The question presented in this cáse depends upon the construction to be given to the last will and testament of Joseph Hughes, of the city of Hew York. The testator, after ■ devising certain lands in the State of Pennsylvania, provides: “ I give and devise to my Executors hereinafter named or such one of them, as shall qualify, all my real estate situate, lying and being in the State of- Hew York, in trust, to sell and dispose of the same at public or private sale and to divide the net proceeds of such sale as follows: Three equal fourth parts thereof to the Trustees of St. Francis Hospital in the City of Hew York for the benefit, and use of the Blessed Virgin Mary Purgatorial Fund of said Hospital,” with a bequest of the remaining fourth part to his «ister, a nephew and niece. It appeared that there was no St.-Francis’-Hospital in the city of Hew'York j .but that there was a corporation incorporated by a special act of the Legislature passed in 1866 under the name of “ The Sisters of the Poor of St. Francis.” The abject of the corporation was for the gratuitous -care, of the sick, aged, infirm and poor, and. for that *529purpose the corporation maintained a hospital in the city of Hew York known as St. Francis’ 'Hospital, which was a charitable institution for the relief of the suffering poor.
Upon the trial it was admitted that at the time of the death of the testator there was not, is not now and never was any body corporate, person or persons or legal entity known as St. Francis’. Hospital, but that St. Francis’ Hospital is a public institution under the charge of and maintained by -the defendant, the Sisters of the Poor of St. Francis, a corporation organized and existing under the provisions of chapter 201 of the Laws of 1866, and that said corporation maintains a hospital in the city of Hew York known as St. Francis’ Hospital, and is the only one of that name. .
Upon that concession it is quite clear that the testator intended this'bequest to the corporation known as the Sisters of the Poor of St. Francis, as .they are the ones who maintained this hospital, and they fairly come within the description of the. will as the trustees of the hospital; but the court found as a fact that the object of the testator’s bounty in the 3d paragraph of his will was not within the corporate purposes and powers, or any of them, of the defendant, the Sisters of the Poor of St. Francis, and there never was and is not now a “Blessed Virgin Hary Purgatorial Fund” maintained by the defendant, the Sisters of the Poor of St. Francis, or by said hospital; that the only possible object of a purgatorial fund is the saying of masses for the spiritual welfare of the souls of the dead in purgatory, and, as a conclusion of law, that the devise or bequest in the 3d paragraph of the will of three equal fourths of the net proceeds of the sale of all the testator’s real estate, situate, lying and being in the State of Hew York, being the lands and premises described in the fourteenth finding of fact, to the trustees of St. Francis’ Hospital in the city of Hew York for the benefit and use of the Blessed Virgin Mary Purgatorial Fund of said hospital is invalid and void, and upon the judgment entered upon this decision the Sisters of the Poor of St. Francis’ Hospital appeal.
There was under the provisions of this will ah equitable conversion of the real property of the testator. The bequest to this hospital was three-fourths of the proceeds ■ upon the sale of this property which the executors were directed to ■ make, and in deter*530mining the question- of the, validity’ of this disposition of- the testator’s property it should be treated as a bequest of personalty. The testator, therefore, has bequeathed a. portion of his estate to trustees of a hospital maintained in the city of New York as a charitable institution for the benefit of the poor, coupled with the provision that this bequest is for the benefit and use., of the Blessed Virgin Mary-Purgatorial Fund, .no such fund being in existence. It is conceded that the testator intended to benefit this corporation, who organized and maintained the hospital, and his direction that the bequest should- go’ to the trustees of the hospital would be complied with by paying it to the corporation organized for the gratuitous cure of the sick, aged, infirm and poor, which had, to carry out that object of its incorporation* established a hospital known as the Hospital of St. Francis. -The learned trial judge, however, was of the opinion that because-there was coupled with this gift, which was absolute in form and valid upon its face, the provision that it Was for the benefit and use of the Blessed Virgin Mary Purgatorial Fund of said hospital, the gift was invalidated. We must not forget. that in considering a will We are to give force- to the intention of the testator, and if that, intention can be ascertained from the instrument itself, effect, should be given to it, unless it violates some ’ legal rule. (Crozier v. Bray, 120 N. Y. 366.) It is -quite clear that it was the primary indention of -this testator, to give to the trustees or persons maintaining this hospital a portion of his estate* and the question that is presented is whether this -intention is to be defeated because he has added to the gift a proviso that the provision was for the benefit of a,.particular fund'which'he apparently supposed was maintained by those who maintained the hospital. It appeared by the testimony of the secretary of the corporation that it conducted a hospital known as St. Francis’ Hospital; that there was a chapel -connected with said hospital in which there were devotions several times a day; that there was a morning mass; that the sisters' say the office at various times of the day, and -there áre always public devotions in winch prayers are said for the poor. souls in purgatory. There was thus maintained a chapel in which-there ..Were daily religious services, conducted in accordance with the beliefs of the church with which these sisters Were affiliated, for the:- souls of the dead, maintained by the sisters as a part of the hospital that *531they organized and maintained to carry out the purposes for which they were incorporated, the gratuitous care of-the sick, aged, infirm and poor.
Considering the belief of the church with which these sisters were affiliated, I do not think we can say that the organization and maintenance of a "chapel for the benefit of the souls. of those who come under their care wa§ not within the object for which the corporation was incorporated. - T.lie gratuitous care of the sick, aged, infirm and poor might well involve religious services for their benefit, either before or after death; and where a body of religious persons, with a belief in the - efficacy of religious ceremonies and observances for the amelioration of the condition of -the poor and helpless, maintains a chapel in which is conducted religious services for the benefit of those in their charge, such services may well come within the definition of the gratuitous care for the sick, aged, infirm and poor. That this corporation was incorporated for purely charitable purposes is conceded, and that the lives of those connected with it .are devoted to th '■ purpose "was apparently known to the testator, and he wished to aid, so far as in his power, the members of this corporation in the work to which they had devoted their lives; He evid ntlv believed in the efficacy of those religious observances as a benefit to those for whom they were celebrated, and it was his intention that this, portion of his property should be .devoted to that purpose. To sustain this as a bequest to this corporation will accomplish this object, and I think it would be extremely unfortunate if the court should be compelled to frustrate this intention because of the form used in the bequest.
It is a well-settled principle that where there is a bequest or devise to an individual sufficient to vest the bequest in the legatee a subsequent provision will not cut down that bequest or devise, unless such an intention is clearly expressed. (Clarke v. Leupp, 88 N. Y. 228.) In the will before the court in that case there was a bequest to the testator’s wife of all his property, real and personal, "and his wife was appointed sole executrix “ to take charge of my property after my death, and retain or dispose of the same for the benefit of herself and children above named; ” and it was held that the entire estate vested in his wife upon the testator’s death, the court saying: “ It is well settled by a long succession of well-con*532sidered cases that when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be.restricted or cnt down to any less estate by subsequent or ambiguous words, inferential in their intent.” In Clay v. Wood (153 N. Y. 134) it is said: “ Where there is an absolute gift of real or personal property, in order to qualify it, or to cut it down, the latter part of the will should show an equally clear intention to do so, by the use of words definite in their meaning, and by express sions which must be regarded as imperative. * *■ * Whether the precatory words in a will shall be accorded such force as to deprive the donee of the absolute right of disposal, and, thereby, qualify the beneficial interest in the gift, must be determined in, connection with what may be gathered from the rest of the will as an intention which would be reconcilable with the idea of a trust' imposed upon the legal estate. Where to impose such a trust would be to nullify previous expressions in the will and to create a repugnancy between its different parts, then the rules of construction forbid- the attempt.” In Chamberlain v. Chamberlain (43 N. Y. 424) it was held that a bequest, although in terms to the trustee of a corporation, is in legal effect a gift to the corporation vesting the legacy in the corporate body. In that case the bequest was to the trustees of Chamberlain Institute to be by such trustees permanently invested in bond and mortgage, the principal to be kept permanently .invested and the interest and income thereof to be used in the payment of teachers and the purchase of books for a library institution; but the court held that this bequest was for the benefit of this institution, and was in legal effect a gift to the co'rporation vesting the legacy in the corporate body; and this same rule was applied by the ' General Term in the .fifth department. (Matter of Strickland's Estate, 17 N. Y. Supp. 304.) It has been definitely settled in this State that there is nothing illegal in a testator making provision for masses to be said for the repose of the soul after death (Gilman v. McArdle, 99 N. Y. 451); and a bequest being to a corporation competent to take, there being a defined beneficiary, there is nothing in this will,-as I view it, which creates a trust or which limits the power of the beneficiary in the use of the money after if is received. In Holland v. Alcock (108 N. Y. 312), where it was- held that the *533absence of a defined beneficiary was a fatal objection to an attempt to create a trust for the purposes of prayer offered in a Homan Catholic church for the repose of the testator’s soul and the souls of his family, and the souls of all others who might be in purgatory, it seems to have been recognized that such a bequest would be valid if to an incorporated church so as to entitle it to claim the fund.
My view, therefore, is that there was here a bequest of personal property to a defined beneficiary to be used for the purposes for which it was incorporated, and that as there was nothing in the will • sufficient to cut down or limit the bequest, it is valid; and that the judgment appealed from should therefore be reversed, and a decree entered upholding the bequest and directing that it be paid to the defendant, the Sisters of the Poor of St. Francis, with costs to the plaintiff and to the appellant to be paid out of the estate.
O’Brien, P. J., concurred.
Judgment affirmed, with costs to the respondents payable out of the estate.