#### BUTLER v. TRUSTEES OF PAROCHIAL FUND OF PROTESTANT EPISCOPAL CHURCH IN DIOCESE OF WESTERN NEW YORK.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Trusts—Validity—Uncertain Beneficiaries.

Testatrix gave to her niece $15,000 in trust to be invested by her, and the proceeds to be used for the support of a clergyman who should hold services in a specified chapel “as often as may be convenient, and for such other purposes in keeping up the church services as she may think advisable,” and at her death such sum to “be paid to the trustees of the parochial fund of the Protestant Episcopal Church in the diocese of Western New York, to be held by them, and the income thereof used for paying a clergyman who shall hold divine services in the” same chapel “as often as convenient, and keep up and in good repair the said” chapel and “cemetery at Cayuta Lake.” Neither the chapel nor cemetery wa.s controlled or owned by any organized or incorporated body, but were the private property of such niece. *Held,*that the attempt to create a trust failed for want of definite beneficiaries who could claim its enforcement so far as such will attempted to create it during the lifetime of such niece.

*5632. Same.

Laws 18G3, c. 59 (incorporating tile trustees of the parochial fund of a certain church), § 4, authorizes them to receive under a will such fund as shall be “devoted in part to the assistance and support of officiating ministers,” etc., to be called the “Fund of Clerical Support”; and in part to the purchase of glebes and erection of parsonages in the parishes, to be called “Fund for Parsonage Aid.” Section 6 requires an application for distribution of such fund to be in writing “signed either by the minister or by order of the vestry of the parish,” stating the facts showing the necessities of the case, etc. Section 8, as amended by Laws 1885, c. 144, gives the trustees power to receive by bequest and hold “for clerical support or parsonage aid in particular parishes, * * * for

the benefit and interest of any parish in said diocese.” *Held*that, where a certain chapel and cemetery in such diocese were neither owned nor controlled by any organized body or corporation, but were owned by a private person, such corporation could not, on the death of such owner, receive a certain sum bequeathed to her to be invested, and on her death to be paid to such trustees, “to be held by them, and the income thereof used for paying a clergyman who shall hold divine services in” such chapel, “and to keep up and in good repair” such chapel and cemetery.

S. Retroactive Statute—Act Relating to Bequests in Trust.

Laws 1893, c. 701, providing that a bequest “shall not be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same,” is not retroactive, and does not apply to the will of a person who died before it was enacted.

Controversy between Henrietta L. Butler, residuary legatee under the last will and testament oí Jane G. Campbell, deceased, as plaintiff, and the trustees of the parochial fund of the Protestant Episcopal Church of the diocese of Western New York as defendant, submitted without action on an agreed statement of facts, pursuant to Code Civ. Proc. § 1279 et seq., to determine whether plaintiff or defendant is entitled to a certain sum bequeathed by testatrix for religious and charitable uses. Judgment for plaintiff.

•Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.

M. J. Sunderlin, for plaintiff.

A. P. Rose, for defendant.

HARDIN, P. J.

Jane G. Campbell died on the 19th day of January, 1891, being a resident of the town of Catherine, Schuyler county. She left her last will and testament, which bears date the 27tli day of June, 1889. The will was admitted to probate on the 12th of March, 1891, by the surrogate of Schuyler county, and letters testamentary were issued to George H. Butler and to the plaintiff, who were the persons named in the will as executors, and who have qualified as such. The surrogate gave a construction to a portion of the will, and his decision was brought before us, and was reversed by us “upon the ground that the question as to the validity of the trust was not properly before the surrogate.” See 88 Hun, 374, 34 N. Y. Supp. 831. Subsequent to our decision, and in September, 1895, the submission was agreed to by the parties. According to the language of the submission we are asked to decide, viz.:

> “Whether or not the following clause, contained in the last will and testament of Jane G. Campbell, deceased, constitutes a legal and valid trust, viz.: Ttem. I give and bequeath to my niece, Henrietta L. Butler, the sum of lif*564teen thousand dollars, in trust, nevertheless, said sum to be invested by her as she may think best, and the proceeds thereof to be used for the support of a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Cayuta Lake, as often as may be convenient, and for such other purposes in keeping up the church services as she may think advisable; and at the death of the said Henrietta L. Butler the said sum of fifteen thousand dollars shall be paid to the trustees of the parochial fund of the Protestant Episcopal Church in the diocese of Western New York, to be held by them, and the income thereof used for paying a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Cayuta Lake as often as convenient, and to keep up and in good repair the said Lawrence Chapel, and cemetery at Cayuta Lake.’ ”

It is claimed in behalf of the plaintiff that the attempt to create-a trust as to the $15,000 is invalid, and that the provisions of the will in that regard are void, and that, as she is the sole residuary legatee named in the will, she is entitled to receive the $15,000 as-her own property. On the contrary, the defendant claims that a legal and valid trust is created under the will, and that the plaintiff can only hold the same subject to the provisions contained in the language used for the purpose of attempting to create a trust, and that upon the decease of the plaintiff the $15,000 must pass to the defendant for the uses and purposes mentioned in the will. It appears that on the 1st day of June, 1888, the testatrix was the owner in fee of a farm consisting of about 194 acres, situated in the town of Catherine, and that by her deed she conveyed the same to the plaintiff, and that the plaintiff became the owner of the same, and that upon the lands was a residence, and that the lands were used and occupied as a farm. In the submission.presented to us we find the following language: “Lawrence Memorial Chapel and Cemetery at Cayuta Lake,” mentioned in the said will, are situated on the farm of 194 acres so conveyed by the testatrix to the plaintiff. It appears this chapel was erected a number of years prior to the-death of the testatrix by contributions of the Lawrence family and its descendants “as a mortuary chapel for holding the funeral services of the family in. It is a stone structure, 25 by 55 feet, and one story high; and when erected it was the intention of some of those furnishing the funds for its construction to hold nothing but funeral services of the family therein, but since its erection divine-services have been held therein at times at the instigation of said Lawrence family, and paid for exclusively from their own private-funds.” It is further stated that the Lawrence family were Episcopalians, and that funeral services of other denominations have been held in the chapel, but only by permission of the owners of the chapel, as an accommodation to the neighbors. The case further-states, viz.:

> “There is not now, nor has there ever been, any church organization, orreiigious association, society, or corporation of any kind, connected in any way or manner with said chapel or cemetery, and there is not, nor has there-ever been, any incorporation of the cemetery under the statute or in any other way. Neither has there ever been any board of trustees, managers, or vestrymen, or any other religious or corporate officers of any kind, connected with either the chapel or cemetery, or having any interest therein,, or control of the same, or any part thereof, but the same has always beem the private property of the owner of the farm, and has been, in the posses*565sion of some of the Lawrence family or said, descendants down to the present time; the said Henrietta L. Butler, the present owner, being a niece of the said Jane G. Campbell, deceased, who was one of the Lawrence family, and both of them contributed to the erection of said chapel. Said chapel and cemetery are situated on said farm, several miles away from any village or hamlet, and divine services have only been held in said chapel when some one or more of said Lawrence family have procured and paid for the same from their own private funds.”

The plaintiff resides in the city of New York. Schuyler county is a part of the diocese of Western New York.

According to the language used in the will, it was manifestly the intention of the testatrix that the $15,000 should be received by the plaintiff in trust, and held by her during her lifetime for the purpose of gathering “the proceeds thereof,” and she was directed to use the same for “the support of a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Cayuta Lake, and for such other purposes in keeping up the church services as she, the trustee, may think advisable.” We think this clause does not name a definite, ascertainable beneficiary, and that it falls within the condemnation of the authorities relating to a trust without certain beneficiaries who can claim its enforcement. Levy v. Levy, 33 N. Y. 97; Iseman v. Myres, 26 Hun, 654; dissenting opinion of Macomber, J., in Re Ingersoll, 59 Hun, 572, 14 N. Y. Supp. 22, which dissenting opinion was approved by the court of appeals, 131 N. Y. 573, 30 N. E. 47; Miller v. McKenzie, 95 N. Y. 576; Bead v. Williams, 125 N. Y. 560, 26 N. E. 730; Tilden v. Green, 130 N. Y. 29, 28 N. E. 880; People v. Powers, 147 N. Y. 115, 41 N. E. 432. The validity or invalidity of the trust does not depend upon the volition of the trustee. Holland v. Alcock, 108 N. Y. 312, 16 N. E. 305. We see nothing in the language of the will which defines or names a beneficiary who could call upon the named trustee to execute the trust. Surely, it cannot be claimed that the Lawrence Memorial Chapel or the cemetery at Cayuta Lake are beneficiaries within the meaning of the rule of law which requires some definite and certain beneficiary to be named before validity can be assigned to a provision of a will creating a trust. ■ Nor is any definite clergyman named or mentioned who could apply to the court and compel the plaintiff during her life to execute the trust in his behalf. The property is so situated that, if any itinerant clergyman should attempt to hold services in the chapel, he could not do so without the permission of the plaintiff; otherwise he would be a trespasser. Nor do we find anything in the language of the will which would authorize a party to compel her to open the chapel for the purpose ■of allowing such a clergyman to hold religious services therein. If there was an organized parish, with wardens and vestrymen, and having corporate powers, known by the name of “Lawrence Memorial Chapel,” another question would be presented. Under the circumstances disclosed in the case submitted to us we are of the opinion that the trust must fail so far as the will attempts to create it during the lifetime of Henrietta L. Butler.

It is contended in behalf of the defendant that it was entitled to receive the $15,000 at the close of her life, under the provision *566in the will, “to be held by them, and the income therefrom used for paying a clergyman, who shall hold divine services in the Lawrence Memorial Chapel at Cayuta Lake as often as convenient, and to keep up and in good repair the said Lawrence Chapel and cemetery at Cayuta Lake.” In determining this last contention it is important to refer to the act incorporating the defendant, known as “Chapter 59 of the Laws of 1863, and the amendment of the eighth section thereof found in chapter 144 of the Laws of 1885.” The fourth section of the act authorizes the defendant to receive under the will such fund as shall be “devoted in part to the assistance and support of officiating ministers of the said church, engaged in parochial duty within the said diocese” (the section provides that this portion of the fund shall be called the “Fund for Clerical Support”), “and in part to the purchase of glebes and the erection of parsonages within the limits of organized parishes in the said diocese, in-communion with the said church, and which shall be called ‘Fund for Parsonage Aid.’ ” In the sixth section of the act provision is made for the distribution of such funds, and in prescribing the-manner of distribution it is required that application shall be in writing, “signed either by the minister or by order of the vestry of the parish, and shall state the facts essential to a full understanding of the necessities of the case, and particularly the amounts already contributed or secured towards the support of the minister, or for the erection of a parsonage, as the case may. be.” This language seems to apply to an organized body having legal existence. In the case before ns we And no such organization, no such incorporation, and, therefore, no application could be made, signed by the minister, or by order of the vestry of the parish. In the eighth section power is given to receive by bequest, and hold “for clerical support or parsonage aid in particular parishes * * * for the beneiit and interest of any parish in said diocese.” If we turn to the language of the will, we And that it does not specify any particular parish, or any organized body, that is to receive the income-that may arise upon the $15,000; and we are of the opinion that the purposes mentioned in the will are not the purposes which are mentioned in the eighth section of the act under which the defendant is incorporated. The language of the will does not carry the idea that the testatrix intended to apply her bounty “to the whole- or any one or more of the various purposes for which” the defendant was authorized to hold property. Bird v. Merklee, 144 N. Y. 550, 39 N. E. 645.

Subsequent to the execution of the will the legislature passed chapter 701 of the Laws of 1893, providing that any bequest “shall not be deemed invalid by reason of the indeAniteness or uncertainty of the persons designated as the beneAciaries thereunder in the instrument creating the same.” It is contended that that act enables the defendant to receive the moneys mentioned in the will' under consideration. As already stated, the will bears date the 27th of June, 1889, and the testatrix died on the 19th day of January, 1891. We are not inclined to hold that the statute is retroactive in its provisions, and are of the opinion that the statute has no applica*567tion to the case in hand. In alluding to that statute in Dammert v. Osborn, 140 N. Y. 43, 35 N. E. 407, it was assumed that the statute could not apply to a case where the property had vested before its enactment. In the will before us we find a provision as follows:

> “All the rest and residue of my property, both real and personal, of every description, I give, devise, and bequeath to my niece, Henrietta L. Butler, and constitute her my residuary legatee; and, should any legacy or devise herein lapse, or be held by any competent court to be invalid, then the part of my estate included therein shall go to my said niece, Henrietta L. Butler, the residuary legatee and devisee of all my property.”

We are of the opinion that under this provision of the will Henrietta L. Butler, at the death of the testatrix, became entitled to receive the $15,000, inasmuch as we are of the opinion that the trust attempted to be created in the clause to which we have given attention was invalid. We therefore reach the conclusion in this case that judgment should be ordered in favor of the plaintiff, declaring that the plaintiff is entitled to the $15,000, and that the clause contained in the will does not constitute a legal and valid trust. We think judgment should be ordered in favor of the plaintiff. Under the circumstances of this case we think it is proper to award costs to both parties out of the fund. Dammert v. Osborn. 140 N. Y. 48, 35 N. E. 407.

Judgment ordered in favor of the plaintiff, with costs of both parties payable out of the fund. All concur.