#### The American Church Missionary Society, Plaintiff, *v.*The Griswold College et al., Defendants.

(Supreme Court, New York Special Term,

March, 1899.)

Trusts — Determination by the failure of the beneficiary to perform its purposes.

In 1865 a donor created in the plaintiff á trust to establish in a college a perpetual theological professorship. It appeared that" for at least ten years last past the college had maintained only a preparatory school for girls; that no theological department had existed during the same period; that it was not contemplated ever to revive of maintain one in the future, and that the college buildings were in use for other purposes.

Held, that the conduct of the college amounted to a voluntary surrender of all benefits under the trust and that the trustee should be directed to transfer to the donor the *corpus*of the.trust and any accumulations.

Action for the construction of a trust- fund.

Swayne & Swayne, for plaintiff.

Livingston & Livingston, for defendant.

Kellogg, J.

In 1865 the defendant Louisa Dean' delivered to the plaintiff in trust $10,000 upon certain conditions, and for a specific use. The trustee accepted the trust and the defendant Griswold College accepted and agreed to the conditions. The *43plaintiff now brings this action, alleging in substance that defendant Griswold College, sole beneficiary — at the. time the trust was created a seminary of learning in Davenport, Iowa — has neglected and refused to perform the conditions of the trust, and asks the direction of this court as to the trust fund and the accumulated interest. Defendant Louisa Dean admits the allegations of plaintiff as to neglect and refusal on the part of the beneficiary, Griswold College, and asks that the trust be declared ' at an end, and the trust fund be restored to her as donor. Griswold College denies the neglect and refusal to perform the conditions, and asks that the trust be continued as originally created. The executors of Bishop Perry ask that the income from January, 1876, to date of his decease, in 1898, be paid to them as holding the professorship for that term. The evidence is so far undisputed that the facts are not difficult to find. It is plain that when this trust was created the donor of the trust fund had a definite purpose in mind, to-wit: the creation of a theological professorship, to be known as *“*The Anthon Professorship of Systematic Divinity,” in Griswold College, and to have this continuous and perpetual as a live branch in a theological school. The acceptance of Griswold College placed that institution in the attitude of agreeing to create and maintain such a school and such a professorship in good faith, and effectuate the purpose of the donor of the trust. The trustee, plaintiff herein, had the duty and power of naming the incumbent of the chair in this professorship. The trustee has continuously performed on its part and provided a professor, but the defendant Griswold ' College for the past ten years and over has failed and refused to provide the theological school or to maintain any seminary of learning in which there was a theological department. For many years past no school or seminary of learning has .been maintained other than a preparatory school for girls and the college buildings are used for other purposes; in short, the college or such is moribund and there exists no expectation or intention upon the part of its officers to maintain in the future any other than a preparatory school for girls. There does not exist now, nor has there existed for years in this institution, any school of theology or any theological department nor any branch known as “ The Anthon Professorship of Systematic Divinity,” nor xis it the expectation or intention of. the officers of the institution to ever revive or maintain either in the future. _ This is the plain conclusion from the evidence. The evidence is *44given for the most part by officers of this institution and 'with -.the evident bearing towards a retention of the income from this trust fund, and we' may reasonably look from them to get all the facts which tell most favorably to that end. If there existed any ■ remote expectation or intention pointing to the revival of these departments it would undoubtedly have been mentioned. I think this''neglect and abandonment on the part of defendant Griswold College, so long continued, must be interpreted as á refusal to longer comply with the conditions of the trust,, and that this must operate' as a voluntary surrender of all benefits under it. It does not appear that the named professor, William Stevens Perry, has for the pasl ten' years been such except in name,;, he has never served as a professor, and though/he has been the uncomplaining recipient continuously of the income of this, fund up- to January 1, 1896, through the grace of the trustee, no legal or equitable grounds are here presented for any further claim. From, the conclusion to which all the facts point, and following the principle declared in Associate Alumni v. General Seminary, 26 Ap.p. Div. 152, there seems to be no escape. The trustee should be directed to turn over to Louisa Dean, the donor of the fund, both the corpus of the ftind a.nd the accumulations, and judgment is so directed. Prepare decision and judgment accordingly, and settle on noticq.

Ordered' accordingly.