will. (Doctor v. Hughes, 225 N. Y. 306; N. Y. Life Ins. & Trust Co. v. Livingston, 133 N. Y. 125; N. Y. Life Ins. & Trust Co. v. Carey, 191 N. Y. 33; Livingston v. N. Y. Life Ins. & Trust Co., 36 N. Y. S. R. 566; 151 N. Y. 667; Montague v. Curtis, 110 Misc. Rep. 717; 191 App. Div. 904.) The will does include and pass the right to the surplus income. (Floyd v. Carow, 88 N. Y. 560; Lamb v. Lamb, 131 N. Y. 227; Matter of Miner, 146 N. Y. 121; Matter of Kelsey, 115 Misc. Rep. 577; 200 App. Div. 908; 234 N. Y. 511; Lockwood v. Mildeberger, 159 N. Y. 181; Kilber v. Miller, 57 Hun, 14; 141 N. Y. 571; Hutton v. Benkard, 92 N. Y. 295; N. Y. Life Ins. & T. Co. v. Livingston, 133 N. Y. 125; McLean v. McLean, 174 App. Div. 152; 223 N. Y. 695; Hirsch v. Bucki, 162 App. Div. 659; Waterman v. N. Y. Life Ins. & Trust Co., 237 N. Y. 293; Matter of Franklin Trust Co., 103 Misc. Rep. 143.) The effect of the will was merely to substitute successive beneficiaries in the stead of Duke for a portion of the income of an admittedly valid trust —a perfectly legal thing to do. (McComb v. Title Guarantee & Trust Co., 36 Misc. Rep. 370; 70 App. Div. 618; Herzog v. Title Guarantee & Trust Co., 210 N. Y. 531; Gilman v. Reddington, 24 N. Y. 9; Schermerhorn v. Cotting, 131 N. Y. 48; Woodgate v. Fleet, 64 N. Y. 566; Underwood v. Curtis, 127 N. Y. 523; Buchanan v. Little, 154 N. Y. 147; Matter of Allen, 111 Misc. Rep. 93; 202 App. Div. 810; 236 N. Y. 503; Matter of Smission, 79 N. J. Eq. 233.) The will does not effect an illegal accumulation of the surplus income. (Manice v. Manice, 43 N. Y. 303; Matter of Stevens, 187 N. Y. 471; McLouth v. Hunt, 154 N. Y. 179; Kemp v. Macready, 165 App. Div. 124; Matter of Fanoni, 88 Misc. Rep. 442; Matter of Chapman, 32 Misc. Rep. 187; 59 App. Div. 624; 167 N. Y. 619; Matter of James, 146 N. Y. 78; Frankel v. Farmers’ Loan & Trust Co., 152 App. Div. 58; 209 N. Y. 553; Matter of Yates, 99 N. Y. 94.) Had the testator directed an accumulation of the surplus income only such direction would be void. The will would still be a valid disposition of the right to such income entitling the life and conditional tenants to receive and enjoy the whole of such income. (Hillen v. Iselin, 144 N. Y. 365; Matter of Rogers, 22 App. Div. 428; 161 N. Y. 108; Barbour v. deForest, 95 N. Y. 13; Matter of Hoyt, 116 App. Div. 217; 189 N. Y. 511; Matter of Megrue, 170 App. Div. 653; 217 N. Y. 623; Matter of Kohler, 231 N. Y. 353.)

      C. Alexander Capron and Ramsey Clayton for respondent.
    The right to receive the surplus income after the death of Angier B. Duke is an asset of his estate. (Matter of Viele, 35 App. Div. 211; Montanye v. Montanye, 29 App. Div. 377; Matter of Hawes, 162 App. Div. 173; Doctor v. Hughes, 225 N. Y. 305; Whittemore v. Equitable Trust Co., 162 App. Div. 607; Hoskin v. Long Island Loan & Trust Co., 139 App. Div. 258; 203 N. Y. 588; Genet v. Hunt, 113 N. Y. 158.) Since the right to receive the surplus income was an asset of the estate of Angier B. Duke, no question concerning unlawful accumulations is presented. (Howe v. Earl of Dartmouth, 7 Vesey, 137; Cairns v. Chaubert, 9 Paige Ch. 160; Livingston v. Tucker, 107 N. Y. 549; Matter of Hoyt, 160 N. Y. 607.) If Angier B. Duke only had a power of appointment of the right to receive the surplus income accruing after bis death, nevertheless his will effected a valid disposition thereof, and the direction to pay such income to his executors was appropriate. (Matter of Franklin Trust Co., 103 Misc. Rep. 143; Crook v. County of Kings, 97 N. Y. 421; Bailey v. Bailey, 97 N. Y. 460.) The right to receive the surplus income is a capital asset, and the executors, trustee and legal life tenants should preserve the value thereof for those who may be entitled thereto upon the termination of the life estates. (Howe v. Earl of Dartmouth, 7 Vesey, 137; Cairns v. Chaubert, 9 Paige Ch. 160; Matter of Elsner, 210 App. Div. 575; McDonald v. Irvine,
      8 Ch. Div. 101; Matter of James, 146 N. Y. 78; Farmers' Loan & Trust Co. v. Frankel, 152 App. Div. 58; 209 N. Y. 553; Porter v. Bradley, 5 Ch. Div. 542; Crawley v. Crawley, 7 Sim. 427.)

      Charles Caldwell for Benjamin N. Duke et al., respondents.
    A direction in a will to appraise the estate will be construed as merely a step in the administration and not a capitalization which is to be maintained out of income for remaindermen. (Manice v. Manice, 43 N. Y. 303; Brainerd v. Birdsall, 2 Dem. Surr. 331.) The provisions of the will show a clear intent that the life tenants should not use the income to maintain corpus for the benefit of remaindermen. (Frankel v. Farmers’ Loan & Trust Co., 152 App. Div. 58; 209 N. Y. 553; Matter of Yates, 99 N. Y. 94; Matter of Stevens, 187 N. Y. 471; McLouth v. Hunt, 154 N. Y. 179; Matter of Fanoni, 88 Misc. Rep. 442; 169 App. Div. 958; 216 N. Y. 640; Kemp v. Macready, 165 App. Div. 124; Gray v. Siggers, L. R., 15 Ch. Div. 74; Simpson v. Lester, 4 Jur. [N. S.] 1269.) Duke was disposing of a reversionary interest which he had retained and did so in an apt and legal way. (Doctor v. Hughes, 225 N. Y. 306; New York Life Ins. & Trust Co. v. Livingston, 133 N. Y. 125; New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33; Livingston v. New York Life Ins. & Trust Co., 36 N. Y. S. R. 566; Montague v. Curtis, 110 Misc. Rep. 717; 191 App. Div. 904; Goodwin v. Broadway Trust Co., 87 Misc. Rep. 130; Whittemore v. Equitable Trust Co., 162 App. Div. 607; Cruger v. Union Trust Co., 173 App. Div. 797.)
   Kellogg, J.

This action was brought by a trustee under a trust indenture for the purpose of procuring a decree determining the persons to whom certain surplus earnings of the trust fund should be paid. The trust indenture was executed on July 28th, 1919, by one Angier B. Duke, against whom an action of divorce brought by Ms .wife, Cordelia B. Duke, was then pending. Husband and wife had entered mto an agreement of separation whereby the latter had released to the former all her rights, present and future, in and to the real and personal property of the former. In consideration of tMs agreement the trust indenture was executed. By it' Angier B. Duke transferred to the plaintiff, as trustee, certain specified securities.

The trust indenture required the trustee to collect and receive the income from the securities transferred and directed that, after deductmg expenses of admmistration, it should pay, apply and distribute the residue of the same ” as provided in certain clauses of the indenture designated (A), (B), (C) and (D).

Clause (A) provided that the trustee should make payments as follows: “ To the said Cordelia B. Duke the sum of Twenty thousand dollars a year in equal montMy installments so long as she shall five; or if the grantor or the said Cordelia B. Duke shall hereafter obtain a decree of divorce one from the other and the said Cordelia B. Duke shall thereafter remarry, thereafter the sum of Ten thousand dollars a year, in equal montMy installments so long as she shall live.”

Clause (B) provided that the trustee should make further payments as follows: To each of said children, Angier B. Duke, Jr., and Anthony Newton Duke, for his maintenance, education and support, the sum of Five thousand dollars m equal montMy installments so long as he shall live and tMs trust shall continue; ” if either of said cMldren should die before the termination of the trust, then to the surviving issue of such child for their maintenance, education and support, so long as the trust should continue; if either of said children should die without issue before the termination of the trust, then the said five thousand dollars of income to the surviving child or Ms issue.

Clause (C) provided that the trustee should make the payments to the wife and children free and clear from , all taxes.

Clause (D) provided that all income not distributed as provided in clauses (A), (B) and (C) during the continuation of the trust should be paid annually, in quarterly installments so long as this trust shall continue to said grantor, or in case he dies before the termination of this trust, after his death to those who may be entitled thereto by virtue of the will of said grantor, or in case he leave no such will, to those who may at the time of his death be his next of kin under and in accordance with the then statutes of distribution of the State of New York.”

The indenture also provided that the trust should continue during the fives of Angier B. Duke and Cordelia B. Duke; that it should terminate upon the death of the survivor of them; that thereupon the trustee should divide and distribute all the properties then held by it in equal shares between the two children, if then surviving; that in case either of the children should then be dead the share of such child should become payable to his issue per stirpes; that if there were no such issue such shares should become payable to the surviving child or his issue then living; that if there were no surviving child the trustee should distribute the properties held among the next of kin of the grantor.

On October 24th, 1921, the marriage between Angier B. Duke and Cordelia B. Duke was dissolved by a decree of divorce duly obtained by the plaintiff in the action above referred to. On September 3d, 1923, Angier B. Duke' died, leaving as his only heirs at law and next of kin Angier B. Duke, Jr., and Anthony Newton Duke, the two children named in the trust agreement, the former being then of the age of eight years and the latter of the age of five years. He also left him surviving his 'father, Benjamin N. Duke; his mother, Sarah B. Duke; and his sister, Mary Duke Biddle. . On April 24th, 1924, Cordelia B. Duke married one Thomas Robinson. Angier B. Duke left a will, dated December 26th, 1922, which has been duly probated.

The will of Angier B. Duke made certain specific bequests to legatees. It then directed that the executors cause an inventory and appraisal to be made of “ all the property (which shall include all rights, powers and interests in, over and concerning property of every kind and wheresoever situated) which I may own at my death, setting forth every item therein at what is, in their judgment, its then cash value.” Whatever might remain of the property thus inventoried and appraised after satisfying and performing the other items of this will, paying my just debts and defraying the costs, the charges and expenses of administering my estate, including therein all taxes legally assessed against the same,” was expressly denominated by the testator “ my residuary estate.”

The residuary estate thus to be constituted was devised and bequeathed by the will as follows:

(a) One-fourth in value to the testator’s mother for life, remainder in fee to his sister, but if his sister left no issue living at her death, to his then heirs according to the statutes then governing the descent of real estate in New York;

(b) One-fourth in value to the testator’s sister, but if she left no issue living at her death, then to his mother for life and at his mother’s death or at his sister’s death without issue then living, if his mother be not then alive, to his then heirs according to the statutes then governing the descent of real estate in New York;

(c) One-fourth in value of said residuary estate to The Farmers’ Loan and Trust Company, in trust, however, for the uses and purposes following: Said Trustee shall collect and receive the income, revenues and profits thereof, and shall pay, apply and distribute the same to and for the support, education and maintenance of my son, Angier B. Duke, Jr., so long as he shall five, and after his death per capita in equal portions for the support, education and maintenance of his lineal descendants so long as this Trust may thereafter continue. Such payments, applications and distributions during the minority of my said son, Angier B. Duke, Jr., shall be in such amounts and at such times as in the uncontrolled discretion of said Trustee may be by it deemed necessary and advantageous for such purposes, it being my intention that the Trustee may, in its discretion, withhold from my said son, Angier B. Duke, Jr., during his minority the whole or any part of such income, revenues and profits, and accumulate the same for his benefit. Upon my said .son attaining his majority all said accumulations shall be at once paid to him. In case my said son dies before attaining his majority • all such accumulations shall become á part of his estate and shall be paid, applied and distributed accordingly. Upon the death of both of my sons, Angier B. Duke, Jr., and Anthony Newton Duke, or upon the death of said Angier B. Duke, Jr., and of all his lineal descendants (if such there shall be), whichever shall first occur, this Trust shall terminate and all the property then held in said Trust, except such accumulations, shall be paid and distributed per capita to and among the lineal descendants of my said son, Angier B. Duke, Jr., then living, and in case there be no such lineal descendants then living, then in all respects in accordance with the statutes of the State of New York governing the descent of real property to and among those who by said statutes would have inherited real property then owned by me in said State had I died intestate at the time of the termination of this Trust.”

(d) One-fourth in value to the Farmers’ Loan arid Trust Company upon a trust for Anthony Newton Duke and his lineal descendants, expressed in words identical with the words of the trust last above given, except that the name Anthony Newton Duke appears in place of the name Angier B. Duke, Jr., and vice versa. '

From the very first, the income upon the securities turned over to the plaintiff, as trustee under the trust indenture, exceeded the amounts periodically required to be paid to Cordelia B. Duke and the two children, Angier B. Duke, Jr., and Anthony Newton Duke. During the life of the settlor of the trust, the surplus income, as provided in the indenture, was paid to him by the trustee. Since the death of the settlor on September 3d, 1923, the surplus income has not been disbursed. On April 24th, 1924, when Cordelia B. Duke remarried, the amount payable to her, under the terms of the trust, fell from $20,000 to $10,000 per annum and the surplus income from the trust securities was thereby correspondingly increased. Since such time it has been approximately $28,000 per annum. Cordelia B. Duke, at whose death the trust term was to end, at the time of the death of the settlor was but twenty-five years of age. At that time and before her remarriage, the capitalized value of the surplus income payable during the remainder of her life was, according to the estimates given, $282,809.91. Its capitalized value since the remarriage has been estimated to be $432,719.97. The trustee under the trust indenture now seeks instructions as to the disposition of the surplus income received since the death of Angier B. Duke, and to be received by it in the future prior to the death of Cordelia B. Duke.

The trust indenture provided, as we have stated above, that the surplus income, after the death of the grantor of the trust, should be “ paid annually, in quarterly installments, so long as this trust shall continue ” to “ those who may be entitled thereto by virtue of the will of said grantor ” or “ in case he leave no such will, to those who may be at the time of his death his next of kin under and in accordance with the then statutes of distribution of the State of New York.” In default of such will,” Angier B. Duke, Jr., and Anthony Newton Duke, the grantor’s only children, would be entitled to the surplus income, since they would constitute his sole “ next of kin.”

The first question we have to determine is whether or not, if such will ” has been made, i. e., a will naming persons entitled to the surplus income, such persons would take under the trust indenture or under the will. The case of Genet v. Hunt (113 N. Y. 158) seems conclusive upon the point. In that case a woman, who was about to marry, conveyed property to trustees. The trustees were directed to pay the income of the trust estate to. the settlor during coverture; if she survived her husband, to pay her the principal fund; if she did not survive her husband, then to make payments as she might direct by her last will. The settlor died during coverture leaving two children named George ” and Mary.” By her last will she directed her executors to divide her, property into two equal parts; to pay to George the income on the half set apart for him, during life; to pay to Mary the income on the half set apart for her, during fife; at the death of either child to pay the principal to the heirs and next of kin of such child; if either child should die without issue before attaining lawful age, then to the survivor upon the same terms as his own share. It is apparent that, if the remainder was limited to pass by the trust deed, the absolute power of alienation might unlawfully have been suspended for more than two lives, viz., the lives of the settlor, of George, and of Mary. On the other hand, if it was limited to pass by the will, the power would have been suspended at the most for the lives of the two children. It was held that the source of the title was the trust indenture, not the will; that the validity of the suspension provided in the will was to be determined by the test of the validity to be applied in case the provisions of the will had been incorporated in the trust deed; that, so construed, the trust created an unlawful suspension and the gift of the remainder was invalid.

Equally convincing is the case of McComb v. Title Guarantee & Trust Company (36 Misc. Rep. 370; affd., sub nomine Herzog v. Title Guarantee & Trust Company, 210 N. Y. 531). In that case real property was deeded to a trustee in trust to pay the net income to the grantor during life; after his death to pay all net income to such persons as might be designated in the last will of the grantor, or, in default of a will, to his widow and next of kin; upon the termination of the trust, which was limited to the lives of two of his children, to distribute the estate as provided in the will, or in default of a will, to the grantor’s heirs at law. The will devised such real property, subject to the trust deed, to trustees to dispose of the same as provided in the residuary clause of the will. That clause provided that the trustees, during the fives of the testator’s two children, should receive the rents and profits of his estate, pay an annuity to the widow, pay the remaining net income to the children, and, at the termination of the trust, distribute the estate to the children, share and share, alike, or to their respective heirs. It was held that the children became entitled to the trust income by virtue of the trust deed and that the will was effective merely to designate the beneficiaries under such deed. The court said that it becomes the duty of the trustee named in the trust deed to pay over the net income in equal shares to the testator’s children, who will thus receive it, not by virtue of the will, but by virtue of the trust deed in which the gift itself was contained.” The decision at Special Term was affirmed by this court, which quoted with approval the statement above recited and added the following: “ This is a proper interpretation of the will and deed and accordingly the net income should "be paid directly to the beneficiaries and not to the trustees under the will to be distributed by them.”

The case of Doctor v. Hughes (225 N. Y. 305), much relied upon by the respondents, holds nothing to the contrary. There the owner of property deeded the same to trustees to pay the rents and profits thereof to the grantor for life and after his death to convey the premises to the heirs at law of the grantor. The question in that case was whether the real estate would pass to the heirs at law by descent or by purchase. It was held that the trustees took only a life estate; that the grantor retained the fee; that the interest of the grantor would pass to his heirs as a reversion by operation of law, not as a remainder by virtue of the deed. The court merely applied the ancient rule that a reservation to the heirs of the grantor is equivalent to the reservation of a reversion to the grantor himself.” In our case the question is not whether the surplus income passes by descent or by purchase; the question is whether it passes by purchase under the trust deed or by purchase under the will. The provisions of section 102, Real Property Law (Cons. Laws, ch. 50), relied upon in the Hughes case, have no application here. Those provisions are as follows: “ Where an express trust is created, every legal estate and interest not embraced in' the trust, and not otherwise disposed of, shall remain in or revert to, the person creating the trust or his heirs.” In the Hughes case the estate, in relation to the devolution of which the decision was made, was not “ embraced in the trust.” In our case it is distinctly so embraced. Legal title to the securities, giving rise to surplus income, remained in the trustee after the death of the settlor, and the duty to collect and pay out surplus income still rests upon the trustee.

The Genet and McComb cases conclusively establish that the surplus income in question is not an asset of the estate of Angier B. Duke; that the right thereto passes by the trust deed and not by the will; that such income is not payable to the executors under the will for accumulation or disbursement; that the will can operate only as a designation of the beneficiaries of the trust; that the duty rests upon the trustee itself to pay over surplus income “ in quarterly installments to those who may be entitled thereto by virtue of the will,” or in default of such will ” to make payment to the next of kin of the settlor of the trust.

The will makes no reference to the trust. It in terms makes no- designation of beneficiaries to take thereunder. Nevertheless, designation may be present in the will by virtue of the terms of section 18 of the Personal Property Law (Cons. Laws, ch. 41), which are as follows: “ Personal property embraced in a power to bequeath, passes by a will or testament purporting to pass all the personal property of the testator; unless the intent, that the will or testament shall not operate as an execution of the power, appears-therein either expressly or by necessary implication.” The will in question does purport to pass all the personal property of the testator, including all rights, powers and interests in ” property owned by him. Howev'er, if the testator made dispositions of his property which by their very nature are inapplicable to the subject of the power, the intent of the testator not to execute the power would by necessary implication ” appear and the power would fail of exercise.

The testator did not himself determine the persons to whom specific securities or properties should pass, and thus, by the indirect method of bequeathing to particular persons properties necessarily inclusive of the subject of the power, accomplish a designation of beneficiaries entitled to the surplus trust income. The allotment of specific securities and properties to particular legatees and the devotion of such properties to specific purposes was committed by the testator into the hands of his executors. Thus, if the testator made an appointment of beneficiaries to receive the trust income, he may be said to have done so only through an allotment to be made by his executors within the terms of the will. The question is, therefore, May the executors, in accordance with the terms of the will, make a disposition of the trust income, or direct a disposition to be made thereof, which will conform with the terms of the trust indenture, the general purposes of the will, and with the statute law which may be applicable.

The executors were authorized by the will, after the payment of certain specific legacies, to apply to the payment of the testator’s debts such part of his remaining assets, as might be necessary. May the executors direct the trustee finder the trust indenture to apply surplus income to that end? It seems clear that the testator could not have contemplated such a disposition of trust income. He could not well have supposed that his .creditors would consent to deferred payments of their claims, in quarterly installments through a series of years, when the estate was otherwise amply supplied with funds to make full and immediate satisfaction. Manifestly the testator could not have intended the trust income to be so used. Moreover, it would seem to be clear that the devotion of stich income to that purpose would accomplish an unlawful accumulation. An unlawful accumulation occurs not only when income is added directly to capital, but when capital is indirectly increased by the application of income to debts which otherwise diminish capital. (Hascall v. King, 162 N. Y. 134.)

We have shown that the executors were directed to cause an appraisal to be made of every asset of the estate; that the securities so appraised, after specific legacies and debts were paid, were to constitute the testator’s residuary estate; that the estate so constituted was to be divided into four parts; that “ one-fourth in value ” was bequeathed to the testator’s mother for life, with a remainder to his sister and others thereafter; that one-fourth in value ” was bequeathed to his sister, with a remainder to his mother and others thereafter; that one-fourth in value ” was bequeathed to a trustee for the benefit of Angier B. Duke, Jr., during his fife, and thereafter in per capita shares for the benefit,of the lineal descendants of Angier B. Duke, Jr., during the continuance of the trust, with the remainder in fee to such descendants; that “ one-fourth in value was bequeathed to a trustee in trust, upon similar terms, for the benefit of Anthony Newton Duke and his descendants.

May the executors, in apportioning one-fourth of the assets to the satisfaction of any one of the four bequests, include in the fund apportioned the right to surplus trust income at the capitalized valuation of $432,719.97? May they direct the trustees under the trust indenture to pay out the surplus income in accordance with the terms of one of the bequests and thereby accomplish a suitable designation of the persons named in such bequest as the beneficiaries entitled to surplus trust income? Under the terms of the trust indenture the payment of surplus trust income was to continue during the life of Cordelia B. Duke, and at her death to cease. In spite of actuarial computations, Cordelia B. Duke might die immediately following the making of the apportionment. In that event the set of' beneficiaries designated to receive the surplus income would thereafter enjoy a principal fund less by $432,719.97 than that to be enjoyed by the other three sets. Moreover, the value of the right to surplus income, regarded as an asset of the estate, would substantially diminish during each year that Cordelia B. Dukg continued to live, accordingly as her prospects of life grew less with advancing years. In the instance of each of the four bequests, therefore, owing to the wasting nature of the asset, regarded as an asset of the estate, those in remainder would take a principal fund of a value far less than the testator intended they should have, while the first takers, by their enjoyment of the full surplus income, would destroy in part or in whole the value of the right- thereto, considered as a capital asset. This would be true whether the executors directed the trustee to apply the surplus income upon one of the four bequests, to the exclusion of the other three, or equally upon the four bequests. Moreover, the testator’s directions were that one-fourth in value ” of his estate be paid either through a testamentary trustee or directly, to one of four named persons, for life. If the right to surplus income, at the valuation of $432,719.97, were to enter into such “ one-fourth,” any life taker, receiving, from the trustee under the indenture, the entire surplus income, would take a sum in excess of the use of $432,719.97, and, therefore, in excess of the income on one-fourth of the estate, as directed by the testator.

The testamentary trustee urges that, in order to maintain a proper balance between the four sets of beneficiaries, as well as between the first taker and the remaindermen of any one set, sufficient sums should be reserved from surplus income to make good the annual loss in value of the right to such income, regarded as a capital asset. Where an asset of an estate is of a wasting character, an asset “which may be consumed in the using,” such a method of amortization, in the absence of a testator’s direction to the contrary, is ordinarily employed. (Howe v. Earl of Dartmouth, 7 Vesey’s Ch. Rep. 137; Cairns v. Chaubert; 9 Paige Ch. 160; Matter of Elsner, 210 App. Div. 575.) Doubtless no illegal accumulation results, since the apparent income is used not to increase but to preserve the capital fund, and since, moreover, the apparent income, to the extent that its disbursement may impair capital, in itself partakes of the nature of principal. There are, however, compelling reasons why no amortization may be had in the case at bar. In the first place it is basically unsound to regard the right to surplus income as a capital asset of the estate of Angier B. Duke. As we have shown, title to such income passes by the trust indenture and not by the will, so that the right thereto is not an asset of the estate over which the executors have control. The income may not be paid to the executors; it must be paid directly by the trustee to the beneficiaries named by the mil, if any. (Herzog v. Title Guarantee & Trust Co., supra.) Therefore, the executors, since they will never receive the fund, may never put into effect plans of amortization to preserve it. In the second place, no part of the surplus income received by the trustee under the trust indenture may be reserved by it for amortization purposes. It is expressly provided in the indenture that all surplus income received shall be paid annually in quarterly installments so long as the trust shall continue ” to the grantor of the trust estate and after his death to persons designated by the will of the grantor. The trustee must disburse annually to the beneficiaries; it may not reserve or accumulate any portion of surplus income. Therefore, amortization may not be had, either through the auspices of the executors or of the trustee, and no plan of amortization is available to help out the will as a suitable instrument of designation of persons to receive the trust income.

The will provides in relation to the one-fourth of which Angier B. Duke, Jr., was to be the first taker, as well as to the one-fourth of which Anthony Newton Duke was to be the first taker, that each one-fourth share be paid over to the Farmers’ Loan and Trust Company, as trustee. That trustee is not directed to pay income on either one-fourth share directly to Angier B. Duke, Jr., or to Anthony Newton Duke. On the contrary, it is required to “ pay, apply and distribute the same to and for the support, education and maintenance,” in one instance, of my son Angier B. Duke, Jr., so long as he shall live ” and of his descendants after his death, and, in the other instance, for the support of my son Anthony Newton Duke ” and his descendants. The will provides that such payments shall be in such amounts and at such times as in the uncontrolled discretion of such trustee may be by it deemed necessary and advantageous for such purposes.” It will be remembered that in Herzog v. Title Guarantee & Trust Co. (supra) there was a deed to a trustee of certain property with directions to pay net income as directed by the grantor’s will; that the grantor made a will whereby he appointed a testamentary trustee to receive and pay out the net income to certain persons named. It was held that this was a sufficient designation of the beneficiaries under the trust deed. It was also held, however, that the disbursement to these beneficiaries must be directly made by the trustee under the deed and not by the trustee under the will. In that case there were no provisions in the will requiring the testamentary trustee to exercise discretion as to the amounts to be paid the beneficiaries. Therefore, the trustee under the deed could pay the entire income to the beneficiaries and comply with the terms of the will. In our case, as in the Herzog case, the trustee under the trust indenture must pay, if at all, directly to the beneficiaries named. It may not pay to the testamentary trustee. Therefore, in reference to surplus income, there would be no opportunity for the testamentary trustee to exercise discretion as to the amounts to be paid to the two children. On the other hand, the trustee under the trust indenture could exercise none, for its duty, as we have seen, was to disburse the surplus income annually in quarterly installments to those entitled thereto. Besides, discretion was committed not to it but only to the testamentary trustee. It is clear that Angier B. Duke, as testator, did not intend his two children to be named as beneficiaries to receive directly the full surplus income of the trust fund. ' It is equally clear that Angier B. Duke, as the grantor of the trust, did not intend that surplus income should be paid to beneficiaries in such sums only as might be required for their support and otherwise that it should be retained by his trustee.

We thus find that the trust indenture, the source of title, and the will, relied upon by the respondents as an instrument of designation of trust beneficiaries, are incapable of reconciliation. The will requires, as stated, that the testator’s estate be divided into four equal parts; .that the four funds, after their enjoyment for life by persons named, shall pass intact, unimpaired by the life uses, to remaindermen named. We have seen that the surplus trust income is not adapted, and may not be adjusted, to such dispositions. In respect to two of the funds, only such income thereupon as may seem proper to the testamentary trustee may be paid to the life beneficiaries, the two children. We have seen that the surplus trust income cannot be adjusted to these testamentary dispositions without doing violence to the provisions of the trust indenture. Clearly, the will of the testator, as an instrument of designation supplementing the trust indenture, since it is incompatible therewith, is unsuited to the task.

The will, it is true, does purport to dispose of “all rights, powers and interests in, over and concerning property of every kind ” belonging to the testator. It is argued that the reference to “ powers ” conclusively shows that the testator intended to exercise the power of appointment reserved by the trust indenture. That paragraph of the will, which contains the clause referred to and directs the executors to make an inventory, contains also the following clause: “All property of whatever kind and wherever situate which the will of my father or the will of my mother either gives me or gives the right to dispose of by my will shall be included in such inventory and appraisal, it being my intention that this and the succeeding provisions of this will shall be an exercise of any such power or disposition by will given me either by the will of my father or the will of my mother.” It is significant that neither this clause nor any other clause in the will specifically refers to the power reserved by the trust indenture. The omission gives color to the thought that the word “ powers ” in the clause first above mentioned refers only to powers under the will of the father and mother of the testator and that the testator, therefore, did not intend to make a disposition or a designation in reference to surplus trust income. The conclusion which we have reached, however, does not require us to go to the length of holding that the testator did not, within the meaning of section 18 of the Personal Property Law, leave a will purporting to pass all the personal property of the testator.” It is sufficient if the intent of the testator “ that the will or testament shall not operate as an execution of the power, appears therein either expressly or by necessary implica•tion.” The testator’s reserved power under the trust indenture was a power to appoint by will. No power to ■appoint by deed was given. Therefore, the absolute power of disposition over surplus trust income, and ownership thereof, did not reside in him. (Genet v. Hunt, supra.) The testator had no right to appoint beneficiaries to take surplus income otherwise than from the hands of the trustee of the trust indenture upon such terms and according to such dispositions as were therein prescribed. His sole authority to make the appointments was the trust indenture. If he made appointments to take otherwise than as prescribed by the indenture he did not execute the power. We think that the testator made no appointment or disposition, and intended to make none, which was consonant with the power reserved. Therefore, we think that the will fails as an instrument of designation and that the trustee under the trust indenture should pay out the surplus trust income in equal shares to Angier B. Duke, Jr., and Anthony Newton Duke, the next of kin of the testator.

The judgment of the Appellate Division and that of the Special Term should be reversed and judgment ordered directing the trustee, the plaintiff, to make payment as herein provided, with costs in all courts to all the parties appearing, payable out of the fund.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.

Judgment accordingly.


author: Pound, J.

text:
    In the Matter of the Accounting of Furman Clayton, as Executor of Mary C. Durbrow, Deceased, Respondent. Faith Home for Incurables et al., Appellants; Edward W. Curtis, Jr., et al., Respondents.
    (Argued June 10, 1927;
    decided July 20, 1927.)
    Will — gifts for charitable and religious purposes will be given effect if possible under most liberal rules of construction — direction for distribution of residue where “ it will be most effective in advancement of Christ’s Kingdom on earth” in its nature religious, and valid — trust will be implied — not affected by indefiniteness of beneficiaries.
    1. Where the intention to make a gift for charitable and religious purposes pervades and dominates a bequest the court will give it effect if it is possible so to do by the application of the most liberal rules of construction that the law will permit. If the gift is so indefinite and uncertain as to include uses which are not in a broad sense charitable and religious, but may be personal, private or selfish in their character, its benevolent purpose will not save it, but if a definite charitable purpose may be found within the limits of a testator’s language; if it is reasonably clear that a testator had in mind that his bequest should be devoted only to purposes of charity, his language should be construed in a broad and liberal spirit in accordance with his intention and the gift upheld, although the will may be susceptible of a construction which would permit the gift to be used for private or secular purposes.
    2. The expressed purpose of the residuary clause of a will, directing the executor to distribute the residue where he “ shall consider it will be most effective in the advancement of Christ’s Kingdom on earth,” is to promote the cause of the Christian religion in the .most general sense and is for charitable and religious uses. A holding, therefore, that the provision is so indefinite and uncertain in its objects and purposes that it is impossible for the courts to administer it and that possible devotion of the fund in whole or in part to private uses also makes it invalid, is unsound. (Matter of Shattuck, 193 N. Y. 446, limited.)
    3. A gift in trust will be implied and the trust is not affected by ■ indefiniteness of beneficiaries. (Pers. Prop. Law, § 12; Real Prop. Law, § 113.)

      Matter of Durbrow, 218 App. Div. 317, reversed.

      Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 12, 1926, which reversed a decree of the Kings County Surrogate’s Court judicially settling the accounts of the executor and construing the will of Mary C. Durbrow, deceased.

      Robert H. Wilson, Jr., for appellants.
    Paragraph 28 of the will provides for a gift, grant, devise ahd bequest to religious, educational, charitable and benevolent uses. (Matter of MacDowell, 217 N. Y. 454; Matter of Robinson, 203 N. Y. 380; Matter of Shattuck, 193 N. Y. 466; Butterworth v. Keeler, 219 N. Y. 446; Matter of Rockefeller, 177 App. Div. 786; Matter of Mills, 121 Misc. Rep. 147.) A trust for religious, educational, charitable and benevolent uses was created by paragraph 28 of the will of the decedent. (Butterworth v. Keeler, 219 N. Y. 446; Matter of MacDowell, 217 N. Y. 454; Matter of Cunningham, 206 N. Y. 601; Matter of Robinson, 203 N. Y. 380; Bowman v. Domestic & Foreign Missionary Society, 182 N. Y. 494; Matter of Griffin, 167 N. Y. 71; Allen v. Stevens, 161 N. Y. 122; Matter of Briglin, 208 App. Div. 511; Matter of Potts, 205 App. Div. 147; Matter of Davidge, 200 App. Div. 437; Morss v. Allin, 181 App. Div. 79; Matter of Rockefeller, 177 App. Div. 786; Matter of Groot, 173 App. Div. 436.) The argument of the Appellate Division, that no trust was created by reason that “No estate was vested in the executor,” is erroneous. (Matter of Robinson, 203 N. Y. 380; Matter of Griffin, 167 N. Y. 71; Allen v. Stevens, 161 N. Y. 122; Matter of Potts, 205 App. Div. 147; Matter of Groot, 173 App. Div. 436; Buell v. Gardner, 83 Misc. Rep. 513; Morse v. Morse, 85 N. Y. 53; Title Guarantee & Trust Co. v. Haven, 214 N. Y. 468; Striker v. Daly, 223 N. Y. 468; Matter of Ardrey, 232 N. Y. 109; Orton v. Tannenbaum, 194 App. Div. 214; Matter of Miller, 149 App. Div. 113; Wright v. Mercein, 43 Misc. Rep. 414.) Indefiniteness or uncertainty of the beneficiary does not invalidate a trust for religious, educational, charitable or benevolent uses. (Butterworth v. Keeler, 219 N. Y. 446; Matter of MacDowell, 217 N. Y. 454; Matter of Cunningham, 206 N. Y. 601; Matter of Robinson, 203 N. Y. 380; Matter of Griffin, 167 N. Y. 71; Allen v. Stevens, 161 N. Y. 122; Matter of Briglin, 208 App. Div. 511; Matter of Potts, 205 App. Div. 147; Stewart v. Franchetti, 167 App. Div. 541; Matter of Miller, 149 App. Div. 113; Manley v. Fiske, 139 App. Div. 665; 201 N. Y. 546; Matter of Frasch, 125 Misc. Rep. 381; 216 App. Div. 797.) The contention that the provisions of the testatrix’s will are so indefinite and uncertain in their objects and purposes that it is impossible for the courts to administer it, is erroneous. (Matter of Robinson, 203 N. Y. 380; Allen v. Stevens, 161 N. Y. 122; Matter of Griffin, 167 N. Y. 71; Bowman v. Domestic & Foreign Missionary Society, 182 N. Y. 494; Matter of Potts, 205 App. Div. 147; Matter of Miller, 149 App. Div. 113; Matter of MacDowell, 217 N. Y. 454.) The contention that the possible devotion of the trust fund to private uses necessarily requires that the gift be held invalid is erroneous. (Buell v. Gardner, 83 Misc. Rep. 513; Matter of MacDowell, 217 N. Y. 454; Matter of Cunningham, 206 N. Y. 601; Matter of Frasch, 125 Misc. Rep. 381; 216 App. Div. 797; Manley v. Fiske, 139 App. Div. 665; Matter of Killen, 124 Misc. Rep. 720; Utica Trust & Deposit Co. v. Thomson, 87 Misc. Rep. 31.)

      George P. Fall for executor, respondent.
    The order of the Appellate Division should be reversed and the decree of the surrogate should be affirmed because testatrix did not die intestate as to her residuary estate but created a power in trust. (Matter of Conger, 81 App. Div. 497; Matter of Arnolt, 217 N. Y. Supp. 327; Matter of Barney, 207 App. Div. 27; Matter of Smith, 46 Misc. Rep. 213; Bliven v. Simmons, 88 N. Y. 469; Matter of Compton, 72 Misc. Rep. 292; Matter of Ardrey, 232 N. Y. 111; Kelly
      v. Hoey, 35 App. Div. 277; Cutting v. Hoey, 86 N. Y. 552; Matter of Cooksey, 182 N. Y. 92; Matter of Moehring, 154 N. Y. 423; Matter of Wilkins, 90 App. Div. 324.)

      Isaac N. Jacobson for Edward W. Curtis, Jr., et al., respondents.
    The twenty-eighth clause of the will does not create a trust. (Bird v. Merklee, 144 N. Y. 544; Wetmore v. Parker, 52 N. Y. 450; Fralick v. Lyford, 107 App. Div. 543; 187 N. Y. 524.) The residuary clause does not create a valid gift. (Matter of Ingersoll, 131 N. Y. 573; Levy v. Levy, 33 N. Y. 97; Beekman v. Bonsor, 23 N. Y. 298; Thorn v. Hall, 10 App. Div. 412; 160 N. Y. 661.) The twenty-eighth clause does not create' a valid power in trust. (Tilden v. Green, 130 N. Y. 29; Farmers’ L. & T. Co. v. Carroll, 5 Barb. 613; Schell v. Merklee, 75 Hun, 74; Levy v. Levy, 33 N. Y. 97; Read v. Williams, 125 N. Y. 560; Holland v. Allcock, 108 N. Y. 312; Fosdick v. Town of Hempstead, 125 N. Y. 581; Matter of Ingersoll, 131 N. Y. 573; Fairchild v. Edson, 154 N. Y. 199.) Even if this clause creates a trust, it is so indefinite and uncertain in its objects and purposes as to be incapable of enforcement, and is, therefore, invalid. (Tilden v. Green, 130 N. Y. 29; Matter of Shattuck, 193 N. Y. 446; Manley v. Fiske, 139 App. Div. 665; 201 N. Y. 546; Matter of Compton, 72 Misc. Rep. 289; Matter of Seymour, 67 Misc. Rep. 347.)

      Albert Ottinger, Attorney-General (Robert P. Beyer of counsel), for respondent.
    The trust under construction is valid as a trust for religious uses. (Matter of Shattuck, 193 N. Y. 446; Matter of Robinson, 2(33 N. Y. 380; Manley v. Fiske, 139 App. Div. 665; 201 N. Y. 546; Matter of Cunningham, 76 Misc. Rep. 120; 151 App. Div. 940; 206 N. Y. 601; Matter of MacDowell, 217 N. Y. 454; Lougheed v. Dykeman’s Baptist Church, 129 N. Y. 211; Wetmore v. Parker, 52 N. Y. 450; Reformed Protestant Dutch Church v. Mott, 7 Paige, 77; Holmes v. Mead, 52
      N. Y. 332; Auburn Theological Seminary v. Kellogg, 16 N. Y. 83; Williams v. Williams, 8 N. Y. 525; Congregational Unitarian Soc. v. Hale, 29 App. Div. 396.)
   Pound, J.

The question is as to the validity of the twenty-eighth clause of the will of Mary C. Durbrow, deceased, a childless widow, which reads as follows:

“ Twenty-eighth. All the rest, residue and remainder of my estate, real as well as personal and wheresoever situate, of which I may die seized or possessed, I direct my Executor or Executrix hereinafter named to distribute where he, or she as his successor or substitute, in his or her judgment shall consider it will be most effective in the advancement of Christ’s Kingdom on earth.”

The residue of the estate is between five and six thousand dollars. The executor has selected as beneficiaries certain incorporated associations of a charitable and pious character which are the appellants herein. The validity of the bequest is contested by the next of kin of testatrix who contend that it is void for indefiniteness and uncertainty of purpose.

While the bequest is in the figurative form of a direction to the executor to dispose of the residue of the estate in the advancement of Christ’s Kingdom on earth,” its general purpose, and meaning, read with the aid of our common knowledge of the speech of the devout, are understood without difficulty. Christ’s Kingdom on earth is the community or whole body of Christ’s faithful people collectively; all those who are spiritually united to Christ as the Head of the Church without regard to differences of creed and doctrine. Its cause is advanced in divers manners, conspicuously through the work of religious associations and educational and charitable institutions of a religious character. Such work is in its nature charitable and uncommercial. It is identified not only with the dissemination of Christian doctrine but also with the teaching of the young and the care of the sick under church auspices. Charity and education have thus ever been the handmaids of religion. By the terminology of evangelical Christianity, the bequest is one in aid of Christian xyork in its broadest sense; to carry Christ’s message throughout the world; to care for the sick and to bring up the young under religious teaching; to promote the principles and practice of the Christian religion. For these purposes, the church seeks and obtains the eleemosynary contributions of the laity, not for private gain but for the aid of pious institutions and objects of every nature. The advancement of religion has ever been held to be one of the principal divisions of charitable trusts. (Morice v. Bishop of Durham, 10 Ves. Jr. 522, 531; Income Tax Coms, v. Pemsel, [1891] A. C. 531, 583.)

The intention to make a gift for charitable and religious purposes pervades and dominates the whole bequest and the court will give it effect if it is possible so to do by the application of the most liberal rules of construction that the law will permit. (Harrington v. Pier, 105 Wis. 485.) If, however, the gift thus sought to be established, as distinguished from its beneficiaries, is so indefinite and uncertain as to' include uses which are not in a broad sense charitable and religious, but may be personal, private or selfish in their character, its benevolent purpose will not save it. (Matter of Cunningham, 206 N. Y. 601, 605; Matter of Frasch, 245 N. Y. 174, 182.) If, on the other hand, a definite charitable purpose may be found within the limits of a testator’s language; if, for example, it is reasonably clear that a testator had in mind that his bequest should be devoted only to purposes of Christian charity, his language should be construed in a broad and liberal spirit in accordance with his intention and the gift upheld, although the will may be susceptible of a construction which would permit the gift to be used for private or secular purposes. (Gill v. Atty.-Gen., 197 Mass. 232; Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, supra; Matter of MacDowell, 217 N. Y. 454; Butterworth v. Keeler, 219 N. Y. 446; Matter of Morris, 227 N. Y. 141, 144; Matter of Frasch, supra.)

The Appellate Division, reversing the Surrogate’s Court, has held that the provision before us is so indefinite and uncertain in its objects and purposes that it is impossible for the courts to administer it and that the possible devotion of the fund in whole or in part to private uses also makes it invalid. This conclusion seems unsound. It is based on Matter of Shattuck (193 N. Y. 446) which has been strictly confined to its own facts by later and better considered cases. (Butterfield v. Keeler, supra, p. 450; Matter of Frasch, supra, pp. 183, 184.) The court in Matter of Cunningham (supra) construed the following bequest: I give and bequeath to my said executors and trustees, hereinafter named, the sum of fifty thousand dollars to be by them applied in their best judgment and discretion to such charitable and benevolent associations and institutions of learning for the general uses and purposes of such associations and institutions as my said executors may select, and in such sums respectively as they may deem proper,” and upheld it as a charitable trust which ought not to be allowed to fail either on account of the indefiniteness of the purpose of the testator or the indefiniteness of the beneficiaries,” although it was possible that by a contrarious reading of its terms it might be devoted in whole or in part to private institutions of learning.

Broadness of scope and generality of purpose do not in themselves breed impossibility of execution. Willard Bartlett, J., in the course of the Cunningham opinion said: In Whicker v. Hume (7 House of Lords Cases, 123, 154) there was a bequest of personal property ‘ upon trust to apply and appropriate the same in such manner as the said trustees or trustee shall, in their absolute and uncontrolled discretion, think proper and expedient for the benefit, and advancement and propagation of education and learning in every part of the world.’ It was objected that the gift was of such an extensive nature that it was impossible to carry it into effect; but Lord Chelmsford held that the purpose of the testator was to promote teaching and instruction, and the circumstance that the whole habitable world was open to the discretion of the trustees did not prevent the gift from being available as a good charitable bequest.”

Such bequests should not be read in an antagonistic spirit to disappoint the general intention of the will. As Gray, J., said in Greene v. Greene (125 N. Y. 506, 512) : “ The endeavor is to find a way of .upholding the will, not of breaking it down; and thus in every case the inherent purpose, if lawful, should be effectuated through what legal channels of construction may be open.”

Although a wide diversity of judicial opinion exists as to the meaning which should be given to the words indefiniteness of purpose ” in this connection (Bogert on Trusts, pp. 200-204), a rule of generous construction manifests itself in the more recent decisions of this court. Thus to sustain a charitable gift the word institutions ” had been read to mean “ public institutions.” (Matter of Frasch, supra.) In the light of these decisions, words of unlimited discretion, inspired, when properly understood, with naught but unselfishness and religious purpose, readily may be, and should be, construed as being limited to suitable objects of charitable and religious gifts. The bequest is thereby preserved from destruction and devoted to the uses for which the testator intended it, rather than given to contentious next of kin. To hold this gift to be too indefinite and uncertain would be to disregard the elementary principles of the law of charitable uses. Its expressed purpose is to promote the cause of the Christian religion in the most general sense and it should be carried into effect accordingly.

Although the general charitable purpose of the gift as thus construed is not indefinite, the beneficiaries are indefinite, but the trust is not affected thereby. Definite legal gifts in trust, religious and charitable in character, are not, since the adoption of the Tilden Act (L. 1893, ch. 701), to be declared invalid by reason of indefiniteness of beneficiaries. "No * * * bequest * * * to religious, educational, charitable, or benevolent uses, which shall, in other respects be valid under the laws of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries * * (Personal Property Law [Cons. Laws, ch. 41], § 12; see, also, Real Property Law [Cons. Laws, ch. 50], § 113.)

Objection is made that testatrix made no formal gift in trust. A gift in trust will be implied. In Manley v. Fiske (139 App. Div. 665; affd., 201 N. Y. 546) the testator said in substance: “ I desire my executors to divide the surplus among societies which will assist poor needlewomen.” Miller, J., writing for the Appellate Division, said: “ It is next contended, however, that the statute was intended only to save trusts for charitable uses, and that no trust was created. It is true that there are no express words creating a trust, as there are no express words of gift; but it is quite plain that a trust was intended. A trust is almost inseparably involved with a gift for charitable uses. * * * I see no difficulty in the way of upholding this provision as a trust for charitable uses, the object of it being the assistance of poor needlewomen.”

The gift being upheld, respondents, the next of kin, are not interested in its administration. The question of proper beneficiaries is not before us for review. The Attorney-General, whose duty it is to enforce uncertain and indefinite charitable trusts (Personal Property Law, § 12, subd. 3), appears and asks us to reverse the Appellate Division and affirm the surrogate. We have on this appeal no concern either with the authority of the executor to act as trustee or with the particular disposition made of the fund by him, but we do not mean to be understood, by refraining from a discussion of these questions, as intimating any disapproval of the decree of the Surrogate’s Court in this connection.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division payable out of the estate.

Cardozo, Ch. J., Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Ordered accordingly.