The only significant issue upon which there is disagreement in the court is whether the gift to the church lapsed by failure to comply and whether the cy pres doctrine should be applied. The present record is more than adequate to decide these questions and they should be answered in the affirmative.
From a reading of the will it is evident that the expressed purpose of the charitable trust was tó benefit the senior minister of the church or retired ministers of the Classis. It is further evident on this record that the circumstances have so changed since the making of the will that the trust cannot be carried out according to the provisions contained in the will. Whenever it appears that circumstances have so changed since the execution of an instrument making a disposition for charitable purposes as to render impracticable a literal compliance with the terms of such disposition, the court may decree that such disposition be administered and applied in such manner as in the judgment of the court will most effectively accomplish the general purposes free from any specific restriction or direction contained therein. (EPTL 8-1.1, subd [c].) A prerequisite to the application of this cy pres doctrine is that the court find a primary intention of the testator to devote his property to a general charitable purpose. Here, we find from the will as a whole that decedent manifested a general intention to devote his property to charitable purposes. There is a gift over if the church fails to provide a home for the senior minister, a direction for his trustee to establish a home for retired ministers of the Classis, with no conditions. There is an absence of a reversionary clause. Furthermore, decedent specifically referred to EPTL 5-3.3 *482which places a limit on gifts to charities. Having taken care of his wife as completely as he did, his main intent thereafter was to devote his property to charity. This is also evidenced by the token gift to his son. We conclude that the cy pres doctrine should be invoked. (Matter of Syracuse Univ. [Hendricks], 4 NY2d 744; City Bank Farmers Trust Co. v Arnold, 283 NY 184; Matter of Neher, 279 NY 370; Matter of Rupprecht, 271 App Div 376.)
We further conclude that the gift of the property to the church failed because the conditions attached thereto were not fulfilled. The trustee thereupon succeeded to such gift to establish a home for retired ministers of the Classis. In view of the apparent impracticability to establish such home at this time, the properties at 26 Washington Avenue and 4 West Front Street (clearly, in our opinion, intended to be "the property connected therewith” under paragraph "Fourth” of the will) should be sold as soon as practicable by the trustee under the will in order to prevent any further loss in connection therewith, and the net proceeds added to the corpus of the trust provided for in paragraph "Fifth”. The income from such trust funds should be applied by the trustee toward the support and maintenance of retired ministers who shall have served at least five years in the Classis of the Reformed Church of America of Schenectady, New York. In our opinion, this would most effectively accomplish the general purpose of decedent’s will.
On this record, there is clearly no basis for the Surrogate’s having to hold further proceedings to obtain more facts in order to decide these questions. To do so would only prolong the already protracted litigation of this case and cause further delay and waste of estate assets plainly meant by the testator for charitable purposes. The Supreme Court and the Surrogate’s Court have concurrent jurisdiction in matters involving decedents’ estates (NY Const, art VI, §§ 7, 12) and the Appellate Division has the same jurisdiction as the Supreme Court (NY Const, art VI, § 4, subd k). Although the Supreme Court generally will exercise its concurrent jurisdiction sparingly, under the special circumstances presented herein, in our view, this is a case within the exception to such general rule. (See, e.g., Bankers Sur. Co. v Meyer, 205 NY 219, 224.)
The judgment should be further modified and the matter remitted to the Surrogate’s Court for further proceedings in accordance herewith.
*483Herlihy, P. J., Koreman and Larkin, JJ., concur in Per Curiam opinion; Sweeney and Kane, JJ., dissent in part in an opinion by Sweeney, J.
Decree modified, on the law and the facts, by amending the Sixth decretal paragraph thereof so as to direct that the "Marital” or part "A” "Trust” is to be free from all expenses of administration, whether ordinary or extraordinary, and, as so modified, affirmed, without costs.