I doubt whether the provisions of the will of Joseph Wild, -under review, can be construed as a gift to the Long Island Baptist Association for its own use. But I think, with some hesitation, that ■their validity may be upheld under chapter 701 of the Laws of 1893, entitled “An act to regulate gifts for charitable purposes.” From the overthrow of Williams v. Williams (8 N. Y. 525) until the enactment of that statute, the only way in this State (with a -few exceptions) to make a gift for charitable purposes has been by .-a.bequest or devise to a corporation, because the beneficiaries of the ■charity were deemed too indefinite for their rights to be capable of ■enforcement. By the act of 1893 it is provided that a gift to religious, educational, charitable or benevolent uses, if, in other ■respects, valid under the laws óí the State, shall hot be deemed ■invalid by reason of the indefiniteness or uncertainty of' the bene- " -ficiaries; ■ and that if no person be named as trustee, the title to the lands or property, shall vest in the Supreme Court. I think there •can be no doubt of the intention of the testator or the proper construction of- his will. He intended to give $10,000 to an orphan- ■ .age founded by the Baptist Association, if one was so founded at . the time of his death, or if not then founded (which was the case), then for the foundation of such an. orphanage. Had the testator merely given the bequest for the foundation of an orphanage for -the Baptist Association, it would have been clearly valid under the statute of 1893, and the property would have vested in a trustee, or -in the Supreme'Court, for the purposes of the trust. This is practically what the testator has done; and the fact that'he has made -the gift only-in the alternative that such an orphanage should not *237have been founded at the time of his demise does not affect its validity. It is urged that the gift is to a specific legatee, to wit, a corporation thereafter to be incorporated ; and that as the will pro* vides for no period of time in which the incorporation may be effected, the bequest contravenes the provision of law that personal property must vest absolutely within, two lives in being. I think this is too narrow a construction of the bequest. The essence of the gift was not to a corporation, but to a charitable use, to wit,, an orphanage for the Long Island Baptist Association. The language is, under whatever name organized or incorporated. Had the asso* ciation, at the time of the testator’s decease, itself, directly, and not through the medium of another corporation, maintained an orphan* age, I think there could have been no doubt that such orphanage could be fairly said to have been organized within the meaning of the will and the association have taken the legacy. If it be assumed that it was the intention of the testator that a particular corporation should be incorporated to receive the legacy, the appellants concede that had he directed the incorporation to have been effected within two lives in being the legacy would have been good (Burrill v. Boardman, 43 N. Y. 254); and I concede that prior to the statute of 1893 the bequest would have been void for failure to provide such a limitation. I may also concede (though as' to this there may be-doubt, Williams v. Williams, supra, and Bird v. Merklee, 144 N. Y. 544) that the statute against perpetuities applies to gifts-to- charitable uses, and that the act of 1893 has not taken. such gifts without that statute. But the reasoning which, has led the courts to hold that there must be an express direction in a will for the incorporation of the legatee within two.lives in being, seems to me not to obtain to its■ full extent since the. act of 1893. As before that act a gift for charitable uses could only be made to a corporation, until the corporation was incorporated and -came into being the property vested in the next of kin,- and the possibility of-the subsequent creation of a corporation during a term not measured by lives, of course prevented the absolute ownership of the property during such period. But this is not now the ease, A devise for charitable uses, even though there is no corporation, vests the title at the time of the testator’s death either in a trustee named in the will, or in the Supreme Court. There is, therefore,no *238suspension of the absolute ownership of theproperty,. and no .restraint ■on the power of alienation for any period, except, of course, só far, .as in every trust of this character, the trust property is solely applicable to- the purposes of the trust. We have no decisions on the question as to how, under the act of 1893, the courts would administer general trusts for charities. I should he inclined to the' opinion that when no trustee is named the court might direct tile organization of a corporation for thb administration of the fund. If this is' so, certainly the testator might do the same. There is no provision of the bequest that in terms offends against the statute as to perpetuities. It provides neither for the maintenance of the principal intact, nor for the accumulation of income. The whole principal sum could properly be ■ at once expended for the construction or purchase of an orphanage building. Immediately'on the testator’s death and the election of the association to accept the - legacy, there was imposed on the association a trust to apply it to the foundation of an orphanage, and if the testator intended that the orphanage should be held by a separate corporation, then to incorporate such a corporation under the laws of the State. Before the act of 1893-such a trust could not have been enforced, because the corporation not being in existence there was no person in being with-- standing to enforce such a "trust, .but now, in cáse the trustee fails to fulfill the trust, the Attorney-General is authorized to. bring an action to' enforce it. The present case is to be distinguished from Booth v. Baptist Church (126 N. Y. 215). That case arose before the statute of' 1893, but I assume that a great part Of the reasoning of that Opinion would still be in point since the act referred - to. In the Booth case the testator gave a large portion of his estate to: certain trustees, who were directed to apply to the Legislature for the incorporation of the John Guy Vassar Orphan Asylum. ' As-to this gift it was' said by Judge Finch : “ The devisee and legatee was not in existence. The-will contemplated its futures,: creation, but by -‘ an indepéndent authority, which neither the testator nor his executors could control, and' which might for fifty years or forever refuse an act of incorporation. During all that period the power of' alienation-and'the absolute ownership would be suspended, for no person could convey a ' perfect and.- absolute title.” In other words, the Legislature might refuse the special act of incorporation, and the *239specific character and name of the legatee, the latter of which was to commemorate the testator’s bounty, were essential, ii not controlling, elements of the testator’s intent; and it may well be that if the legatee was to bear a different name or be of a different character, the gift would not have been made. But in the present case, if the testator intended a corporation at all, he contemplated one which required no application to the Legislature or action on its part, but whose incorporation was authorized by general statutes existing at the time of testator’s decease, and substantially as much a matter of right as the purchase of the land on which the orphanage' might be situated. To restate the thought which is in my mind: Before the act of 1893 a trust for charity was void, and the existence of a proper legatee could alone save it. Since that act a trust for charity is good, and a direction that the subject of the gift shall be held by a corporation solely relates to the administration of the charity and should not be allowed to defeat the trust otherwise valid; and a trust to create a corporation for the administration of the charity, where the corporation is one that citizens may incorporate as a matter of right under existing law, does-not suspend the power of alienation. I am, therefore, of opinion that if the testator’s scheme contemplated that a new corporation should be effected to take the gift (which I deny, believing that his sole will was that it should be applied to the particular charitable use, and that the personality of the legatee was immaterial), that fact would not render the bequest invalid.
The decree should be modified so as to adjudge that the legacy be paid to the Baptist Association upon trust, to found an orphanage.
Judgment affirmed, with costs payable out of the fund.