(dissenting). Appeal by Elmira College, alternative residuary legatee, from a decree construing the will of testatrix. She left a will and two codicils whereby she directed the organization of a charitable corporation. The final direction as to the incorporation and its purpose is in the fourth paragraph of the first codicil. It is quoted in so far as it is relevant-to this discussion.
“ IV. As soon as convenient and possible after my decease, I direct the Executor of my said will, at- the expense of my estate, to cause to be organized and incorporated under the proper Law of the State of New York, a charitable corporation having its business office at Owego, New York, to be known as ‘ The Paget Price Presbyterian Home.’ The purpose of the corporation shall be to conduct a home for retired Presbyterian ministers and their wives. The number of its Trustees shall be at least six, a majority of whom shall be residents of the Town or Village of Owego, New York.”
She bequeathed the residuary portion of her personal estate to this corporation in trust, “ to invest the same and keep it invested and to apply the net income arising therefrom to the maintenance, upkeep and operation of said Home,” with the alternative pro*36vision contained in the second codicil: “ In case my intention with respect to the said Home shall, because of illegality, fail or become impossible of realization, then I give, devise and bequeath the property intended for the establishment and use of said Home to Elmira College, of which I am a graduate.”
Subject to the same alternative direction she devised in trust to the corporation when incorporated, for the benefit of the home, a farm of about thirty-two acres upon which there is a main residence, cottage, garage and outbuildings, also household furniture and effects. This real property is about three miles from Owego, N. Y. The residuary of her personal estate amounts to between $50,000 and $60,000, which, the evidence shows would return an income of between $2,000 and $2,500 annually.
A corporation of this kind may not be organized without the written approval of the Board of Social Welfare of the State (Social Welfare Law, § 35), and the home would be subject to visitation by the Board, and its recommendations, if not accepted, are enforcible by the Commissioner of Social Welfare by application, if necessary, to the Supreme Court. The appellant called as a witness the Director of the Bureau of Welfare Institutions and Agencies of the Social Welfare Department of' the State. He testified, in substance, that it would be impossible to conduct the home upon the income which would be available. He had inspected the real estate and considered the matter in his official capacity, and attended the hearing with the approval of the Commissioner of Social Welfare, the State paying his expenses. He stated in answer to an inquiry as to why the State would send an official to investigate and testify: “ The State does not want homes to be established which will give the Department difficulty. The State has had experience with such homes, and sends their men voluntarily without their being subpoenaed.” In answer to a similar question he said: “ We are interested in not having homes established that will, give us trouble later on.” Another witness was the matron of a home in Ballston Spa, N. Y., for .retired Presbyterian ministers and their wives. There were eleven guests in the Ballston home, with a capacity for six more. The inference to be drawn from her testimony agreed with that of the State official. Having in mind that inside and outside help would be necessary, and that the location would require a conveyance, the conclusion arrived at by these witnesses does not seem doubtful in view of the expense which is involved in conducting a similar private home.
The theory of the respondent that the guests would do their own work is not practicable, and would not be permitted by the supervising State authorities. The proposed guests would have *37served their congregations as long as physical and mental strength would permit. Such persons, of the age at which admissions are usual, would not be able to conduct this place in a manner creditable to the donor or the State. The will first provided for the establishment of the home under the supervision of the Board of Pensions of the Presbyterian Church. The change and other evidence permits the inference that this body of experienced churchmen, devoted to the best interests of the aged who had ministered to their congregations, regarded the matter as impracticable.
The trust created in Matter of MacDowell (217 N. Y. 454) and the issue presented there differ in all respects from the instant case. The $63,000 available was insufficient to carry out the trust in the manner contemplated by the testatrix, but that will contained no alternative bequest, and the court determined that the cy pres doctrine should be invoked. “ Inadequacy of the trust fund to accomplish the purpose of the testator in the manner originally intended may, however, justify the scheme of the charity being changed. If the Supreme Court cannot cause this trust to be carried out in the precise manner contemplated by the testatrix it will apply the trust fund to other charities as nearly as possible like that specifically mentioned in the will ” (p. 466). Matter of Fletcher (280 N. Y. 86) dealt with a trust and an inadequate income. The testator in his will provided for the establishment and maintenance of a hospital which would cost more than $300,000 to build, with the annual cost of operation more than $100,000. There was available a fund of about $150,000, two-fifths of which was to be expended for the building, and three-fifths devoted to a trust fund for maintenance. The will contained an alternative bequest: “ Fourteenth. Should any of the bequests made in this my Will, for any reason, be declared illegal or inoperative, I make a bequest or bequests of the same amount or values to Charles S. Chadwick, to be his and at his disposal.” The opinion states: “ Even if we were to assume that, in the absence of paragraph ‘ fourteenth ’ the provisions of subdivision 2 of section 12 of the Personal Property Law (Cons. Laws, ch. 41) and the recent decision of this court in Matter of Neher (279 N. Y. 370) would authorize the application of the cy pres doctrine, such an assumption would necessarily be rebutted by the explicit provisions of paragraph ‘ fourteenth.’ The testator, by paragraph ‘ fourteenth ’ made clear beyond any conceivable doubt that, if the bequest under paragraph ‘ fifth ’ should for any reason be declared inoperative, the amount therein mentioned should go to appellant Chadwick ” (p. 91).
*38The argument advanced by respondent that the fund could be invested at a higher rate of return, say five or six per cent, is not sustained by present-day investing experience. A high rate of return is a concomitant of insecure principal.
The decree of the surrogate should be reversed on the law and facts, and this court should make a finding that the project to establish the home is impossible of realization, and that Elmira College takes as a legatee under paragraph “ VII ” of the second codicil of the will.
Decree of the Surrogate’s Court affirmed, with costs and disbursements against appellant.