The gift to the hose company is absolute. It creates no trust. It does not revert to the Kenny estate. The intention expressed by the testatrix is that it should be kept intact and the income devoted "for whatever purposes its members acting as an organization may direct" so long as they might be "reasonable and proper uses of said company." She is talking about its uses and purposes de facto as known to her, rather than its uses and purposes de jure. Plainly these words and the surrounding circumstances imply a gift to the Richmond Hose Company because it was *Page 474 named in honor of Dean Richmond, the father of testatrix, rather than a purpose to aid in the suppression of fires in the village of Batavia or to reduce taxation. She viewed the company as a memorial agency rather than as a protective agency. Her aim was to continue to make the company important and attractive and a credit to the great man whose name it bore after her personal benefactions had ceased by reason of her death. A volunteer fire company often has, as this company had, social purposes as well as purposes of fire protection. A keen rivalry sometimes exists between companies in this regard. Such organizations serve to keep the name of their patron before the public in a manner gratifying to his self-esteem. The social standing of a prominent fire company in a village or its appearance "on parade" thus gives it prestige and induces others to seek membership to share in the pleasures as well as to bear the burdens of the organization. It is a social club to an extent, although in a technical sense an eleemosynary corporation.
If I understand the Mormon Church Case (136 U.S. 1) properly, it decides nothing except that Congress had power to forfeit and escheat to the United States the property of the Mormon church obtained or held in violation of the statutes to prevent and punish the practice of polygamy, and is not controlling here on the question of the disposition of the fund.
The legal entity, the corporation which held title, is dead. As it would have been acting ultra vires had it used the principal — or interest except for the purposes of the organization — so I think that it would be unreasonable to permit the members now to divide the fund among themselves, free from any legal or equitable obligation in favor of anybody. But in disposing of the money, it must be remembered that so far as Mrs. Kenny was interested in firemen, it was in volunteer firemen as represented by one company. As the *Page 475 fire department in a city changes from a volunteer service to a paid service, it has been the custom of the exempt or veteran volunteer firemen to organize for benevolent or charitable purposes under the Membership Corporations Law. (Cons. Laws, ch. 35.) Such organizations are recognized as subordinate governmental agencies. (Trustees of the Exempt Firemen'sBenevolent Fund of the City of New York v. Roome, 93 N.Y. 313. ) They may share in the tax on foreign fire insurance corporations. Ins. Law [Cons. Laws, ch. 28], § 133.) The exempt volunteers no longer render their services but they are recognized for the services they have rendered. They also have their social features, their parties and parades, their club rooms or houses. I assume that Batavia has or might have such an organization. The fund should, consistently with the original purposes of testatrix, be turned over to it under the direction of the court. The former members of Richmond Hose and other veteran volunteer firemen would then receive the benefit. It should be set apart as "The Dean Richmond fund established by Adelaide Richmond Kenny" and "be kept at all times intact, and the income derived from the safe and judicious investment thereof to be devoted to the reasonable and proper use of said (association) for whatever purposes its members, acting as an organization, may see fit to direct."
The judgment of the Appellate Division should be modified in accordance with this opinion and as so modified affirmed, without costs.