It is not to be gainsaid that prior to the act of 1893 to regulate gifts for charitable purposes (Laws of 1893, chap. 701), in order to constitute a valid trust provision for a charity, there must not only be a trustee but a beneficiary capable of being designated and who could enforce the trust provision. (Owens v. Missionary Society of M. E. Church, 14 N. Y. 380 ; Williams v. Williams, 8 id. 525; Bascom v. Albertson, 34 id. 584; Tilden v. Green, 130 id. 29; People v. Powers, 147 id. 104.) In the present case it is doubtful whether a trustee is sufficiently identified, but assuming that is not so, then, in order to carry out the terms of the trust created by the will under consideration, such trustee is required to designate the beneficiary, and until so designated, the theory of the law was that no beneficiary exists. The very elements of a valid trust, therefore, fail in this case unless the act of 1893 controls. I am of opinion that it does not aid the matter, for its provisions only relate to the execution of trusts within the State of New York and thé statute can have no application whatever to the administration of trusts outside of the State. The statute does not confer power upon the Supreme Court to name a beneficiary or enforce a trust over which it can have no control. The gift once removed from the State of New York, it would be impossible to have it administered by the courts of this State. The 2d section of the act of 1893 provides that the Supreme Court shall have control over gifts, grants, bequests and devises in all cases provided for by section 1; that the Attorney-General shall represent the beneficiaries in all such cases, and that it shall be his duty to enforce such trusts by proper proceedings in the court. The case of Allen v. Stevens (161 N. Y. 123) was one in which the fund was in this State for administration and was placed by the statute under the protection of the Supreme Court, which could enforce it *436on the application of the Attorney-General, and which could, notwithstanding an apparent indefiniteness and vagueness as to beneficiaries, select such beneficiaries under what is considered to be the re-establishment of the ey pres power by the act of 1893. As I consider that act as only operating in the manner indicated, the law remains as to trusts created within this State and not to be executed here, as it was before the act of 1893 came into effect. In all the cases in which money has been transmitted from this State to foreign jurisdictions, there was a beneficiary named, and the subject of the right of that beneficiary to receive under the law of the jurisdiction to which the fund was remitted was held to be a matter which must not be considered by our courts. The case of Cross v. United States Trust Co. (131 N. Y. 330), when its facts are considered, does not control here. The same may be said of Dammert v. Osborn (140 N. Y. 30), and I think a careful reading of those cases will sustain this statement. In them the fund was here for administration.
The judgment should be affirmed, with costs.
Van Brunt, P. J., and Patterson, J., concurred; O’Brien and Laughlin, JJ., dissented.