I find myself unable to agree with the views expressed in the majority opinion as to the appeal from the decree construing the trust clause.
As it seems to me, the controlling point in those views, as therein expressed, is that the provision in such clause, as to preferences, must be construed as preferring the thirteen individuals mentioned, and their lineal descendants, absolutely, *252without any specified qualification upon their part save that of being persons whose means are relatively small. At least such opinion quotes, with apparent approval, an excerpt to that effect from the opinion of the learned surrogate, and further declares: “Thus the preferences may readily absorb the purposes of the foundation, leaving nothing from this moderate income for outside aid.” The gist of this view appears to me to be that the persons of the preferred class are not required to have the general qualifications imposed by the trust clause upon other beneficiaries of the trust.
I disagree entirely with the learned surrogate and with the majority opinion as to the true construction of the preference clause. I think that it is to be construed as requiring the persons so preferred to have the qualifications previously specified for the general class of beneficiaries.
As to the sister Jessie, I see no inconsistency in the later statement of the will to the effect that she had means, because it would be no strange thing in our American life for such sister even to come to be without means or to have merely small means; and as to the three men mentioned, it must he noted that to the first general mention of the persons to be preferred the clause added the words “and their lineal descendants Forever.” It seems to me that as to the men, the obvious meaning is that their female descendants of the general class are to be so preferred, not that they themselves are to be. It seems, at least to me, quite unnatural and indeed forced to construe the language of a person, whom we have held capable of making a will, to mean that three men should be entitled to become members of a home which she designed to create “for Refined, Educated, Protestant, Gentlewomen,” if any other construction may possibly be had. I recall that in a most charming work of recent fiction, entitled “ Old Lady Number Thirty-one,” is to be found an instance of such male membership, but have never heard of any such in real life.
As to the apprehension expressed in the majority opinion that “the preferences may readily absorb the purposes of the foundation, leaving nothing from this moderate income for outside aid,” I think that it is groundless. With the preference clause construed as I have above suggested, it may *253well be that in a given generation no one person of any of the thirteen stocks mentioned will be able to qualify as a beneficiary.
It is a familiar doctrine, which has had recent utterance by the Court of Appeals in a similar- case, that where such a challenged clause is susceptible of two constructions, one of which will sustain the provision as a valid public charity and the other of which will make it void, the former construction will be adopted. (Matter of Robinson, 203 N. Y. 380, 388.) The opinion of that court upon this point said: “It is doubtless true that the paragraph of the will by which the trust is attempted to be created is susceptible of more than one construction, but a construction which is fairly within the rules of law and that Sustains the trust and devotes the fund included therein to purposes permitted by law and to the good of humanity should be preferred.” (203 N. Y. 388.)
That the preference clause here, construed as I have above suggested, does not make the trust provision invalid, has been held in effect in several Massachusetts decisions, namely: Dexter v. Harvard College (176 Mass. 192, 195), Kent v. Dunham (142 id. 216) and Darcy v. Kelley (153 id. 433). It seems to me, moreover, that the same doctrine was in effect held by our Court of Appeals in Matter of Robinson {supra), because that court there upheld the validity of such a trust provision in a will, although that provision contained a preference clause of “persons who are elderly or disabled from work, and to persons who are Christians, of good moral character, members of one of the so-called evangelical churches, to wit, the Methodist, Baptist, Presbyterian, Congregational, Moravian or Episcopal, and who are not addicted to the use of intoxicants .or tobacco, nor to attendance at theatrical entertainments.” (203 N. Y. 382, 389.)
The provision requiring the inmates to pay board not exceeding seven dollars a week “Towards paying the running expenses of the house,” does not prevent the home being regarded as a charitable institution. (Schloendorff v. New York Hospital, 211 N. Y. 125, 127; Starr v. Selleck, 145 App. Div. 869; affd., without opinion, 205 N. Y. 545.)
I vote, therefore, that the decree of the Surrogate’s Court *254appealed from, which construed the will and held the trust clause invalid, be reversed; and that said preference provision in such clause he construed as herein indicated; and that the decree appealed from, which admitted the paper writing to probate as the last will of the decedent, be affirmed, without costs to either party.
Rich, J., concurred.
Decree of the Surrogate’s Court of Westchester county of July 17 [27], 1914, admitting will to probate, and the further decree of said court of March 26, 1915, adjudging invalid the trust attempted to he created under said will, severally affirmed, with a single bill of costs to the executor, and one bill of costs to the contestant, payable out of the estate.