First Department, November, 1913. * * [Vol. 158. tration and expressly gives to this court "control" over all gifts of the character described in section 1, and in terms gives it authority, under proper circumstances, to "make an order directing that such gift * shall be administered or expended in such manner as in the judgment of the court will most effectually accomplish the general purpose" of the instrument of donation. It is true that the 1st section of the statute has been held not to apply to trusts created prior to its enactment. (People v. Powers, 147 N. Y. 104, 109; Murray v. Miller, 178 id. 316; Mount v. Tuttle, 183 id. 358.) This was because the Legislature was without power to alter the directions of a testator or to divert vested rights. (People v. Powers, supra, 109.) No such reason, however, prevents the application of section 2 to any and all trusts, whether theretofore or thereafter created, provided only they are within the class described in section 1. That the trust in question is so included cannot be doubted. I conclude, therefore, that the Tilden Act is cumulative and supplementary to the inherent jurisdiction of the court, affording an additional and concurrent source of jurisdiction in proper cases. Nor do I find that any limitation of this jurisdiction is to be inferred from the terms of the act of 1828 amending the act of 1806. The act of 1828 was clearly permissive. It allowed certain things to be done without commanding them. In the absence of unequivocal terms negativing the powers of such a court as was our Court of Chancery when this act was passed, a statute of this character is presumed not to have intended to impair its jurisdiction. The fact, therefore, that section 4 of the act of 1828 authorizes the trustees to lease its property affords no ground for inferring either an intention to restrain the corporation from selling or a purpose to restrict the court from exercising its jurisdiction in the premises when properly invoked. As to the right of the plaintiffs to institute this action, making the Attorney-General the sole party defendant, I have no doubt. The 3d subdivisions of the several sections of the Real and Personal Property Laws above referred to expressly provide that the Attorney-General "shall represent the beneficiaries," and prescribe it to "be his duty to enforce such trusts" as are covered by subdivision 1 of the several sections. First Department, November, 1913. App. Div.] This also is merely cumulative. From the earliest times the Attorney-General, in England and in other jurisdictions where trusts for charitable uses have been recognized, has been regarded as the representative of the uncertain beneficiaries of a charity. In Williams v. Williams (supra, 553) DENIO, J., refers to a case in this State in 1708 where the Attorney-General proceeded by information. In Andrews v. General Theological Sem. (8 N. Y. 559, 563), it appearing that no trustees were before the court representing a certain charitable legacy, leave was given to amend so as to make the Attorney-General a party. I am referred neither to statute nor authority to show that in this class of cases his functions have since been limited. On the contrary, both statute and unwritten law support the continuance of powers broad enough to include those in question. (Executive Law [Consol. Laws, chap. 18; Laws of 1909, chap. 23], $ 62, subd. 1; People v. Miner, 2 Lans. 396; Davis & Palmer v. Mayor, etc., 2 Duer, 663; People v. Powers, 83 Hun, 449; Allen v. Stevens, 33 App. Div. 485.) Although the last three cases were reversed (14 N. Y. 506; 147 id. 104; 161 id. 122), it was upon grounds which did not conflict with the views expressed below on the point in question. True, the reported cases are largely ones where the AttorneyGeneral has, by bill or information, proceeded against the trustee, but it is not essential that the trustee should rest inert until the apprehended loss or danger has become so imminent as to bring the situation of the estate to the attention of the Attorney-General, or that the trustee should proceed at its peril upon some questionable course until that official invokes the jurisdiction of the court to restrain it. Many cases support the right of the trustee to assume the initiative and to come into court for instructions or other proper relief. The following are illustrative of a long line of authorities: McCartee v. Orphan Asylum Society (supra, per JONES, Ch., 437, 482); Governors of Christ's Hospital v. Atty.-General (5 Hare, 257); Wardens, etc., of Clum Hospital v. Powys (6 Jurist, 252); Weeks v. Hobson (150 Mass. 377); Lackland v. Walker (supra); Academy of the Visitation v. Clemens (50 Mo. 167). Under the Tilden Act the proceeding contemplated seems to be by summary petition. But for many reasons this should not be construed as First Department, November, 1913. [Vol. 158. ousting the court of its ordinary jurisdiction by action. A somewhat similar situation seems to have arisen in England both under the 43d Elizabeth (Chap. 4) and 52d George III (Chap. 101), but the courts of that country held that the acts did not exclude their customary jurisdiction by bill. (See Tudor Char. & Mort. [4th ed.] 379, 382; Story Eq. Juris. [13th ed.] § 1147.) The objection that to grant the relief prayed for would in effect destroy a vested estate is without weight. The title is vested in the corporation charged with the trust under the will. The heirs of the testator have no interest, reversionary or otherwise. The uncertain beneficiaries of the trust, i. e., the "aged, decrepit and worn-out sailors," have no standing in court for any purpose. Their interests are in the care of the State as parens patriæ and are represented by the AttorneyGeneral. The numerous authorities are uniform in holding that in granting relief similar to that prayed for in this action courts do no more than mould the form of the devise to suit the necessity of changed conditions; no diversion of the gift is either sought or intended. (Stanley v. Colt, supra; Ould v. Washington Hospital, etc., 95 U. S. 303; Lackland v. Walker, supra.) Having thus disposed of all the objections to jurisdiction, the final question remains: Are the facts alleged prima facie sufficient to justify its exercise? The situation disclosed is not one of mere expediency but of an existing exigency. A longcontinued and progressive deterioration imperils the estate; and while the situation may not justify the fear that, if left to itself, the estate will either be annihilated or its net income be so reduced as to leave it insufficient to care for a number of beneficiaries equal to the original fifty named in the will, it is manifestly one which justifies the trustees in seeking an opportunity to make proof of the facts and to secure the authority and instructions of the court. (See Lackland v. Walker, supra, 265 et seq., where the authorities are collated.) The judgment should be reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. INGRAHAM, P. J., LAUGHLIN, SCOTT and DOWLING, JJ., concurred. App. Div.] First Department, November, 1913. INGRAHAM, P. J. (concurring): I concur with my brother HOTCHKISS in his opinion and merely wish to state what I consider to be the real question that is now before us. What the plaintiff asks for is a construction of the trust under which it holds the real property which was devised by Captain Randall's will and which from the probate of that will in 1801 has been administered by the trustees named in the will or by the corporation created by the act of 1806, i. e., one of the plaintiffs in this action. As to whether the court will construe this will or give the trustees instruction is not now before us, the sole question being whether upon the facts stated the plaintiffs or either of them have a right to apply to a court of equity for a construction of the will and an adjudication as to the powers of the trustees. I think it clear that the testator intended to convey this real property described in the complaint to the persons that he named in his will as trustees to carry out the trust outlined in the will. If the trust was a valid trust the title to the property vested in the trustees; if it was not a valid trust the trustees took no title and the title vested in the testator's heirs at law, or, if there were no heirs at law competent to take the real property, then the property escheated to the State. Of course the question as to whether this was a valid trust is not before us. Certain persons claiming to be heirs at law attacked the validity of this trust and their claim to the property was defeated in the courts, which judgment was subsequently affirmed by the Supreme Court of the United States. (Inglis v. Trustees of Sailor's Snug Harbour, 3 Pet. 137.) However that may be, for more than a hundred years this title has been held and enjoyed by the trustees named in the will or their successors, the corporation created by the Legislature of this State by the act of 1806, and there is no one now before us questioning the validity of the trust or the rightful ownership of the property by the trustee. I do not understand that the Attorney-General claims that by way of escheat or otherwise the title to this property has vested in the State, or that the State has any right to the property as its owner. And thus it seems to me there can be no doubt that the title to the property passed to the original devisees in trust to devote First Department, November, 1913. [Vol. 158. it to the purposes mentioned in the will. The will itself contained the provision that if this trust could not legally be carried out according to the testator's express intention without an act of the Legislature it was his will and desire that the trustees would, as soon as possible, apply for an act of the Legislature to incorporate them for the purposes above specified. To carry out this wish of the testator the trustees in the year 1806 applied to the Legislature, which passed an act, being chapter 4 of the laws of that year. The preamble of that act recited the will of the testator; that the testator had declared his intention to be that the said estate should, at all events, be applied to the purposes mentioned and to no other; and they prayed to be incorporated for the purposes expressed in the will. It was then enacted that the trustees named in the will and their successors by virtue of their said offices were constituted a body politic; they were declared to be capable in law of holding and disposing of the said real and personal estate according to the intention of the said will; and the same was declared to be vested in them and their successors in office for the purposes therein expressed, which involved the execution of the trust created by the will. I think it clear that by this act a corporation was created and vested with the title to the property held by the trustees to carry out the purposes of the will. Thus, so far as the State was concerned, it seems to me it released any title that it could have had by way of escheat or otherwise in the property in question to the corporation thereby created, and validated the trust if its legality was doubtful, and the corporation thereby became the owner of the property, in trust, however, for the purposes expressed in the will of the testator. Of course, if the testator had heirs at law capable of taking the property, this act of the Legislature could not have affected their interest, and if the testator had no heirs at law capable of taking and holding real property, the property escheated to the State, which had released its interest to the corporation as trustee for the purposes of the will. Therefore, so far as appears, title to the whole property had vested in the corporation in trust for those to be benefited as expressed by the testator, and since that time they have exercised that trust and applied the income of the property to the purposes expressed in |