#### Ferdinand Kurzman et al., Plaintiffs, *v.*Aurelia Lowy et al., Defendants.

(Supreme Court, New York Special Term,

April, 1898.)

Trusts — *Ai*stipendium established in Germany — Bequest to :the chief magistrate of Berlin, as patron of a Latin school —Indefiniteness' of beneficiaries — A trust shall1 not fail for want of a trustee.

A bequest to the chief magistrate of the city of Berlin, Germany, to establish, in a designated Latin .school of which he is jfhe patron,. the Bonnell-Gutmann Stipendium, with directions that, after their separate amounts have been fixed, the stipendium shall be granted to graduates, among other things, “ according to .the free judgment * * * of the director ¡or ¡College of Professors of the said Latin school and according to the need of the applicants ” is a valid disposition.

The designation of the' trustee, as chief magistrate, is sufficient- and he may be regarded as a *locum tenens.*

The trust is not .void for indefiniteness as to the beneficiaries, as,' in the eyent that (the] ¡director and the college professors should differ in the matter of ¡their selection, the chief magistrate would be justified in accepting the choice of the director or that of the) professors!

The refusal of a trustee .to act is not material nor is it to be presumed; and the court will not assume that, should it occur, ai foreign court would permit the trust to fail, but will asume that it would •appoint a trustee, ».

Action for the construction of a will.

Otto Horwitz, for plaintiffs.

Richard M. Bruno, for defendant Zelle.

Russell, J.

The .plaintiffs seek a construction of the will of Dr. Edward Gutmann, late of the city of Hew. York, who! in, early life was a native of Germany. The defendant Zelle is the chief magistrate, mayor or burgomaster of the city of Berlin, Germany, and the questions arising on this investigation are narrowed down to that of the lawfulness of the bequest to the defendant Zelle, or to him as chief magistrate of Berlin.

The provision in the original will is as follows:

“Second: I give and bequeath the sum of five thousand dollars to the Chief Magistrate of the City of Berlin, Prussia, IH TETTST, *381to be by him and his successors there safely invested, '.and the income used and applied to the purpose of the Bonnell-Gutmann Stipendium, as stated in the instrument in the German language by me written and hereto annexed, which I hereby make part of this will. In case this legacy should at any time be called in question, or be declared invalid, then I give and bequeath the sum of five thousand dollars herein mentioned to my said wife absolutely, with the hope that she will apply the same as in this clause of my will directed, but I expressly declare that the expression of this hope shall not be construed so as to impose any legal obligation on her to do so, or so as to create any trust of whatsoever kind, for the purpose hereinbefore mentioned. I expressly declare that the leg-. acy herein mentioned is not to be deemed a charge bn my real estate.”

The provision annexed to the will is as follows:

“ Testamentary provision in regard to the creation of ,a Stipendium for the graduates of the F riederich-W erder Latin School at Berlin. •

*“*1st: As soon as possible after my demise, I desire that $5000 be paid to the Chief ¡Magistrate of the City of Berlin, as the patron of the above mentioned Latin School, provided that no legal obstacles retard the execution of the subsequent provisions for the creation of a stipendium for graduates of the Friederich-W erder Latin School, said stipendium to be granted to graduates who desire to follow their studies at the Berlin University and who are worthy of such assistance. *

“ 2: The bequest is to be known as the BOHHELL-GUTMAH2T bequest.

“ 3: From the interest of the capital hereby bequeathed, one or more stipendia should be granted none for a longer period than four years, according to ¡the free judgment of the.authorities in charge respectively of the director or College of Professors of the said Latin School and according to the need of the applicants.

“ 4: Ho stipendium should be less than three hundred marks or more than four hundred and fifty marks per annum.

“ 5: In awarding said stipendia the religious belief of the applicant should under no circumstances be considered either in granting or refuting said stipendia. Gentiles as well as Hebrews should be equally eligible. The latter, however, should be primarily considered for the reason that the Friederich-Werder Latin School has only very few stipendia in which students of the Jewish *382faith are entitled, to participate. -But this consideration should not be carried so far that thereby. worthy Christian applicants should be overlooked. The testator, who himself has- been brought-up in the. Mosaic belief, desires by the foregoing provision only an impartial distribution in compliance with the tolerant spirit of the times. ' ;

“ 6: Only such students who enter- the physiological, medical, or law faculty of the University of Berlin shall be entitled to make application for stipendia. Positively excluded should be students of Christian or Hebrew Theology. '

“ 7: As it is the special desire of the testator to promote the ideal, that is to say the humanistic studies, such applicants should be specially considered who desire to devote themselves to the study of antiquity, be it classical philology, or history, special knowledge of antiquity or art history of Greece and Borne.

“ 8: Pupils of the uppermost class dr of the said Latin School should be informed in the proper manner of the existence and condition of this bequest so that applicants can file their written application for it in due time. . When the prerequisites of -capacity and need of circumstances equal, then the granting of the.stipendia should be governed by the time of leaving- said Latin School. Only in ul'gent cases of special need and profound capacity, should later applicants be preferred to those already placed on the eligible list.

> New Yobk, *June*19, 1883.

> Signed De. Edwabd Gutmanit.”

By the latest codicil the testator increased the bequest by a provision in these words:

“CODICIL.

“ Eor the proper execution of my last Will and Testament made and signed by me on the 27th day of February, 1891, I . -hereby give the following directions:

“By this above-named document I have ordered that $5000 shall be sent to the. Magistrate of the City of Berlin, Prussia, for the purpose of establishing the Bonnell-Gutmann Stipendium. I hereby order that instead of $5,000, the sum of thirty 'thousand .(30,000) marks Germany money, in full, shall be transmitted to said Magistrate to establish- this stipendium,

> “¡New Yobk, *April*9, 1895.

> “ Db. Edwabd Gutmann [l. s.].”

It is the policy.of the law of this state to allow testators free power to próvida for the disposition of personalty, which is to be *383taken to a foreign country, in accordance with the laws of that country. Such property as shall remain within the state of Mew York must be subject to the laws against perpetuities and forbidden trusts, for the laws of this state in that respect are designed to operate upon all the property within its limits. They are founded upon public policy which provides for proper power of disposition of property from person to person, without undue curtailment of the right in some one, within reasonable periods, to pass the title.

But the object of the law is satisfied if the property is to be removed from the jurisdiction of the state. It leaves the courts of that other state the power to guide and control the execution of the trusts and the fulfillment of the issues of the testator. Hope v. Brewer, 136 N. Y. 126; Chamberlain v. Chamberlain, 43 id. 424; Matter of Huss, 126 id. 537.

The. courts of this state [retain jurisdiction over the executors under a will probated here to adjudicate whether they have lawfully passed to properly designated legatees that portion of the property which the testator attempts to bequeath. For that purpose the courts here may inquire as to whether executors can pay over to legatees and whether a sufficiently specific designation has been made to justify payment.

It is not strenuously contended that the designation of the chief magistrate of the city of Berlin is insufficient. Though named officially he may receive, if not as an official, yét as an individual *locum tenons.*Inglis v. Trustees Sailors’ Snug Harbor, 3 Peters, 99.

But it is strongly urged that the purpose of the trust is too indefinite. - H so, it may be that a mere naked holding for an indefinite purpose would not justify the executors in passing over the amount of the legacy.

The general object of awarding the stipendia is sufficiently indicated If the way or course of the transmission of the benefits be sufficiently certain. It is proper to confer upon the individual making the award a reasonable discretion of selection; and the testator has thoughtfully indicated the general class of the proposed recipients of his bounty. Assuming the selection is to be. made by the director or college professors of the Latin School in Berlin, I see no difficulty in the acceptance by the mayor of Berlin of a designation by either; and, if not by the construction of the courts of the kingdom of Prussia upon the subject-matter involved, in case there is no union of designation in the execution of the trust, I cannot pronounce this bequest void for uncertainty because *384of a possible ■ disagreement between the director and the college of professors, even if the ordinary construction of the will suspends the payment of the stipendia until such agreement be made.

We have the benefit, in this case, of the evidence of applicable statutes of the kingdom of Prussia. By the evidence of the Prussian advocate and the commentary of the laws of Prussia used by the courts there, it appears that much of the law] applicable' to the construction of wills and their execution is the same in that kingdom as in this state. By section 139 it is declared that “he who has been charged with the fulfillment of one of several.conditions may choose the one he is willing to fulfill.”

“ Defective denominations or designations do not invalidate the disposition of the testator when his true intention is clear.” § 490. “ Whenever testamentary dispositions are of doubtful meaning they must.be interpreted so that they can best be upheld.in accordance with the law. The rules for the interpretation of declaratory acts ¡must be applied also to the interpretation of testamentary dispositions.” Title 4, § 65.

“ If, in a declaratory act, the intention is clearly shown, then all doubtful points must be interpreted conformably with- that intention.” § 70.

“All declaratory acts which are of doubtful meaning must be interpreted so that, they will not be left altogether ineffective.” § 74.

It is the general rule that the law will not permit the object of the testator to_ be defeated or a trust to be unexecuted on account of the refusal of a trustee to act. In Cáse the mayor of Berlin shall call upon the director and the college of professors to s„elect beneficiaries, and either one should refuse to act, there is no valid objection to his acceptance of selection by the other. It is plain that, if only one had been spoken of in the will, the refusal of that one to select would be no bar to the awarding of benefits by some one who might be designated by the court (in case, the chief magistrate would not, in that case, have powter of-selection) in a proceeding before the courts of Prussia at some future time, based upon the simple obstacle of a refusal to act by the person designated. And it is more than probable that compulsory action, operating upon the. designators selected, might be directed by the courts of Prussia.

• I am of the opinion that the provisions under consideration are valid and judgment should be so directed.

Ordered accordingly.