The will of the late George Doheny of Syracuse contained the following provision in relation to his residuary estate:
“ Seventh. All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to St. Joseph’s Hospital, the Syracuse Memorial Hospital, the House of Providence, St. Vincents Asylum and School (Madison St.), the Syracuse Free Dispensary, the Syracuse Homeopathic Hospital, St. Mary’s Maternity Hospital and Infants Asylum, the Onondaga Orphans Home and the Syracuse Home Association (commonly known as the Old Ladies Home) all of Syracuse, N. Y., share and share alike, one-*121ninth to each to be held as an endowment fund and the income used for the ordinary expenses of maintenance.”
The gift to the plaintiff which is in the hands of the plaintiff is of the value of $147,932.93 and interest. The real property of the plaintiff is now incumbered by a mortgage given to secure the payment of the sum of $175,000 and interest. The plaintiff proposes to use the entire gift from the late George Doheny, both principal and interest, to pay in part the debt secured by the mortgage on its real property, or, in its judgment, to use the principal of the fund for objects within its corporate powers other than meeting the ordinary expenses of maintenance. The defendant, on the other hand, resists the right of the plaintiff to make such use of the fund. In this action it is sought by declaratory judgment to determine whether the plaintiff may use the principal of the fund as proposed.
Charitable trusts and donations have presented many problems for judicial determination, and consistency in the decisions through the years has been an ideal rather than a reality. Judging the bequest in question in the light of the most recent decisions in this State, the conclusion is inevitable that no trust or trusts were created by the quoted provision of the will. The share for the plaintiff is not given for the benefit of any one else. (Rector, etc., of St. George’s Church v. Morgan, 88 Misc. 702.) No person other than the legatee is given control over the fund. (Associate Alumni v. Theological Seminary, 163 N. Y. 417.) The bequests of each of the nine shares are direct to the corporations named in the will. Under these circumstances, a charitable trust is not created. (Bird v. Merklee, 144 N. Y. 544; Sherman v. Richmond Hose Co., 230 id. 462; Johnston v. Hughes, 187 id. 446; Matter of Durand, 194 id. 477.) The rule is not altered by reason of the fact that the bequest is to a charitable or religious corporation. (Bird v. Merklee, supra; Matter of First Presbyterian Society of Buffalo, 106 N. Y. 251; Matter of Durand, supra; Matter of Allen, 111 Misc. 93; affd., 202 App. Div. 810; modfd. on another point and affd., 236 N. Y. 503; Matter of Hart, 205 App. Div. 703.) The gifts in Mr. Doheny’s will are absolute and not in trust.
The gifts are specified to be for purposes very clearly within the corporate capacity of the respective donees. They are not given upon condition; there is no provision for termination in case of diversion of the funds from the purposes indicated; there is no limitation over upon a variance in use by the corporation. The words of intention are clear, but do not impose a legal obligation. Charitable institutions ought to be scrupulous in the administration of funds received from benevolent, interested persons so as to comply with the intentions of the donors. We are not dealing, however, *122with what ought to be done, but with what must be done. As long as the corporation uses the funds which are its property absolutely for its corporate purposes, neither the donor’s representatives nor the State may intervene to require a strict compliance with the donor’s expressed intentions. It is well within the corporate powers of the plaintiff to make payments upon the mortgage. It is not proposed by the plaintiff to use the fund for any purpose not authorized by its charter.
We, therefore, find no infringement of any legal obligation. (Sherman v. Richmond Hose Co., supra; Johnston v. Hughes, supra.) An instructive exposition of the principles concluding us in this case is found in Justice Untermyer’s opinion in Corporation of Chamber of Commerce of State of N. Y. v. Bennett (143 Misc. 513).
In our opinion the paragraph at page 1094 of volume 2 of the Restatement of the Law of Trusts is not in accord with the law of this State. (See, also, Washington Univ. Law Quarterly, vol. XXIV, pp. 1, 30, 31.)
The judgment appealed from declared that the will of the testator in making the bequest to the plaintiff did not create a trust but made an absolute gift, and that the plaintiff might use the fund constituting the gift for any of its corporate purposes, including the payment of the principal and interest of the fund upon the mortgage debt. For the reasons given above the judgment should be affirmed, without costs.
All concur, except Lewis, J., who dissents and votes for reversal on the law and for granting of judgment for the defendant in an opinion. Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.