#### Isabella M. Manley, Plaintiff, *v.*Harrison Grey Fiske and Henry Tyrrell, Individually and as Executors of the Last Will and Testament of Henry Howard Paul, Executed October 30, 1905, Etc., Albert A. Gilmer and Francis Bourne Newton, Individually and as Executors Named in the Last Will and Testament of Henry Howard Paul, Deceased, Executed February 18, 1901, and in the Codicil Thereto Executed October 20, 1905, Maria Louisa Overman, Louis B. Gore and Attorney-General of the State of New York, Defendants.

(Supreme Court, New York Special Term,

February, 1910.)

Charities — Requisites and validity in general: What constitutes charitable use: Certificate as to beneficiary — Effect of chapter 701, Laws of 1893.

Trusts — Nature and elements in general — What law governs.

The validity of a testamentary trust is to be determined by the law of the place where the fund is situated and is to be administered rather than by the law of the testator’s domicile.

A provision in a will that the testator desires his executors to divide the surplus of his estate *“*among such American charities they may think well of,” with a suggestion as to certain charities to which the testator “ would like ” the sums to be given, constitutes a gift for charitable uses within the meaning of chapter 701 of the Laws of 1893, as amended by chapter 291 of the Laws of 1901, and creates a valid trust.

Action for the construction of a will.

J. Hampden Dougherty, for plaintiff.

Charles E. Lydeclcer, for defendants Fiske and Tyrrell.

Shearman & Sterling, for Albert A. Gilmer and Francis Bourne Mewton.

Harry David Kerr, for Maria Louisa Overman and Louisa B. Gore.

E. B. O’Malley, Attorney-General, State of Mew York.

Blanchard, J.

This is an action to construe a will, the disputed clause of which is as follows: “After the above *389legacies are paid without unnecessary delay the sum remaining I desire my executors to divide the surplus among such American charities they may think well of, and I would like these sums to be given to any society that assists poor needlewomen (seamstresses), whose toil is so poorly requited; if no such organization exists, the money to be divided for the benefit of incapacitated sailors and their families.” The testator died in England, and some question is raised as to whether he was then domiciled in England or in Eew York. Even if the testator were domiciled in England, it seems to be conceded that the law of Eew York, where the fund is situated and is to be administered, must control the validity of the trust. Mayor of Lyons v. Advocate-General of Bengal, L. R. (1 App. Cas.) 91, 110. Chapter 701 of the Laws of 1893, as amended by chapter 291 of the Laws of 1901, provides that *“*Eo gift, grant, bequest or devise to religious, educational, charitable or benevolent uses, which shall in other respects be valid under the laws of this state, shall or be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, bequest or devise there is a •trustee named to execute the same, the legal title to the land or property given, granted, devised or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee, then the title to such lands or property shall vest in the supreme court.” In directing his executors to “ divide the surplus among such American charities they may think well of” the testator clearly made a gift for charitable uses within the meaning of the statute above quoted. The fact that the title may not clearly have been given to the executors cannot invalidate the trust, because by the express language of the statute title must vest in the Supreme Court if no person be named. Kelly v. Hoey, 35 App. Div. 273. Similarly the fact that the beneficiaries are not definitely named cannot invalidate the trust, because the express language of the statute cures that deficiency and gives to the Supreme Court control in said cases. See Kelly v. Hoey, *supra;*Bowman v. Domestic & Foreign Missionary *390Soc’y, 182 N. Y. 494. None of the authorities relied upon by the contesting defendants is. inconsistent with these views. Fralick v. Lyford, 107 App. Div. 543, merely holds that a voluntary, unincorporated religious association named as beneficiary by the testator cannot take a gift. That question is not raised in the present case. Mount v. Tuttle, 183 N. Y. 358, and Catt v. Catt, 118 App. Div. 742, are distinguishable on the similar ground that the beneficiaries named by the testator were not corporations capable of taking such gifts. Matter of Shattuck, 193 N. Y. 446, merely holds that if the purposes of an attempted trust are so indefinite and uncertain that the court cannot administer them the trust is not saved by the statute above quoted. That question is not raised in the present case, because the purposes were definitely described by the testator. The discussion of the statute by the court in the case last cited strongly confirms the views hereinbefore expressed, and the provision of the will above quoted must b.e held to create a valid trust.

Ordered accordingly.