In my opinion the testator did not intend by the eighth paragraph of his will to create a trust in favor of the incorporated academy named the Round Lake Summer *Page 83 Institute, but to make an absolute gift for its own benefit to the Round Lake Association, formerly known as the Round Lake Camp Meeting Association of the Methodist Episcopal Church. I concede that a direction for the investment of a fund and application of its income would be sufficient to create a trust where it appeared from the terms of the will taken as a whole, and the situation of the parties, that such was the intent of the testator, even though he did not in express terms provide that the gift should be in trust. I think that in the present case the terms of the will and the situation and character of the alleged trustee and beneficiary plainly negative any such intent.
1. The camp meeting association would be one of the last institutions that a business man, which the plaintiff was, would be likely to select as a trustee for the investment and management of property for the benefit of a third party. Had the testator intended to create a trust for the academy he would have selected for its trustee either an individual, or a trust company, or some similar corporation.
2. If the testator intended that the incorporated academy should be the beneficiary of a trust he would have said "to the support and maintenance of the academy at said Round Lake," etc., instead of using the word school. He was perfectly aware at the time of making the will that the legal name of such an incorporation was "academy."
3. The Round Lake Association is strictly a denominational institution. The testator was an active Methodist and had been president of the association for some years. The incorporated academy has no denominational character and cannot, under the law, assume one. So long as it maintains its present connection with the Round Lake Association it may subserve all the purposes that the testator wished to accomplish of instruction to the members of the association and visitors to its grounds; but this connection is casual, not necessary or inherent, and may at any time in the future be wholly severed. In such case, under the interpretation given to his will by Judge GRAY, the testator's intent will be frustrated. He *Page 84 intended to give his property for denominational purposes, and it was the denominational character of the beneficiary that appealed to his charitable instincts. His gift to the Round Lake Association was doubtless for the purpose expressed in his will of maintaining a school by the association, as had been done for some time before the incorporation of the academy, but still for the purpose of maintaining a school which should be a part of and entirely dependent upon the association, and not for a separate corporation that in the future might become wholly disassociated from the Round Lake Association. In other words, he intended to give his property to the Round Lake Association, to maintain its own school, not as trustee for the benefit of another, though doubtless it may use the other for the purpose so long as the parties contract therefor. Such a gift, though the corporation may be instructed to maintain the principal intact and use the income only for a specific purpose, does not create a trust. (Wetmore v. Parker, 52 N.Y. 450; Bird v. Merklee,144 N.Y. 544.)
The judgment appealed from should be reversed and the eighth clause construed as constituting an absolute gift to the Round Lake Association.
BARTLETT, MARTIN and WERNER, JJ., concur with CULLEN, J.; PARKER, Ch. J., and VANN, J., concur with GRAY, J.
Judgment reversed, with costs to appellant payable out of estate, and the matter remitted to the Surrogate's Court for the entry of a decree holding the eighth paragraph of the will valid and construing it in accordance with the opinion of CULLEN, J. *Page 85