In re the Proceedings for the Probate of the Last Will and Testament of Shattuck , 118 A.D. 888 ( 1907 )

Kellogg, J.:

By the 8th clause of the will the testatrix gave all of the residue of her real and personal estate to her executor, in trust, however, “the rents, profits and income thereof to be expended by him annually and to be paid over to religious, educational or eleemosynary institutions, as in his judgment shall seem advisable, not more than $500, however, to be paid to any one such institution in any one year.”

Section 6 of chapter 319 of the Laws of 1848 (as amd. by Law's of 1903, chap. 623), providing that certain corporations shall not take more than one-lialf of an estate under a will made within two months of the death of a testator, applies only to corporations formed under that act; other corporations are unhampered by the provisions of section 6, the only surviving section of the original statute. (Matter of Lampson, 161 N. Y. 511-520.)

•It is urged by the appellant that the trustee has power under the will to so distribute the estate that corporations formed under the original act of 1848 may receive the benefits of it in violation of that act, and that while the will provides for the payment of the income to religious, educational and eleemosynary institutions, that the educational institutions may be public or private, may be conducted as a charity or for gain¿ and that the trustee may so administer the trust that educational institutions conducted for the purpose of gain may receive all or a part of the income from the estate.

These contentions overlook the fact that the will itself, "by giving the income to such corporations, shows an intent 'that it shall be used for. the charitable purposes which those institutions represent,, and that section 2 of chapter 70Í of . the Laws- of 1893 (as amd. by Laws of 1901, chap. 291), which act is entitled “An act to regulate gifts for charitable purposes,” provides that the Supreme Court “shall have control over gifts, grants, bequests and devises in all cases, provided for by section one of this act,” and the act relates to gifts for the uses indicated by this will. The Supreme Court, therefore, may be appealed to at any time to require that- this gift take tire course indicated, and "that it shall not go to societies incompetent under the law of taking it, or be used by any society for a purpose not contemplated by the statute or the testator.

The will is indefinite as to any particular institution or any particular charitable purpose, but the mere indefiniteness of the provision ivhen the purpose of it is ascertained to be of a charitable nature does not invalidate it. (Allen v. Stevens, 161 N. Y. 122.)

It is apparent that the testatrix intended, her property for the charitable uses indicated by the class of institutions to which she has directed the moneys to be paid, and the Supreme Court, from time to time, will see that the fund is properly administered and that it goes into the channels contemplated by the testatrix and the statute.

The decree of the surrogate should be affirmed. Mo costs are awarded against the special guardian, appellant.

Decree unanimously affirmed, with costs.