This action for the construction of the will of Samuel J. Tilden, deceased, was founded on the *Page 66 charge that it was ineffectual to dispose of the residuary estate or to provide for any lawful disposition of it, because the provisions of the thirty-fifth article by which that was sought to be accomplished were invalid in that they were as to both the object and subject of the trust he had in view indefinite and uncertain. If this proposition is supported the conclusion that such was the effect necessarily follows.
It is evident that the testator when he made his will intended not to die intestate as to any of his property. And that his purpose to make testamentary disposition of all of it not only appears by the dispositional provisions of his will, but also by those of the forty-third article by which he declared: "Since I have made a disposition of my property according to my best judgment, and since, as most of the devisees under it are females, it is impossible to forsee under what influences some one or more of them might possibly come, and since it is desirable to avert unseemly or speculative litigation, I hereby declare it to be my will that in case any person who, if I had died intestate, would be entitled to any share of my property or estate, shall under any pretense whatever institute, take or share in any proceeding to oppose the probate of this, my last will and testament, or to impeach or impair or to set aside or invalidate any of its provisions, any devise or legacy to or for the benefit of such person or persons under this will is hereby revoked, and such person shall be excluded from any participation in and shall not have any share or portion of my property or estate, real or personal; and the portion to which such person might be entitled under the provisions of this instrument shall be devoted to such charitable purposes as my said executors and trustees shall designate."
In proceeding to the consideration of the questions presented, it may be observed as a cardinal rule of construction that the intent of a testator should be sought for in the provisions of his will, and when so ascertained effectuated, if the language used permits, although the transposition, rejection or supply of words may be required to clearly express such intention. And when susceptible of it, the construction will *Page 67 be given which renders it operative rather than invalid. (Hoppock v. Tucker, 59 N.Y. 203; Phillips v. Davies, 92 id. 199; DuBois v. Ray, 35 id. 162.)
He had in view the creation and endowment of a Tilden Trust with the capacity mentioned. He, therefore, requested the executors and trustees to obtain as speedily as possible from the legislature an act of incorporation of an institution to be known as the Tilden Trust, and in case that should be accomplished within the time limited by the two lives mentioned, he authorized them to organize the institution and convey to or apply to its use the rest, residue and remainder of his estate or so much of it as they should deem expedient. Thus far he has in practical effect directed the application to be made for legislative action, and has made no provision for the disposition of the fund other than to the use of the corporation in the event of its creation. And because that was a contingency not within the control of the executors and trustees and for other reasons which might exist at the time of his death to render the endowment of the Tilden Trust, if created, inexpedient, the testator with a view to entire testacy added: "But in case such institution shall not be so incorporated * * * or if for any cause or reason my said executors and trustees shall deem it inexpedient to convey said rest, residue and remainder or any part thereof or to apply the same or any part thereof to the said institution I authorize" them to apply it "or such portion thereof as they may not deem it expedient to apply to its use, to such charitable, educational and scientific purposes as in the judgment of my said executors and trustees will render the said rest, residue and remainder of my property most widely and substantially beneficial to the interests of mankind." This provision, treated independently of any other, requires no consideration. The cy pres doctrine available to give effect to trusts for charitable uses without any defined beneficiary in England has no place in the law of this state. The attempt thus made by the testator to provide, in the event mentioned, for a trust dependent upon the selection by the executors and trustees of the charitable, educational and *Page 68 scientific purposes to which the fund should be applied was ineffectual and void for indefiniteness and uncertainty. (Prichard v. Thompson, 95 N.Y. 76; Holland v. Alcock, 108 id. 312; Read v. Williams, 125 id. 560.)
The proposition on the part of the appellants is that by the thirty-fifth article the testator made two distinct alternative provisions for the disposition of the residue of his estate; that the one relating to the incorporation and endowment of the Tilden Trust was primary, and the other following it was ulterior and intended (if that institution was incorporated) to be made effectual in the event only that the executors and trustees deemed it inexpedient to apply such residue, or only a portion of it, to the Tilden Trust. On the contrary, the counsel for the respondents contend that there are no such separate alternative provisions in the article, but that the testator there provided for the disposition by the trustees of his residuary estate to charities, etc., of which the Tilden Trust was one of the objects, and that the power given to the executors and trustees was that of selection merely. In some cases it has seemingly been held that when words of a will expressing a class of beneficiaries or objects of a trust may be taken distributively, and some of them are lawful objects of the trust and others not, it may be effectual as to the former, but the weight of authority is otherwise, and in such case the power of mere selection, in execution of the trust attempted to be so given, is wholly void. (Williams v. Kershaw, 5 Cl. Fin. 111; Vezey v. Jamson, 1 Sim. Stu. 69; Ellis v. Selby, 1 My. Craig, 286;Mitford v. Reynolds, 1 Phillips, 190; In re Jarman'sEstate, 8 L.R. [Ch. Div.] 584; 25 Moak, 496.)
If that view, as applied to the present case, is supported, the conclusion must follow that the testator failed by his will to make any valid provision for the disposition of his residuary estate. Then the trusts and the power which the testator attempted to create and vest in his executors and trustees would constitute a single scheme for the appropriation of the fund by them to such charitable, educational and scientific purposes *Page 69 as they should choose to select. But a different question is presented if the provision relating to the creation and endowment of the Tilden Trust may be legitimately treated independently of that following it, by which he sought to make provision for such general undefined purposes. Then the effect of the former would not necessarily be embarrassed by any relation to the latter. (Savage v. Burnham, 17 N.Y. 561; Schettler v. Smith, 41 id. 328; Manice v. Manice, 43 id. 303; Kennedy v. Hoy, 105 id. 134.)
The disposition of this question depends upon the construction to which that article of the will may be entitled, having in view the principles applicable to the interpretation of such instruments.
As has already been seen, the first duty imposed upon the executors was to seek by legislative act the incorporation of the Tilden Trust. And it may be assumed that this was not required or designed as a useless ceremony. When that should be effected, they were authorized to organize the corporation, designate its first trustees and convey to it or apply to its use the residue of his estate, or so much of it as they should deem expedient. We need go no farther to see the purpose for which the Tilden Trust was intended in its relation to the fund. How is the purpose so represented necessarily qualified by any of the provisions following it? There were certain contingencies in view which would have the effect to defeat the execution of the power to endow such an institution, and upon which the limitation of the fund, or some portion of it, to the general, charitable, educational and scientific purposes was provided for. The first was the failure to obtain the incorporation of the Tilden Trust. In that event the testamentary disposition of the residue of the estate was dependent upon such provision for application to charitable, etc., purposes. But if it should be incorporated, the contingency depended upon the determination of the executors and trustees, to the effect that it was expedient to apply a portion only, or inexpedient to apply any part of the fund to that institution. It quite plainly appears that the testator intended that if legislative *Page 70 action could be effectually had for that purpose, the Tilden Trust should be incorporated, and that being accomplished, its endowment should first be considered and determined; and that in the event only that it should by the trustees be deemed inexpedient to apply to it any of the residue of his estate, or expedient to apply to it less than the whole of such estate, would there be any occasion to seek other charitable, educational or scientific purposes to which to appropriate the fund or any portion of it.
It is urged that, because the gift of the testator is, by the terms of the will, made to the executors and trustees, their power is that of selection, and, consequently, there is no limitation created by the testator, and can be no primary or ulterior gift within the import of the language employed. But gifts may be made by a testator by means of powers vested in trustees to whom the estate is devised and bequeathed, and limitations contingent in character may be dependent upon the execution or non-execution by the trustees of powers conferred upon them. The question whether the provisions for the disposition of the residuary estate are or not alternative, primary and ulterior is one of construction. The fair interpretation of the language of the thirty-fifth article permits, and the evident intent of the testator as there manifested requires the conclusion that the two are alternative provisions, and that they are primary and ulterior. The former is definite in its object, the latter is otherwise.
It is true that by the terms of the thirty-ninth article the testator devised and bequeathed all of his residuary estate to the executors and trustees for the purposes mentioned in the will. This is designated at other places in his will as "general trust" to distinguish the residuary fund from the various special trusts created by the will. But this does not qualify or modify the construction to which the provisions of the thirty-fifth article would otherwise be entitled in the respect we are now considering them. The manner which the fund should be applied was dependent upon contingencies, some of which were within the powers vested in *Page 71 the executors and trustees. Yet the purpose of the devise and bequest must be considered in reference to the power conferred upon them by the provisions of that article, and in view of the manner which it might by virtue of those provisions be properly executed. The arbitrary exercise of power may characterize the effect which may be given to it, rather than its purpose. So in the present case the executors and trustees could have unfaithfully exercised their discretion upon the question of expediency. But while the test of expediency or inexpediency was left to their discretion, they could not consistently with the intent of the testator, as plainly manifested by his will, have applied any part of the fund to the purposes of the general charity mentioned in such ulterior provision until they had in good faith determined for "some cause or reason" that it was inexpedient to apply it or some and what portion of it to the Tilden Trust.
And although the exercise of discretion may not be subject to judicial control or review, it may be said that for the purpose of interpretation, it is the intent of the donor so made to appear that properly measures the discretionary power of those who are to execute it, and not the opportunity for its unfaithful execution found in its discretionary character. The power vested in the executors and trustees was not that of mere selection of a beneficiary or beneficiaries amongst all the objects which were embraced within the scope and meaning of the thirty-fifth article; they were not authorized to reach the consideration of the undefined objects of charity, etc., there referred to for the purpose of selection from them until they had disposed of the question whether the specific beneficiary, the Tilden Trust, should or not be endowed. That was the definite object to which their attention was first to be directed, and the question of the application to it of the fund to be determined. This the trustees were to do before any matter of selection from amongst indefinite charities was reached. The scope of the inquiry for that purpose was to be extended to other objects "if for any cause or reason" they *Page 72 should deem it inexpedient to apply any part of the residuary fund or expedient to apply less than the whole of it to the Tilden Trust and not otherwise. This seems to have been the purpose the testator had in view as appears by the provisions of that article. This is not repugnant to any other provision of the will. And his intent as manifested by the language used must be effectuated if it can be consistently with the rules of law. (Smith v. Bell, 6 Peters, 68; Wager v. Wager, 96 N.Y. 164; Roe v. Vingut, 117 id. 204.)
The provision for the Tilden Trust must, therefore, be treated as primary and distinct from that for general charities, etc. And the question whether or not the former provision was effectually made remains to be considered. It is requisite to the validity of any provision of a will that it is or may become capable of lawful execution; and that test is applicable as of the time of the death of testator. There may be future contingencies provided for upon which gifts are made to depend; and beneficiaries may not be definitely known or ascertained at the time of the testator's death. It is sufficient that they are so described as to be ascertained in the future when the right accrues to receive the gift. (Holmes v. Mead, 52 N.Y. 332; Shipman v.Rollins, 98 id. 311.) And a devise or bequest may be limited to a corporation not in existence at the time of the death of the testator, provided it is created within the time allowed for vesting of future estates. This question was considered inInglis v. Sailors' Snug Harbour (3 Peters, 99), Ould v.Washington Hospital (95 U.S. 303), and in this state it was so determined in Burrill v. Boardman (43 N.Y. 254), and reaffirmed in Shipman v. Rollins (98 N.Y. 328). In theBurrill case it was treated as in the nature of an executory devise dependent upon incorporation of the institution there contemplated, and it was held that the estate vested on the occurrence of that event. In that respect that case is distinguishable from the present one, as in the latter it was contemplated that the vesting should depend upon the conveyance to the Tilden Trust or application *Page 73 to its use by the executors and trustees to whom by the terms of the will the residuary estate was devised and bequeathed. This distinction arises out of the fact that upon the contingency which enabled the institution in the Burrill case to take the fund, the trust upon which the trustees held it terminated and there was no opportunity remaining for any limitation over, while it was otherwise in the case at bar. But treating the provisions of the thirty-fifth and thirty-ninth articles of the will as creating a trust power, it is not seen that the fact that the estate did not vest in the corporation on its creation necessarily has of itself any essential importance for the purpose of the question now under consideration provided the power was adequately given to convey or apply it to the use of the institution. While it could not in that case be deemed what was formerly known as an executory devise, it might in behalf of the Tilden Trust be treated as a conditional limitation of the estate, or a power dependent for its execution upon a condition. The testator evidently intended to vest in the executors and trustees all the control he could of the title to his residuary estate. But it cannot for the purposes of the question here be assumed that he intended their relation to it should be other than the legal effect of that which they took by the will. As to the realty no title passed to the trustees and no trust within the statute was created. When by the statute express trusts were reduced to those for the execution of which taking of the title was deemed essential (1 R.S. 728, § 55), it took from others none of the elements of trusts other than such as were dependent upon the title as formerly taken by trustees and none of the powers of execution not so dependent. And it was provided that when an express trust should thereafter be created for purposes other than those enumerated in section 55 no title should vest in the trustees, but if the trust directed or authorized the performance of any act which might lawfully be performed under a power it should be valid as a power in trust. (Id. 729, § 58.) If, therefore, the provisions of the thirty-fifth article of the will would, but for the statute have constituted a trust, and authorized the performance of any act *Page 74 which might lawfully be performed as such they, so far as related to the real property in the residuary estate of the testator, created a power in trust. And although the larger part of such estate was personalty and the trust as to that is not subject to the statute, the distinction in that respect for the purposes of the questions requiring consideration, need not be observed as the subject of powers is substantially applicable alike to both. (Cutting v. Cutting, 86 N.Y. 522; Hutton v. Benkard, 92 id. 295.)
It is urged that by the provisions in question the testator neither directed or authorized the performance of any act of disposition of the residuary estate which could lawfully be performed within the meaning of a statute defining a power in trust; and that there was not only no party to effectually demand their execution, but they had no enforceable character. It is true the creation of a trust depends upon the nature of the provisions by which its creation is sought. It is also the rule that a trust is imperative, and at common law the same rule is applicable to a power coupled with a trust although otherwise as to a naked power. (2 Story Eq. Jur. § 1061.) The primary one of those provisions certainly was not enforceable at the time of the death of the testator. There was then no Tilden Trust, and its then future existence was contingent. When it was created its ability to take depended upon its incorporation being in form and manner satisfactory to the executors and trustees, and that being so, it was made discretionary with them whether the institution should have the whole or any and what portion of the residuary fund. It would, therefore, seem to follow that upon the incorporation of the Tilden Trust it could not, without action of the trustees, have enforced conveyance or application to it or the fund or any portion of it. In that view and upon the construction given to the thirty-fifth article, the question is whether the trustees were enabled to vest the fund in the Tilden Trust, or by the exercise of the discretionary power given to them, could have afforded to that institution the right to demand and enforce in that respect the execution of the provision of the *Page 75 will in its behalf. As already seen, the testator did not intend to die intestate as to any portion of his property, and that he did intend to impose upon his executors and trustees the imperative trust power for the disposition of his residuary estate, appears by the provisions of the thirty-ninth article, by which he directed them "to apply the same and the proceeds thereof to the objects and purposes mentioned" in the will. This is borne out by the terms of the thirty-fifth article by imputing to him the understanding that the secondary provision of that article was valid, as upon the contingency there mentioned he provided for the disposition of it. If the primary provision was of itself valid in its object, purpose and effect, it was not invalidated by the fact that the trustees were in terms in the event stated in the article, empowered to apply the fund to the indefinite purposes mentioned in the ulterior provision for which testamentary disposition of property could not lawfully be made. (Attorney-General v. Lonsdale, 1 Sim. 105; Salusbury v.Denton, 3 Kay J. 529; Carter v. Green, id. 591.)
In other words, the limitation to the indefinite objects did not deny to the former provision for the Tilden Trust the effect to which it otherwise may have been entitled. (Savage v.Burnham, 17 N.Y. 561; Kennedy v. Hoy, 105 id. 134.)
In such case the subject would be within the control of the court, and on proper application it would restrain the use of power for such unlawful purpose. The contention of the respondents' counsel is that it was essential to the validity of the provision in behalf of the Tilden Trust that the residuary estate should have vested in it at the time it came into corporate existence, or that the institution should then have been entitled to demand and enforce by decree of the court the conveyance to it or the application to its use of the fund by the trustees. This proposition (upon the construction here given to the provisions in question) in effect seems to be that a trust or trust power could not exist with or survive the intervention of the discretionary power which the testator intended to *Page 76 give the trustees. But it may be observed that while a valid trust is imperative, attending it may be powers upon which limitations and executory bequests may be contingent, and the exercise of those powers may be discretionary. (Hawley v.James, 5 Paige, 318, 468; 16 Wend. 61, 176; Mason v. Jones, 4 Sandf. Ch. 623; 13 Barb. 461; Costabadie v. Costabadie, 6 Hare, 410; French v. Davidson, 3 Madd. 396; Walker v.Walker, 5 id. 424; Cole v. Wade, 16 Ves. 27.)
It is very likely that if the testator had apprehended the invalidity of the ulterior provision of the thirty-fifth article he would have provided a different limitation in the event there mentioned. But it cannot be assumed that the primary provision for the appointment and disposition of the residuary estate to the Tilden Trust would have been other than that which he made. The efficiency of the power given by this provision is not dependent upon the character of the ultimate limitation, nor is it less effectual than it would have been if that had been to a lawful object of testamentary gift. The difference is that in the one case it was within the power of the trustees to defeat the disposition by the will of the residuary estate, and in the other they could not. But in the latter case they, by the execution of the discretionary power, could have rendered the ultimate provision ineffectual, and for the purposes of the disposition of the fund inoperative. And, therefore, unless the contingency arose upon which the ultimate limitation of it was dependent, it would not be important for any practical purpose whether it was valid or not, and in that event only, would an enforceable character of the trust or trust power be essential to effectuate the intent of the testator. His purpose, it must be assumed in view of the power given, would be accomplished by the disposition to the incorporated institution designated by him. The creation of this power in nature and purpose was lawful, and through its execution the gift to the Tilden Trust could legitimately be effected, although in respect to the appointment to that institution it was made dependent upon the will of the executors and trustees. While *Page 77 it is essential to a trust as such that it be imperative and, therefore, enforceable by decree in equity when the time arrives for its execution, it is not so of a mere power or necessarily so of a trust power, although the latter is imperative unless its execution or non-execution is made expressly to depend upon the will of the grantee or donee. The testator intended to make the execution of the power of appointment to the Tilden Trust dependent upon the will of the trustees as expressly appears by the provision creating it. The contention, therefore, that this power of the primary provision was invalid because its execution was not judicially enforceable in equity on behalf of that institution does not in the view taken seem to be maintained. The imperative character intended by the testator to be made applicable and in a certain event to be applied to the disposition of the residuary estate, had relation to the ultimate limitation, which was dependent upon the contingency that the trustees should deem it inexpedient to appoint to the Tilden Trust any or only a portion of such fund. And as such limitation was invalid for indefiniteness and uncertainty in its object, the testator failed by it to effectually make any imperative provision for the disposition of the residuary estate by means of a trust, power in trust or trust power enforceable as such except so far as should be necessary to make and keep good the special trusts as directed.
And as the will furnished no support for an ultimate limitation of the fund in the event the trustees should have deemed the execution of the power of appointment to the Tilden Trust inexpedient, the real property within the residuary estate descended to the heirs of the testator subject to the execution of the power of appointment and disposition to that institution, and the right of his next of kin to the administration in their behalf of the personalty of such estate was subject to the execution of the same power.
Now, by reference again to the provisions of the thirty-fifth article, it may be seen, as plainly appears by their terms, that the testator intended that the trustees should exercise the power conferred upon them to consummate the disposition of *Page 78 the residuary estate for the declared purposes of the trust. If they were successful in their effort to obtain the corporate charter it was their duty to determine whether it was satisfactory, and in the event it was so, then, unless they deemed it inexpedient to apply any part of the fund to the Tilden Trust, the further duty was imposed upon them to determine whether it should take all of it and if not all, to appoint the amount of it so to be appropriated. It is apparent that the testator intended to make the exercise of such power a duty and essentially so to carry out his declared purpose. The discretion which he evidently intended to give the trustees related not to the execution of the power, but only to the manner of its execution. In that view (which seems well supported) may not the limitation to the Tilden Trust have been lawfully conditional not only on its incorporation, but as well upon the manner such preliminary power, discretionary only in that respect, should be executed.
In Ould v. Washington Hospital (95 U.S. 303), the estate for the purposes of the trust was devised to trustees with a view to the incorporation after the death of the testator of an institution to which they, in that event, were to convey the estate provided the corporation was approved by them, otherwise not. The hospital was incorporated and conveyance made to it by the trustees. The validity of the trust was contested, and the court held that the provision relating to a conveyance upon the creation of a corporation approved by the trustees was a conditional limitation of the estate vested in them. In that was involved the discretionary power of the trustees relating to the approval of the corporation. It is essential that the object and subject of a testamentary dispositional provision be definite and when so designated that they are or may become such and properly be ascertained, a limitation may by the testator be made to depend upon a future condition having regard to the statute of perpetuities, and such condition may consist of a power resting in the discretion of a trustee provided for and defined by the will; and when the condition is fulfilled the limitation may be enforced. *Page 79
The doctrine of the common law on the subject of powers of appointment and selection, except so far as it permitted the treatment of them as illusory, is consistent with the statute relating to powers, which provides that "a power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner, granting or reserving such power, might himself lawfully perform." (1 R.S. 732, § 74.) The powers now under consideration are a special power, and a special power in trust which, as defined by the statute, are those where the persons, or class of persons, to whom the disposition of lands is to be made under the power are designated (Id. § 78); and "(1) when the disposition which it authorizes is limited to be made to any person or class of persons other than the grantee of such power, entitled to the proceeds, or any portion of the proceeds or other benefit to result from the execution of the power; (2) when any person or class of persons other than the grantee is designated as entitled to any benefit from the disposition or charge authorized by the power." (Id. 734, § 95.)
The provisions of the thirty-fifth article of the will interms, in view of those of the thirty-ninth article, created a special power in trust; and because the testator intended that his residuary estate should be disposed of as directed by his will for the purposes of the trusts there mentioned, the provisions were apparently imperative; such, at all events, would have been their effect if the ulterior disposition to which the estate was conditionally limited had been valid.
And the statute provides that "every trust power, unless its execution or non-execution is made expressly to depend on the will of the grantee, is imperative and imposes a duty on the grantee, the performance of which may be compelled in equity, for the benefit of the parties interested." (Id. 734, § 96.) The ultimate limitation was by the terms of the will imperative in the event that the trustees failed for any cause to dispose of the fund under the primary one, which alone was made dependent upon their discretionary power. The Tilden Trust could take only through the power in the nature of that *Page 80 of appointment vested in the trustees; and the fact that the exercise of that power was discretionary and could not be enforced, produced no legal infirmity in the provision relating to that institution, its ability to take, and to the limitation to it dependent upon such appointment. (Chatteris v. Young, 6 Madd. 30; Lancashire v. Lancashire, 1 DeG. Sm. 288; 2 Phillips, 657; Cole v. Wade, 16 Ves. 27; Perry on Trusts, § 508; Hill on Trustees, 490-492.)
So far as the statute relates to the subject of the power of appointment, it provides that where under a power a disposition is directed to be made amongst several designated persons without specification of the share to be allotted to each, all of them shall be entitled in equal proportion. (1 R.S. 734, § 98.) But when the terms of the power import that the fund is to be distributed between them in such manner or proportions as the trustee may think proper, he may allot the whole to any one or more of such persons in exclusion of the other. (Id. § 99.) The trust power in such case does not cease to be imperative. (Id. § 97.) And if the trustee having such power shall die leaving it unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons so designated. (Id. § 100.) These provisions of the statute are in that respect substantially declaratory of the common law. (Swift v. Gregson, 1 T.R. 432.) It was there, as it is by our statute, a trust power. And it is not important for the purposes of the question whether the designated persons are vested with the fund subject to the execution of the power, or take by reason of the power given. In the one case there is a gift expressed and in the other implied, which will be executed by decree of the court in default of execution of the power by the donee of it. (1 Perry on Trusts, § 250; Walsh v. Wallinger, 2 Russ. Myl. 78; Lees v.Whiteley, L.R. [2 Eq.] 143.)
No such implication arises where there is a limitation over of the estate or fund to other objects in default of the execution of the power by the donee; and in that case the objects of the power take nothing as their beneficial interest, or the limitation to them is wholly dependent upon the execution of *Page 81 the power by him. (Davidson v. Proctor, 19 L.J. [N.S. Ch.] 395; 14 Jur. 31; Pearce v. Vincent, 2 Myl. K. 800; 2 Bing. [N.C.] 328; 2 Keen, 230; Goldring v. Inwood, 3 Giffard, 139.) And although the power of appointment and selection rests in the discretion of the trustee, it is valid and may be effectually executed by him. (2 Perry on Trusts, § 508; Brown v. Higgs, 8 Ves. 561.)
In the present case the provision relating to the Tilden Trust conferred upon the trustees a power of appointment and disposition to a definite object with a limitation over on default of such appointment; and so far as by the terms of such provision the execution of the power was left to the judgment or discretion of the trustees, it was expressly made to depend on their will within the meaning of the statute. And as before remarked, the apparent purpose and effect of this provision was not qualified or defeated by the fact that the ultimate limitation was to objects so indefinite as to render it ineffectual. In practical effect it was the same as if the fund had been limited over to the heirs and next of kin of the testator as they necessarily would take in default of the execution of the power.
In Power v. Cassidy (79 N.Y. 602) the fund was bequeathed to the executors with power of appointment and selection among a designated class of beneficiaries. While the manner of executing it was discretionary the trust or trust power was imperative, and on default of the executors to execute it the power would survive them, and the designated objects would then and ultimately be entitled to share equally in the fund and it would be enforced accordingly. But as to those beneficiaries it would not in that sense and for that purpose have been imperative if there had been a limitation over to other objects on such default, although as to the latter it would have retained its imperative character. Yet the power thus given of appointment would have been valid and may have been effectually executed.
It is essential to the constitution of a valid trust or special power in trust by a testator that the objects be so designated *Page 82 or described that they may be definitely known or ascertained from the provisions of his will. And it was the failure of the testators to so designate or define the objects of the attempted trusts which came to the attention of the court and were for that reason held invalid in Prichard v. Thompson (95 N.Y. 76);Holland v. Alcock (108 id. 312); Read v. Williams, (125 id. 560). In those cases the trust power sought to be given was that of appointment and selection without limitation over. The infirmity which rendered invalid the provisions of the wills in question in those cases was that no beneficiary was designated or pointed out by or ascertainable from the will having any interest in the execution of the power or who could assert in court any claim founded upon the trust. Those provisions of the wills were, therefore, held invalid for indefiniteness of the classes of objects of the trusts sought to be created. And in this respect they were distinguished from Power v. Cassidy. The present case is distinguishable from them in like manner, and further that the power given by the primary provision in question was not that of appointment and selection among members of a class, but was of appointment and disposition to a definitely designated beneficiary. It is also essential that the subject of the power be designated and certain or that the means be provided by the will to render it properly ascertainable or certain. The provision of the power in that respect is for the application to the Tilden Trust of the residue of the estate or so much of it as the trustees should deem expedient. The cases before cited recognizing as effectual discretionary power given to trustees to regulate, control or determine the amount which certain beneficiaries should receive of specific funds, to be exercised in reference to circumstances which the donors of the power had in view, have some bearing upon this question. Those are theHawley, Mason, Costabadie, French, Walker and Cole cases (supra).
The residuary estate was a definite fund, and unless the trustees determined that it was inexpedient to endow the Tilden Trust, they were at liberty to apply to it the entire *Page 83 fund, but whether expedient to so apply all or less than the whole of it was a matter of judgment of the trustees to be founded upon the amount of the residue in reference to the sum suitably available for the purpose of the institution, and that was the amount the testator authorized the trustees to appoint to the institution. This was the means provided by the will to make certain that which until such action by the trustees was uncertain.
In Peck v. Halsey (2 P. Wms. 387) it was held that a bequest by the testatrix of some of her best linen to A. was void for uncertainty, but that a bequest of such of her best linen as the executor should think fit or as the legatee should choose, would have been good.
In Kennedy v. Kennedy (10 Hare, 438) the testator gave all his household furniture, etc., to trustees and directed that all his household property be sold by them except such articles as his wife should desire to retain and which he authorized her to appropriate to her own use. Held, that the power of selection was effectually given to the wife. And Arthur v. Mackinnon (L.R. [11 Ch. Div.] 385) is to the same effect. It has been seen by reference to the statute that the power of appropriation of a fund among the members of a class may be created and the donee of the power be authorized in his discretion to appropriate it in such proportions as he may please. This was so at common law. When the fund is definitely designated it would seem that power may be conferred upon the donee of the power to determine what portion of it may be appointed to a definite beneficiary designated by the donor.
Our attention has been called to no authority to the contrary of that proposition in its application to the present case. ThePrichard, Holland and Read cases do not have any necessary application to the question. The reasoning there was had in reference to their contexts to which it was very apt. And the relief of the provision relating to the Tilden Trust from the alternative ulterior provision which embraces only indefinite objects, denies to those cases any practical application to the questions presented in the case at bar. *Page 84
While the statute abolished powers as they before then existed (1 R.S. 732, § 73) it, as said by Judge ANDREWS in Read v.Williams, "does not define all the purposes for which a power over property may be created." This appears by section 74, before referred to and by the revisers' notes (3 R.S. [2d ed.] 590), as to powers other than those which are designated as beneficial. They, except as there enumerated, were abrogated by the statute. (1 R.S. 733, § 92.) Treating that in question as a trust power, those considerations of the statute may not be essentially important here. It must be assumed that the testator, through powers conferred on his trustees by the thirty-fifth article, intended to dispose of his entire residuary estate and, therefore, its ultimate dispositional provision (in view of article thirty-nine) was intended, as by its terms it purported to be imperative, but that character was not unconditionally applicable to the power of appointment and disposition in the primary provision relating to the Tilden Trust. It had relation to the limitation over to the objects of the ulterior provision, and in consequence of the invalidity of the latter his intention, if the trustees had failed to appoint the Tilden Trust as the beneficiary, would have been disappointed. The purpose of the appointment and disposition to that institution is apparently legal and, at common law, may have lawfully been accomplished through the execution of a power in the manner the testator sought by his will to do it. It also fairly comes within the purposes for which a power as defined by the statute may be employed. (Id. § 74.) At common law a trust may have been attended with a discretionary power, upon the non-execution of which the enforceable character of its ultimate limitation might be dependent. This relation of powers, to which trusts may have been subjected, was preserved and provided for by the statute. And while a trust power is in its nature imperative, that character of it in the sense of being enforceable may, when its execution or non-execution is made expressly to depend upon the will of the donee, be suspended by and during the existence of such discretionary power or determined by its execution. In the *Page 85 present case there was involved in the provision for the Tilden Trust a power in its terms discretionary, and so far as it was so, its execution or non-execution was made expressly to depend on the will of the trustees, and the purpose being lawful it was valid unless in contravention of the statute against perpetuities. It is urged that the limitation provided for by the thirty-fifth article of the will would permit the unlawful suspension of the absolute power of alienation of the realty and of the absolute ownership of the personal property constituting the residuary estate of the testator. (1 R.S. 723, § 15; Id. 773, § 1.) This would be so and its effect the invalidity of the limitation if such suspension would not, by the terms of the will, necessarily terminate within a period not longer than the continuance of the life of the survivor of the two persons there designated. (Schettler v. Smith, 41 N.Y. 328.) But the thirty-fifth article must be construed in connection with the thirty-ninth article, and by the latter the testator directed that the executors and trustees "possess, hold, manage and take care" of the residuary estate during a period not exceeding such two lives. This, in view of the further direction that they apply such estate to the objects and purposes mentioned in the will, which was imperative, is not consistent with the suspension of the absolute power of alienation of the real estate and of the absolute ownership of the personal property beyond that period. It, therefore, seems that the future estates sought to be created by the testator were so limited that by the terms of those provisions they would necessarily and beyond any contingency have terminated within the period prescribed for that purpose by the statute, and in that respect they may be upheld.
These views lead to the conclusion that the provisions of the will relating to the Tilden Trust and the powers for their execution given to the executors and trustees were valid, and as the consequence the main purpose of the action must fail.
Since the commencement of the action, and upon the application of the executors and trustees, a Tilden Trust has been incorporated in form and manner satisfactory to them and *Page 86 organized. They determined to endow it with the entire residuary estate, and made to the institution conveyance and transfer accordingly, subject to provisions contingently made in the will by the testator in behalf of special trusts by him created and as there directed.
It is insisted that the act of incorporation is not such as was intended by the testator, in that it was not given the corporate capacity designed by him. By the will he requested them to obtain "an act of incorporation of an institution to be known as the Tilden Trust, with capacity to establish and maintain a free library and reading-room in the city of New York and to promote such scientific and educational objects as my said executors and trustees may more particularly designate. Such corporation shall have not less than five trustees, with power to fill vacancies in their number, and in case said institution be incorporated * * * I hereby authorize my said executors and trustees to organize the said corporation, designate the first trustees thereof," etc. In the preamble of the act of incorporation it is stated that the "executors and trustees deem it inexpedient to designate any purposes of the corporation * * * other than the establishment and maintenance of a free library and reading-room in the city of New York in accordance with the purpose and intention of the said testator," and such was the capacity given by the act to the corporation. The first section provided that the three persons (naming them), who were the executors and trustees, and such other persons as they should associate with themselves and their successors, were created a body corporate under the name and title of the Tilden Trust; and by the second section it was provided that those three persons should be permanent trustees of such corporation, and that they designate and appoint other trustees so that the number should not be less than five.
The testator seems to have had in view only one definite purpose of the corporation. That he expressed. Beyond the establishment and maintenance of a free library and reading-room he contemplated that the promotion of some further *Page 87 scientific and educational objects might suitably and properly be added and sustained. He, therefore, provided that the corporate capacity be adapted to such objects in that respect as the executors and trustees should designate. This, however, would be dependent upon circumstances to be determined by them and he left it to their discretion. He evidently did not intend that the corporation, for the purpose by him definitely appointed, should be frustrated by the failure of the executors and trustees to exercise their discretion in such manner as to give occasion to amplify the corporate capacity of the institution. The question whether, after the creation of the corporation for the free library and reading-room, the executors and trustees may by the designation of such further objects authorize the enlargement of its capacity accordingly, does not now arise and is not considered.
We think the incorporation was not invalidated by the manner the capacity of the institution was defined in the act.
When the plaintiff commenced this action it may have had support in the invalidity of the ulterior provision of the thirty-fifth article of the will to prevent the application of any portion of the estate to the indefinite objects and purposes there mentioned. But as the executors and trustees afterwards made a determination which would prevent the application of any part of the fund to those objects and purposes no relief in that respect is now essential, and the only purpose for which further consideration need be given to that subject has relation to the question of costs which we think should, on behalf of the several parties, be chargeable to the estate of the testator.
The judgments of the court below should, therefore, be reversed and the complaint dismissed with costs in that and this court to all the parties, appellants and respondents, payable out of the estate.
All concur with BROWN, J., except POTTER and VANN, JJ., who concur with BRADLEY, J.
Judgment affirmed. *Page 88