App. Div.] First Department, November, 1913. society; but through it to apply the estate to the charitable purposes for which the society was organized. The society itself is a trustee, and has a trust to perform, which a court of equity would undoubtedly enforce." The senator then puts these questions: Suppose the corporation were dissolved, or should otherwise become incapable of executing the trust, would not the court appoint a new trustee? or, suppose the corporate powers be enlarged, and it be authorized to do a banking business in addition to the charitable operations for which it was originally incorporated, would it be contended that it was the testator's intention that the proceeds of his devise should be used as banking capital? In Owens v. Missionary Society of M. E. Church (supra, p. 385) Judge SELDEN resorts to a similar illustration. In the light of the foregoing the situation, unless changed by some other and controlling feature, would seem to be very plain. It involves nothing more than the fundamental elements of a valid testamentary trust of the usual kind, namely, a sufficient expression of intent and an ascertained (or ascertainable) beneficiary; these being declared, whether the beneficiary be a definite person or a corporation capable of taking, the law will fasten the trust upon him who has the legal estate, whether the grantor, heir, testator or next of kin, as the case may be. (See Holland v. Alcock, supra, 330.) * * * That the incorporation of the trustees did not divest or change the nature of the trust seems clear. The language of the minority of the court in the Inglis case is in accord with this view. On this point Mr. Justice STORY said (pp. 153, 154): "It is said that if the trust be valid the Legislature had a perfect right to enforce it, and their act of incorporation amounts to a legal execution of the trusts and vests the estate in the corporation But I cannot admit that the act of incorporation was intended to have such an effect. It has no terms which divest the legal title of the heirs, it merely incorporates the trustees and their successors, and clothes them with the usual powers to carry the trust into effect. It presupposes that the estate was already vested in them by the will. They are made capable in law of holding and disposing of the estate' devised by the will. It is true that the First Department, November, 1913. [Vol. 158. uses are added and the same (estate) is hereby declared to be vested in them and their successors in office for the purposes therein (in the will) expressed.' But this was not, as I think, intended to vest the estate in them as a legislative investiture; but to declare that the estate was vested in them for the purposes of the charity and not otherwise." In Trustees of Dartmouth College v. Woodward (4 Wheat. 518) the court, referring particularly to the original private foundation of Dartmouth College, the administration of which was succeeded by an incorporated body, said: "From the fact that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution * The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed and the objects for which they are created" (p. 638). * ** * * Of a charter granted subsequent to a foundation established by a deed or will, Tudor says (Tudor Char. & Mort. [4th ed.] 185): "Here the charter is merely machinery for providing an incorporated trustee armed with appropriate powers to carry into effect a pre-existing trust, and the grant of such a charter does not in any way affect the powers of the court to establish and regulate the charity." (See, also, 2 Perry Trusts [5th ed.], § 743; Attorney-Gen. v. Governors of Free Grammar School, 23 Beav. 350; Matter of Manchester Royal Infirmary, L. R. 43 Ch. Div. 420, 428.) And this coincides with such late expressions as are to be found on the subject in this State. In Dammert v. Osborn (140 N. Y. 30, 42) the court said of an act somewhat similar to the one in question: "It is an expression of the will of the supreme legislative power that the gift in question should be received and administered in the manner and for the objects designated in the will The Legislature in effect said that this gift shall take effect according to the intention of the donor and be administered by a corporate body of its own creation." * * * * * * In none of the very numerous cases in England and in this country, where the courts have exercised jurisdiction to establish direct or administer charitable trusts, of which corporations were the donees, have I found one where, in the absence of some statutory provision affecting its jurisdiction, it has been sug App. Div.] First Department, November, 1913. gested that the mere fact that the trust was to be executed by a corporation, deprived the court of its power to exercise its usual jurisdiction in similar matters. In fact, there is no authority to be found for such a proposition. I am satisfied that, as the result of the will and the act of 1806, there was established as between the corporation and the State (representing the ultimate and undefined beneficiaries), a trust relation of such a character as commonly exists in the case of a valid devise for a charitable use. "In England and in this country, where a court of chancery exists, a charity of the description in question is a peculiar subject of the jurisdiction of that court." (Per NELSON, J., Stanley v. Colt, 5 Wall. 119, 169.) Whether jurisdiction to direct or to administer, as distinguished from the power to establish, such a trust rests in the court's ordinary jurisdiction as a court of equity, or attaches only as an incident to its inherent jurisdiction over charities (Story Eq. Juris. [3d ed.] 1161, 1162, 1187-1192; Tudor Char. & Mort. [4th ed.] 181) presents, so far as this case is concerned, an academic question of interest to the student, but one which we need not determine. It will satisfy our purpose to find that in either aspect plenary jurisdiction exists. Assuming that jurisdiction rests in virtue of the charitable character of the trust, it will be instructive to ascertain the exact legal nature of the relief sought by this action. At the risk of extending this opinion beyond reasonable limits, because of its peculiar pertinency, I am led to quote from the decision in Lackland v. Walker (151 Mo. 210, 247 et seq.), a case of an estate affected by conditions similar to those alleged in the complaint to exist with respect to the Snug Harbor estate, but where the will expressly prohibited any alienation of the property. "The concrete question, therefore, is whether upon a proper showing, a court of chancery has the jurisdiction to authorize an out and out alienation of the property affected by the provisions of the will in question. Primarily it is clear that this involves no phase of what is known as the prerogative power of cy pres; for here there are a defined charity, a clear trust and competent trustees to hold the property to that end [citing cases]. Nor is it an instance which calls for the exercise of the usual judicial power of * * First Department, November, 1913. * [Vol. 158. cy pres for here the mode of accomplishing the charity, properly speaking, to wit: the provisions for the maintenance and extension of the Missouri Botannical Garden under the supervision of the trustees named, and for the accomplishment in other respects of the charitable ends mentioned in the will, are complete and not sought to be departed from [citing cases]. The petition invokes the exercise of the court's power of administration in respect of the forms to be observed in accomplishing and furthering both the object and mode prescribed by the testator. Broadly speaking, the expres sion 'cy pres power' defines a limitation as well as an affirmative authority. Where the case is one in which the chancellor can act in his judicial capacity, as distinguished from the power exercised in the English system by the Lord Chancellor as the representative of the Crown's sign-manual, the jurisdiction over charities is an inherent one, i. e., while courts of equity, as such, possess no power to create a charitable trust, they liberally exercise a jurisdiction to enforce and preserve such a trust, when it is valid in its creation In exercising this jurisdiction, the courts proceed cy pres; They give effect to the expressed charitable purposes of the donor as near as may be, and in supplying or remedying the defects disclosed in practice, they act in effectuation of the controlling purpose disclosed by the instrument presented for construction, so as to preserve and make useful what may be called the spirit of the charity' [citing cases]. It is a natural and necessary branch of the jurisdiction over charitable trusts that the means or details prescribed for their administration should be subject to be moulded so as to meet any exigency which may be disclosed by a change of circumstances and, to relieve the trust from a condition which imperils or endangers the charity itself or the funds provided for its endurement and maintenance * * But in the very nature of things the jurisdiction merely to vary the details of administration' is more liberally exercised * * * and indeed is perhaps more firmly established and more widely recognized than is that which is usually called the cy pres power of the court." In this situation what jurisdiction has our Supreme Court in the premises? If the relief sought is within its ordinary App. Div.] First Department, November, 1913. jurisdiction to direct trustees and administer trusts, nothing further need be said in its support. If it is a part of the jurisdiction peculiar to charities, I think it equally clear that the court possesses it. Conceding the law of charities to exist in this State, that the original jurisdiction of our former Court of Chancery extended to them is, of course, not questioned. (Williams v. Williams, 8 N. Y. 525, 558.) Although the doctrine of the Williams case was subsequently repudiated, this was only so far as it attempted to apply the law of charitable uses. (Owens v. Missionary Society of M. E. Church, supra, 390, 408; Holland v. Alcock, supra, 312.) The practical effect of the act of 1806, incorporating the plaintiffs herein, was to legalize this particular trust, if it was illegal (Inglis v. Trustees of Sailor's Snug Harbour, supra, 119), or at least to afford statutory means for its execution, if it was otherwise valid, (Per RAPALLO, J., Holland v. Alcock, supra, 336). But in whichever way one views it, whether as the removal of an inhibition against jurisdiction, or the reinvesting of powers theretofore taken away, upon the passage of the act of 1806 the jurisdiction of Chancery attached (See, per CULLEN, Ch. J., People ex rel. Swift v. Luce, 204 N. Y. 488, 489), and upon the abolition of that court, the powers and duties, not only of the Court of Chancery but of the chancellor, devolved upon the Supreme Court as such. (Butler v. Jarvis, 51 Hun, 268; People ex rel. Swift v. Luce, supra, 478, 487.) But notwithstanding I deem it clear that jurisdiction to grant the relief prayed for herein is inherently vested in this court, it is unnecessary to stand on this inherent jurisdiction alone. The Court of Appeals has several times said that by the Tilden Act the Legislature intended to restore to courts of equity that power to administer charitable trusts which they were declared to have in the Williams Case (supra). (Allen v. Stevens, 161 N. Y. 122, 141; Matter of Griffin, 167 id. 71, 80; Matter of Cunningham, 206 id. 601, 607.) The 1st section of this act, as amended (now Personal Prop. Law, § 12, as amd. supra; Real Prop. Law, § 113, as amd. supra), is granting, enabling and legalizing in its nature; the 2d (as amd. supra) relates wholly to adminisAPP. DIV.- VOL. CLVIII. 48 |