are not able to follow, and feel compelled to reject its application to the construction of our own statute."

before revocation of the gift by the donor, although it was not present when the gift was made, or it was not even in esse at the time. The consent that the donee shall take the property as owner must be presumed, unless revoked, until possession is obtained.' Under the lease, the plaintiff, as between him and Mrs. Markham, was in possession of the farm. The colt, being on the farm, was in his actual custody and control. He had the charge and care of it. Upon the evidence it might be found that she had given it to him absolutely. If the declaration in June was only of an intention, the subsequent declarations were of such a character that it might be found that she had made the gift absolute. It might also be found that she had parted with all dominion or control over it, or right to possession which she might have had. If she did so, that would make it a completed gift. The fact that it remained on the farm was not necessarily incon

In Porter v. Gardner, 60 Hun, 571, the owner of a farm leased it to her nephew, reserving the right to pasture two colts. At the time of the lease, and subsequently, three colts which had belonged to her were pastured there. The owner expressed an intention to give the third colt, which was two years old, to her nephew. She also said that she would keep it for him until it was three years old, and that he might keep it right there. After this the nephew took charge of it. Other witnesses testified that she had told them she had given it to her nephew. In an action by the nephew against her executor to recover for a conversion of the colt, held, that the question of delivery should have been submitted to the jury. The court said: "There seems to be no question about the intention of Mrs. Mark-sistent (Armitage v. Mace, 96 N. Y. 542), nor was the ham, but the defendant claims there was no delivery sufficient to make a valid gift. In some cases it has been held that a delivery might be inferred from declarations that a gift had been made. In Grangiac v. Arden, 10 Johns. 293, 296, it is said that declarations, referring to and recognizing a gift as having been made, afford reasonable ground for a jury to infer that all the formality necessary to make it a valid gift had been complied with. The principle of this case seems to have been recognized in Young v. Young, 80 N. Y. 435. In Trow v. Shannon, 78 N. Y. 446, a finding of delivery was sustained though there was no direct evidence of it. There were admissions by the donor that she had given the bonds there in question and that they belonged to the donee, and weight was given to these admissions, as some evidence from which the jury might infer that the gift had been completed by an absolute delivery. In Harris v. Hopkins, 43 Mich. 272, it was held that evidence that a decedent had stated positively that she had given certain specified furniture to her sons and had previously declared an intent to give it, and that one of the sons remained in her house until her death, warrants a finding of a complete gift in presenti. So it has been held that a delivery is not necessary when the intended donee is already in possession, but that in such a case the gift, if completed and unambiguous, may be effected by a simple oral declaration.

fact of no apparent change in the control. Tenbrook v. Brown, supra. The situation, relation and circumstances of the parties, and of the subject of the gift, may be taken into consideration in determining the intent to give and the fact as to delivery. Cooper v. Burr, 45 Barb. 33. In that case it is said that a total exclusion of the power or means of resuming possession by the donor is not necessary. In Penfield v. Thayer, 2 E. D. Smith, 305, it was held that it was not necessary to take at the time manual possession. If the article given is at the time in the custody of the donee, the declarations of the donor to the effect that the donee is absolute owner, and characterizing the possession of the donee as absolute, will authorize the inference of complete delivery by the donor. An acceptance may be implied when the gift, otherwise complete, is beneficial to the donee. Beaver v. Beaver, 117 N Y. 429; Hunt v. Hunt, 119 Mass. 474.”

WILL-TRUST-TO FOUND PUBLIC LIBRARY
--UNCERTAINTY.

NEW YORK COURT OF APPEALS, SECOND DIVISION,
OCT. 27, 1891.

TILDEN V. GREEN.

Prov. Institute for The testator, by his will, gave the residue of his estate to his

Savings v. Taft, 14 R. I. 502; Wing v. Merchant, 57 Me. 383; Tenbrook v. Brown, 17 Ind. 410; 8 Am. & Eng. Ency. of Law, 1319, and cases cited. Substantially the same was held in Taber v. Willets, 44 Hun, 348.

In Stevens v. Stevens, 2 Hun, 470, a gift causa mortis of a note was held to be effectual where there was no delivery in fact, it being said by the court, the small note was in his (the donee's) possession, that is, it was in the bureau in his house and presumptively accessible to him.' In Whiting v. Barrett, 7 Lans. 109, it is said by Mullin, P. J.: It would seem to me that when the owner of property makes a verbal gift of it to another, such other acquires a perfect title if he gets possession of it

executors and trustees in trust, to obtain an act of incorporation of an institution to be known as the "Tilden Trust," "with capacity to establish and maintain a free library and reading-room in the city of New York, and to promote such scientific and educational objects as my said executors and trustees may more particularly designate," and provided that in case such institution should be incorporated satisfactorily to them within the life of the survivor of two specified lives in being, the executors and trustees were authorized to organize the corporation, and convey or apply to its use the residue of his estate, or so much as they should deem expedient. The will further provided that in case said institution should not be so incorporated, or if for any reason the executors and trustees should deem it inexpedient so to convey or apply said fund, or any part thereof, then they were author ized to apply the same "to such charitable, educational and scientific purposes" as in their judgment will render the same most widely and substantially beneficial

to the interests of mankind." The trustees obtained the charter as thus required, and conveyed to it the residuary estate. Held, that the trust was void for want of a certain designated beneficiary, for uncertainty and indefiniteness in the objects thereof, and for excess of discretion shall have not less than five trustees, with power

the city of New York, and to promote such scientific and educational objects as my said executors and trustees may more particularly desiguate. Such corpora

tion in the trustees.

to fill vacancies in their number, and in case said institution shall be incorporated in a form and manner sat

APPEAL from a judgment of the General Term of isfactory to my said executors and trustees during the

the First Judicial Department, which modified and affirmed as modified a judgment of the Special Term.

James C. Carter, Daniel C. Rollins and Geo. F. Comstock, for appellants.

life-time of the survivor of the two lives in being upon which the trust of my general estate herein created is limited, to-wit: the lives of Ruby S. Tilden and Susie Whittlesley, I hereby authorize my said executors and trustees to organize the said corporation, designate the first trustees thereof, and to convey or apply to the use

Joseph H. Choate, Delos C. McCurdy and Lyman D. of the same the rest, residue and remainder of all of my Brewster, for respondents.

BROWN, J. Samuel J. Tilden died in August, 1886, leaving a last will and testament dated in April, 1884. He left surviving him as his only next of kin and heirs at law one sister, two nephews, one of whom is the plaintiff in this action, and four nieces.

real and personal estate not specifically disposed of by this instrument, or so much thereof as they may deem expedient, but subject nevertheless to the special trusts herein directed to be constituted for particular persons, and to the obligations to make and keep good the said special trusts, provided that the said corporation shall be authorized by law to assume the obligation. But in case such institution shall not be so incorporated during the life-time of the survivor of the said Ruby S. Tilden and Susie Whittlesey, or if for any cause or reason my said executors and trustees shall deem it inexpedient to convey said rest, residue and remainder, or any part thereof, to apply the same or This action was brought to obtain a construction of any part thereof to said institution, I authorize my the will. By the complaint the thirty-third, thirty-said executors and trustees to apply the rest, residue fourth and thirty-fifth articles were assailed as being invalid, but upon the trial no question was raised as to the two first named and no determination in respect thereto was made.

The defendants, Bigelow, Green and Smith, were by the will appointed the executors thereof, and trustees of the trusts therein created, and the will having been duly admitted to probate in October, 1886, they immediately qualified and entered upon the discharge of their duties as such.

The Supreme Court held that the effect of the thirtyfifth and thirty-ninth articles of the will was to create one general trust for charitable purposes, embracing the entire residuary estate, and vested in the trustees a discretion with respect to the disposition of such estate by them. That the testator did not intend to and did not confer upon any person or persons any enforceable right to any portion of said residuary estate, and did not designate any beneficiary who was or would be entitled to demand the execution of the trust in his or its behalf, and declared the provision of the will relating to the disposal of the residuary estate for such reasons illegal and void.

It is essential to a proper understanding of the will to read the two articles above named together, and they are here quoted, the last being placed first.

"Thirty-ninth. I hereby devise and bequeath to my said executors and trustees, and to their successors in the trust hereby created, and to the survivors or survivor of them, all the rest, residue and remainder of all the property, real and personal, of whatever name or nature, and wheresoever situated, of which I may be seized or possessed, or to which I may be entitled at the time of my decease, which may remain after instituting the several trusts for the benefit of specific persons; and after making provision for the specific bequests and objects as herein directed, to have and to hold the same unto my said executors and trustees, and to their successors in the trust hereby created, and the survivors or survivor of them in trust, to possess, hold, manage and take care of the same during a period not exceeding two lives in being, that is to say, the lives of my niece, Ruby S. Tilden, and my grand niece, Susie Whittlesey, and until the decease of the survivor of the said two persons, and after deducting all necessary and proper expenses, to apply the same and the proceeds thereof to the objects and purposes mentioned in this my will."

"Thirty-fifth. I request my said executors and trastees to obtain, as speedily as possible, from the Legislature an act of incorporation of an institution to be known as the Tilden Trust,' with capacity to establish and maintain a free library and reading-room in

and remainder of my property, real and personal, after making good the said special trusts herein directed to be constituted, or such portion thereof as they may not deem it expedient to apply to its use, to such charitable, educational and scientific purposes as in the judgment of my said executors and trustees will render the said rest, residue and remainder of my property most widely and substantially beneficial to the interests of mankind."

On March 26, 1887, subsequent to the commencement of this action, the Legislature passed an act incorporating the "Tilden Trust," and authorizing it to establish and maintain a free library and reading-room in the city of New York. The institution was organized, and the executors and trustees made to it a conveyance of the residuary estate, and the conveyance was formally accepted by the trustees thereof.

The law is settled in this State that a certain designated beneficiary is essential to the creation of a valid

trust.

The remark of Judge Wright in Levy v. Levy, 33 N. Y. 107, that if there is a single postulate of the common law established by an unbroken line of decisions it is that a trust without a certain beneficiary who can claim its enforcement is void," has been repeated and reiterated by recent decisions of this court (Prichard v. Thompson, 95 N. Y. 76; Holland v. Allcock, 105 id. 312; Reud v. Williams, 125 id. 560), and the objection is not obviated by the existence of a power in the trustees to select a beneficiary, unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain who were the objects of the power.

The equitable rule that prevailed in the English Court of Chancery known as the cy-pres doctrine and which was applied to uphold gifts for charitable purposes, when no beneficiary was named, has no place in the jurisprudence of this State. Holmes v. Mead, 52 N. Y. 232; Holland v. Allcock, supra.

If the Tilden Trust is but one of the beneficiaries which the trustees may select as an object of the testator's bounty, then it is clear and conceded by the appellants that the power conferred by the will upon the executors is void for indefiniteness and certainty in objects and purposes. The range of selection is unlimited. It is not confined to charitable in

un

defeated by any person.

stitutions of this State, or of the United States, but ant estates are substituted in their place, and such embraces the whole world. Nothing could be more estates, when the contingency happens upon which indefinite or uncertain, and broader and more un- they are limited, vest by force of the instrument crelimited power could not be conferred than to apply theating them, and this right in the expectant cannot be estate to "such charitable, educational and scientific But the testator here inpurposes as in the judgment of my executors will ren- tended not to create such an estate. The Tilden Trust der said residue of my property most widely and sub- takes nothing by virtue of the will. The residuary esstantially beneficial to mankind." tate is vested in the trustees, or intended to be, and it is solely by their action that it is to become vested in the Tilden Trust.

"A charitable use where neither law nor public policy forbids may be applied to almost any thing that tends to promote the well-doing and well being of social man." Perry Trusts, § 637.

"Such a power is distinctly in contravention of the policy of the statute of wills. It substitutes for the will of the testator the will of the donees of the power and makes the latter controlling in the disposition of the testator's property. That cannot well be said to be a disposition by the will of the testator with which the testator had nothing to do except to create an authority in another to dispose of the property according to the will of the donees of the power." Read v. Williams, supra, p. 569.

Unless therefore within the rules which control courts in the construction of wills, we can separate the provision in reference to the Tildeu Trust from the general direction as to the disposition of the testator's residuary estate contained in the last clause of the thirty-fifth article, and find therein that a preferential right to some or all of such estate is given to that institution when incorporated, and one which the court at the suit of said institution could enforce within the two lives which limit the trust, we must, within the principle of the cases cited, declare such provision of the will invalid, and affirm the judgment of the Supreme Court. The appellants claim that the power conferred upon the executors to endow the Tilden Trust may be upheld independent of the invalidity of the power given to apply the estate to such charities as would most widely benefit mankind.

The proposition is that by the thirty-fifth article the testator made two distinct alternative provisions for the disposition of his residuary estate. One primary for the incorporation and endowment of the Tilden Trust, the other ulterior and to be effectual only in case the executors deemed it inexpedient to apply the residue to that corporation, and it is claimed that this provision of the will constitutes a trust to be executed for the benefit of the Tilden Trust, or confers upon the trustees a power in trust, or that it constitutes a gift in the nature of an executory devise.

The latter proposition rests upon the assumption that there is by the will a primary gift, complete and perfect in itself, to the Tilden Trust, that vests the title in that corporation immediately upon its creation.

That a valid devise or bequest may be limited to a corporation to be created after the death of the testator, provided it is called into being within the time allowed for the vesting of future estates, is not denied. Perry Trusts, 372, § 736.

That question was decided in Inglis v. Trustees of the Sailors' Snug Harbor, 3 Pet. 99, and in Burrill v. Boardman, 43 N. Y. 254.

In those cases the gift was treated as in the nature of an executory devise dependent upon the incorporation of the institution contemplated by the will, and which would vest upon the occurrence of that

event.

But in view of the language of the will before us, that proposition cannot be maintained here.

By an executory devise a freehold was limited to commence in the future, and needed no particular estate to support it. It arose upon the happening of a specified event, and the fee descended to the heir at law until the contingency happened. By our Revised Statutes, executory devises are abolished, and expect

It is only in case that the executors deem it expedient so to do that they are to convey the whole or any part of the residue to the Tilden Trust. Whether that corporation should take any thing rested wholly in the discretion of the executors, as the expediency or inexpediency of an act is always a matter of pure discretion. 2 Perry Trusts, $$ 507-506.

Every expression used in the will indicates the bestowal of complete discretionary power to convey or not to convey, and the creation and bestowal of such a power in the executors is wholly opposed to and fatal to the existence of an executory devise.

In this respect the case differs from those cited. In Inglis v. The Sailors' Snug Harbor there was no trust created, no discretion vested in the executor, no conveyance to be made after the testator's death. His intention to give his property to a corporation to be created to carry out his charitable purpose was clear. Such was the fact also in Burrill 7. Boardman.

By the will in that case the property was given directly to the corporation which the testator contemplated should be created after his death. No trust was created and no discretion was bestowed upon the executors to determine whether the corporation should or should not have it.

Once created, the property by force of the will vested in the corporation. The only similarity between that case and this is that the trustees there, as here, were directed to apply to the Legislature for an act of incorporation. In case the Legislature refused to grant a liberal charter, then the trustees were directed to pay over the estate to the government of the United States.

But no discretion was given to the executors to determine upon any event whether or not the corporation once created should take the property.

"Nothing," said Chief Justice Church, "can be more certain than that the testator designed that the title to the funds or property in the possession of the trustees or elsewhere, which was included in the residuary clause, should vest in the corporation immediately upon its creation."

"An application was to be made to the Legislature after the testator's death for a charter. If obtained, the bequest would take effect; if not, it would go to the ulterior donee. If the corporation applied for and granted should not be liberal, and in accordance with the provisions of the will, the ulterior donee or next of kin could challenge its right to take the bequest. It would then become a judicial question." So clearly no question in that case was left to the judgment of the trustees. They were not to determine even whether the charter was a liberal one. That was a question for the court that would have been decided in any contest over the property between the corporation and the next of kin or ulterior donee. A discretionary power in executors or trustees was not therefore au element in the Burrill Case. Not so here. Here we have the unlimited authority delegated to the executors to withhold the entire property from the corporation, if they choose so to do. There the corporation once created was vested immediately by force of the will with the title to the property. Here, although the corporation may be created in a form and manner satisfactory to the trustees, it takes nothing unless the executors, considering every cause and reason, deem it

rights are subject to it, but if invalid they immediately become entitled to the property. Hence the existence of a valid trust is essential to one claiming as trustee to withhold the property from the heir or next of kin. What a trustee or donee of a power may do becomes therefore immaterial. What he does must be done under a valid power or the act is unlawful. If the power exercised is unauthorized, the act is of no force or validity. In such case there is no trust or power. There is nothing but an unauthorized act, ineffectual for any purpose.

It is not deemed material to the decision of the ques tion now under consideration, whether the provisions of the will relating to the residuary estate are regarded as constituting a trust or a power in trust, except so far as that fact may be indicative of the testator's intention.

where the grantee of the power has the right of selec tion among a class of objects. Sec. 97. And sections 100 and 101 make provision for the execution by a court of equity of trust powers where the trustee dies or where the testator has created a valid power, but has omitted to designate a person to execute it. A trust power, to be valid, therefore must designate some person or class of persons other than the grantee of the power as its objects, and it must be exercised for the sole benefit of such designated beneficiary, and its execution may be compelled in equity. A non-enforceable imperative power is an impossibility under our law, unless by the instrument creating it, it is expressly made to depend for its execution on the will of the grantee.

In every case where the trust is valid as a power the lands to which the trust relates remain in or descend to the persons otherwise entitled subject to the execu tion of the trust as a power. 1 Rev. Stat. 729, § 59.

Before applying these rules to the case before us our duty is to ascertain the testator's intent from an inspection of the will, and for this purpose we must read the whole instrument, including the provisions admitted to be void. Those provisions, though ineffectual to dispose of the property, cannot be obliterated when

If there was a trust then the executors took title to the residuary estate; but if there is created a valid power in trust, it will be executed with substantially the same effect as if the will created a trust estate. But section 58 of the statute of uses and trusts, which declares that when an express trust is created for any purpose not enumerated in the foregoing sections, no estate shall vest in the trustees, but the trust, if directing the performance of an act which may be law-examining it for the purpose of ascertaining the testafully performed under a power, should be valid as a power in trust, is not of course susceptible of the construction that a trust invalid because in conflict with some cardinal rule of law could be upheld as a power.

Every trust necessarily includes a power. There is always something to be done to the trust property, and the trustee is empowered to do it, and if the trust is invalid because the power to dispose of the property is not one that the law recognizes, it cannot be upheld as a power in trust. The rules applicable to the execution of trusts in this respect are equally applicable to the execution of powers, and as it is of no particular importance in this case in whom the title to the residuary estate is vested, it is not material to the decision whether the provisions of the will are examined as a trust or as a power in trust. The purpose of the trust is lawful, and personal property which constitutes the greater part of the testator's estate was a proper subject of the trust that the testator intended, and if it is invalid it is because the power conferred on the trustees for the disposal of the estate is so uncertain and indefinite that its execution cannot be controlled or enforced by the courts.

In Pritchard v. Thompson the legal title to the fund was vested in the executors in trust. In Read v. Williams the executors were given a power in trust. But the court said that there was in that respect uo legal distinction, and the power in the latter, as the trust in the former case, was declared invalid.

But the nature of the estate which the testator intended to convey to his trustees and the nature of the power intended to be delegated to them is of importance in ascertaining his intent and determining what was the scheme that he had for the disposal of his property. By our Revised Statutes (vol. 1, p. 733) powers as they existed by the common law were abolished, and thereafter their creation, construction and execution were to be governed by statute. They are classified as general and special, beueficial and in trust. A beneficial power is one that has for its object the grantee of the power, and is executed solely for his benefit. Sec. 79. Trust powers, on the other hand, have for their object persons other than the grantee, and are executed solely for the benefit of such other persons. Secs. 94, 95. Trust powers are imperative, and their performance may be compelled in equity unless their execution or non-execution is made expressly to depend on the will of the grantee. Sec. 96. And a trust power does not cease to be imperative

tor's intention. Van Kleech v. Dutch Church, 20 Wend. 457; Kiat v. Grenier, 56 N. Y. 220.

The prominent fact in the testator's will is that he intended to give his property to charity. He intended that none of his heirs or next of kin should take any of it except such as he gave to them through the several special trusts that he created for their benefit. He emphasized this purpose in the last article of his will by providing that any of them who should institute or share in any proceeding to oppose the probate of the will, or to impeach, impair or to set aside or invalidate any of its provisions should be excluded from any par ticipation in the estate, and the portion to which he or she might otherwise be entitled to under its provisions should be devoted to such charitable purposes as his executors should designate. To the accomplishment of this purpose he intended to create a trust, and doubtless believed that he created a valid one. He created numerous trusts for the benefit of his relatives and for the creation of other libraries and readingrooms. These he denominated "special trusts." In the thirty-ninth article he devised and bequeathed to his executors and "to their successors in the trust hereby created, and to the survivor and survivors of them," all the rest and residue of his property, "to have and to hold the same, unto my said executors and trustees, and to their successors, in the trust hereby created, * * * to possess, hold and manage the same "during the lives of his niece Ruby S. Tilden and his grandniece Susie Whittlesey, and "to apply the same and the proceeds thereof to the objects and purposes mentioned in this my will." He gave to his executors the power to collect the income of the whole estate, that which was set apart in the special trusts and that constituting the trust of the residuary estate. The trust of the residuary estate he denominated the "general trust," and in the twenty-sixth article he gives direction as to the disposition of the surplus income "during the continuance of the trust of my general estate."

It is clear therefore that the testator intended to create a trust of his residuary estate, and in plain, unequivocal language he indicated his purpose to be that the trustees should be vested with the title to the property until they should divest themselves of it in carrying out the purposes mentioned in the will, and which are to be found in the thirty-fifth article. Turning to this article, the important feature is that the power there given to the trustees, and the only power that could absolutely effectu