On the 24th day of February, 190'!, Louise H. Leclere died, leaving a last will and testament, which was duly admitted to probate by the Surrogate’s Court of the county of New York on the 10th day of June, 1907, and letters testamentary were duly issued thereunder.
The 11th clause or paragraph of her will has been adjudged by the decree from which the appeal is taken to be invalid, and the legacy thereby given has been directed to be distributed as part of the residuary estate. The provisions of the will which have been declared void are as follows: “I give and bequeath to the Faculté de Théologie Protestante de Montauban, in France, One Hundred thousand francs of the currency of France, to be held in trust, to invest and keep the same invested and drawing interest and to apply the interest and income therefrom yearly and every year to as many free scholarships under the control of said Faculté as said yearly interest will pay for or allow. Such scholarships to be granted, first, to the sons of poor clergymen in France intending to become ministers of the gospel, as may desire the same, and, secondly, in the absence of such to any poor young men wish*127ing to become ministers of the gospel or missionaries. It is my desire that this fund or endowment may bear my mother’s name and be known and designated as the ‘ Fonds Guinaud,’ and to her memory I institute and dedicate the same.”
The testatrix was a native of Paris, France, but at the time of making the will, on the 9th day of July, 1886, and of her death, she was domiciled in New York. When she made the will the Faculté de Théologie Protestante de Montauban was “ a public establishment and had a legal entity,” could take property “by gift or legacy” and hold and administer the same and could sue and be sued. It occupied under the laws of France a position similar to that occupied by corporations in this country. It and its predecessor had existed since 1698, and it was reconstituted by a decree of the French government on the 8th day of December, 1809. It was supported in part by appropriations of public funds. It was a religious institution engaged in teaching theology and training “'students for the profession of Protestant Ministers of the Gospel.” It was suppressed as á public institution or establishment by a statute known as the “ Separation Act,” which took effect on the 11th day of December, 1905. That statute authorized the “ attribution ” of the property of the institutions, suppressed as public institutions, to “cultual associations,” to be organized under a governmental decree, which was made on the 16th day of March, 1906. Although suppressed as a public institution or establishment it appears by expert testimony with respect to the French law that it still exists, de facto, and is carrying on the same work by the same professors, with the exception of three who have retired, and at the same place and in substantially the same manner, and that it is enabled to do so by funds received from the Union Nationale des Eglises Reformées Evangéliques de France, a union of cultual associations created pursuant to the provisions of the “ Separation Act” on the 2d day of February, 1906, for the administration of Protestant religion in France, to which the property of the Faculté de Théologie Protestante de Montauban, and that of all other Protestant religious organizations, orders a,nd institutions in France, was 1 c attributed ” or transferred and turned over as authorized by the “Separation Act.” Such transfer from this *128■legatee included two special “foundations” or endowments. There is also evidence to the effect that the legatee continues to receive pay students and to maintain free scholarships as well. The scheme of the “ Separation Act ” was to have the property of the suppressed organizations, institutions and orders transferred to a corporate entity to be created by a decree of the president of the republic of France, to be administered by it for the purposes for which the property had been received and was held, but, in effect, under government supervision and with restrictions, in the interests of the public policy of France as shown by the statute and decrees thereunder, by which the amount of property to be received and held for such purposes was limited. The evidence shows that the legatee was without authority to receive this legacy at the time of the death of the testatrix.
This was a bequest to a foreign corporate entity on condition, or in a limited sense, in trust, to hold the corpus in perpetuity and to apply the income to a particular purpose, which was one of the principal functions performed by the legatee; but there was no trust in the strict sense in which that term is used with respect to the title to or ownership of property, and, therefore, this legacy did not contravene our statutes with respect to.perpetuiti.es and accumulations of income. (Williams v. Williams, 8 N. Y. 525; Wetmore v. Parker, 52 id. 450, 459; Fosdick v. Town of Hempstead, 125 id. 581, 595; Matter of Griffin, 167 id. 71; First Presbyterian Church v. McKallor, 35 App. Div. 98.) The validity of a bequest for a charitable use to a foreign corporation to be administered abroad depends upon the foreign law, but is to be determined by the courts of the domicile of the testator. (Robb v. Washington & Jefferson College, 103 App. Div. 327; affd. on this point, 185 N. Y. 485; St John v. Andrews Institute, 117 App. Div. 698, 714; Matter of Huss, 126 N. Y. 537; Matter of Sturgis, 164 id. 485.) There was here no gift in trust save in the sense that every gift to a charitable use in perpetuity involves a trust relationship, and is subject to supervision by the law and courts of the jurisdiction in which it is to be administered, and the gift was direct without the intervention of a trustee. (Catt v. Catt, 118 App. Div. 742, 750; Matter of Griffin, supra; Bird v. *129Merklee, 144 N. Y. 544; Wetmore v. Parker, supra; St. John v. Andrews Institute, supra.) I am of opinion that chapter 701 of the Laws of 1893, as amended by chapter 291 of the Laws of 1901, has no application to the case at bar. Those statutory provisions literally apply only to bequests and devises of property for charitable uses otherwise valid under the laws of New York, but theretofore void or incapable of enforcement for want of a trustee, or uncertainty, or indefiniteness, with respect to the beneficiaries, and, in so far as they relate to trusts, their operation does not extend to a bequest for a charitable use to be administered in a foreign jurisdiction. In Allen v. Stevens (161 N. Y. 122) the statute received a very liberal construction, and it was held that it restored the doctrine of charitable uses and trusts in effect as declared in Williams v. Williams (supra), by which a trust does not fail for want of a competent trustee, or for indefiniteness or uncertainty with respect to the beneficiaries, and that it was no longer essential to the validity of a trust for a charitable use in perpetuity that it be to a corporation existing or to be created within two lives in being; but that decision has no bearing on the question presented for decision. I do not agree with the view that this bequest is subject to the construction that it involves an express trust for a definite beneficiary which is capable of administration by a trustee other than the legatee, the income to be paid to the legatee, which has been suppressed as a public establishment or institution.
I am also of opinion that if this bequest were construed as' an attempt to make a bequest on an express trust it could not be sustained. In that view the legatee would be both trustee and beneficiary, and under the well-settled rule the trust would merge. (Robb v. Washington & Jefferson College, supra.) In a sense of course the students selected for the free scholarships would be beneficiaries, but the testatrix did not contemplate that they should receive the income, although she attempted to provide that they should be benefited thereby. The vulnerable point in such a theory of construction is that the trust, whether it be regarded strictly as an express trust, or in the broad sense that every bequest to a charitable use in *130perpetuity involves a trust relationship, is that the trust or trust relationship does not end with the investment of the funds and collections of income, for it is not contemplated that the income shall be paid over to certain students selected by the legatee or otherwise to be used by them in educating themselves for the profession of Protestant ministers, but it continues with respect to the application of the income to accomplish the purposes intended by the testatrix, and this was to be done, not by distributing the income to individuals, but by using it in defraying the expenses of educating them for the Protestant ministry. The principal and vital part, therefore, of the trust, considered in any aspect, required the administration of the income in France, and by the legatee, for the particular purpose expressed in the will. In so far as the trust is to be administered in France it is quite clear that chapter 701 of the Laws of 1893, as amended, affords no authority for the courts of this State to act as trustee, and they have no inherent or other authority to administer a trust in a foreign State or country. (Catt v. Catt, supra.)
It is manifest that there could be no supervision by our courts, and it does not appear that there could or would be any by the courts of France over the use of the income if paid over to it as proposed by the majority opinion. The title and beneficial use are here given to the legatee. The legatee having no authority to take this legacy at the time of the death of the testatrix the bequest was void (Owens v. Missionary Society of M. E. Church, 14 N. Y. 380; approved in Mount v. Tuttle, 183 id. 366; St. John v. Andrews Institute, supra; White v. Howard, 46 N. Y. 144; Murray v. Miller, No. 1, 85 App. Div. 414; affd., 178 N. Y. 316), and it lapsed and became part of the residuary estate. (Carter v. Board of Education, 144 N. Y. 621; Holland v. Alcock, 108 id. 312.)
I am of opinion, therefore, that the decree was right and should be affirmed.
Decree, in part, reversed, and final decree directed to be entered as indicated in opinion, with costs to be paid out of the fund to all parties appearing and filing briefs in this court. Order to be settled on notice to all parties, including the Attorney-General.