The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-09-12

ANXIOUS 0o6r II the toatator that should % d0v0t1d
to charity The WIN also directs the executors 70 pur-
chase farm for the nephews and nsioes Of Mrs. Bonsor
The execute $, after having the wiz admitted to pro
The p!sssn plaintiff was sp,si.sss
with the " Il annexed In October, 1851, hs com.
%s1 nee th ;sSn e hsvs Judicial
the esstor possibly entitled to the real estate Or It's
having interest adverse to those claims and that
they mig nsain the validity Of the devise Of the farm
to their The plaintiff does not put himself in the
lection the direction Court but on the contrary
tnss into court int % t nS sS o.
said will and codci and the provisions thereof incident
relating to the application and disposition Of the resi-
mnistered, may be settled and determined, and this
plaintiff fully advised in relation thereto No question
can therefore arise as was suggested how the Court
refuse to act he does not refuse and has submitted to
the judgment Of the Court "and willing to submit to
such construction and direction of the Court shall be
Just and proper In the premises in respect thereto
The testator directs his executors to purchase farm In
trust for the benefit Of his newhews and nieces children
Of Mary Bonsor not exceeding 000 a. asylum and
that the newhews, &C., come and occupy Il; but the
executors to have full power it for fifteen
years. for the benefit Of all his nephews and nece,
they should think fit and after fifteen years the execu
might sell the and apporton the avals among
the nephews nieces or their heirs and survivors,
they should think just He also directs that after the
expiration OF ten years Cor sooner If his executors i
there will be sufficient unds} there be established "a
.
for INDECENT persons both sick and ae to be attended
by physician elected in the establishment at thcrown
IN
and funds enough to carry the building and yearly
penses." by his Last codicil he disposes of $4,000
in certain es and gives other legacies and directs
the provision in his will codci in regard to tho dis
pensary TO be satisfied and then gives and bequeaths all
executors in trust that they shall pay and apply the
in such and in such times and time in their
discretion they should think fit and proper to the rcasu
hauiu fha ms nj
mary affairs Of any societies for the Import
of ndigent respectable persons especially females and
orphans and for the of said society societies. here
by intending give to the executors full discretionary
powers to the disposition OF the same but that the
same shall be applied to objects Of charity Most OF the
vered by the decision in Williams Williams in very
learned and extremely lucid opinion delivered by Judge
DEMO in December, lB53,in the Court of Appeals. He
says: When the gift is capable Of being executed by
judicial Decree know of why the Court should
refuse to executeit There is here good trustee 70
take the funds in the first instance and succession OF
trustees may be provided by the Court by appoint
men,s often circumstances may require. If there
duty Of the trustees to select such to enjoy the
benefits of the legacy When the gilt to trustees with
upon itself the execution of the trust the executor is
not to take for lis benefits the consequence is that
if particular object, as the erection of school,
or even general object, providing It can be seen
what the purpose ISL is pointed out, the Court will
execute the trust but il there absence Of dis
erection individuals and the object to which the fund
is to be applied is general indefinite nature, the law
casts the Application OF the fraud upon the King as pares
pan Thus he holds that If the object y general and
lar there be discretion 10 be exercised by indi
vidual the charity is Of such that It's execution
may be enforced by court Of equity by virtue Of its
general powers and that it does not depend on the
traordinary powers vested In the Chancellor in England
when there general indefinite charitable purpose not
fixing upon any particular object and the gift is not to
trustees, and there is rot discretion in individuals
Here tine testator had fixed par cular object 1t in
its broadcast "charity' in the in which
had used it in his will and it generally used this
country, viz, the support Of the indgent The subjects
his bounty also were sufficiently definite being one or
societies established for the support of such
his executors might select otherwise such persons
they might select. The Pronunciation Of the executors
cannot make that invalid which would have been valid if
they had consented to act. The resduary estate
and repeat the remark Of Judge DEMO- "a of
trustees may be provided by the Court by appoint
nents az often as circumstances may require The
moval from their Office, would each be circumstance
requiring appointment and making it the duty Of
the Court 20 Gil the vacancy. The estator did not
pose personal discretion In the individuals whom he
named az executors, and intend that they should
make the selection Of the subjects ofhis bounty This he
shows by giving the power not to them BY to his
executors by virtue of their office but by making it
continuing trust net to be exercised at once but at such
time and times in their discretion they should think
ft and by making beques directly to them in trust,
and giving them estate and not power. Even
before the Revised statutes, when power given
to commissioners executors and administrators the ad
ninstrator with the will annexed might execute it. II
was because such was the instruction OF the tesor and
the intention is here equally plain Now by the Revised
statutes (,o page r. 22) in all where letters OF
administration with the will annexed granted the will
Of the deceased shall be observed and performed and the
administrators with such will shall have the rights and
powers md be subject TO the duties If they had
been named executors in the will The plaintiff here has
to The personal estate the power and rights Of
selection of the societies the executors had and is
much bound to exercise that power he would be If he
had been named in the will the sole executor. The
judgment will declare the bequest Cor the purpose Of pur
chasing the farm void as illegally suspending the power
Of alienation and the requests for the purpose of pub
lie dspen ary valid and that the is to be establish
ed in undertook, on plan similar to the in the
city Of New York, first or commonly known the New
York pspensay and reference may be had to ascertain
the particulars of that plan it will also declare the be-
quest of the residue for charitable purposes also valid
with directions to the administrator to carry out the two
last mentioned bequests and TO make such selection of
societies subjects Of charity may be proper with
liberty to him and to any Of the other parties to the
a:on to apply TO the court for fun ther instructions II
will also direct the accounts Of the plaintiff to he settled
and adjusted and that each party be paid out Of the
estate his costs to be adjusted and reasonable
fec.