People agt. Fitzgerald.

scribed by law and duly presented, and of such auditing, also by the order of the board, the clerk thereof gave to each a certificate of audit. These certificates were duly assigned to the relator, which in good faith, and believing the claims to be honest, advanced the money. The county treasurer, who is the respondent, refused to pay the same, and the application is for a peremptory mandamus to compel their pay

ment.

The above facts are admitted, but the respondent states he has been unable to find the parties in whose favor the bills. were audited, and that he verily believes that such alleged persons are fictitious and the bills fraudulent. He therefore insists that the validity of the several claims should be tested by a trial.

In Martin agt. The Board of Supervisors of the County of Greene (29 N. Y., 645), it was held, that the audit of the board of supervisors was conclusive as between the parties as to the amount of the claim, and that no action would lie to recover the amount disallowed because erroneously or improperly rejected. If the audit is conclusive in favor of the county, why is it not equally conclusive against it? The audit of the bills, which are the matter of controversy in this proceeding, was strictly in conformity with chapter 379 of the Laws of 1874. The clerk did designate upon each account the precise facts which that statute requires, “the time when and the amount audited and allowed thereon,' and subscribed his name thereto "officially as the clerk of such board." Every person who saw that certificate was thus informed, that the only body which could pass upon the claim had declared it to be valid, and had given to it a certificate, upon which the treasurer of the county must act. If that audit, of which the certificate was the evidence, was fraudulent, who should lose, the innocent purchaser of the claim, or the county, the agent of which has deceived him? Without any elaborate discussion of the principles involved, it seems to me that the county, and not the buyer, should be the loser.

People agt. Fitzgerald.

Strictly speaking, the certificate of the clerk of the board of supervisors is, perhaps, not a negotiable instrument, but in practice is so treated. The case of Pardee agt. Fish (60 N. Y., 265) is analagous, it seems to me, in principle to this. A bank which, through its officers, gives a certificate of deposit would be liable thereon, and I see no reason why the county should not be in this. Its liabilities depend upon the principle of estoppel which has been frequently applied to certificates declaring a certain sum due upon a mortgage, note or

an account.

Motion for peremptory mandamus granted.

Power agt. Cassidy.

SUPREME COURT.

HENRIETTA B. POWER, individually and as executrix, agt. HUGH CASSIDY, surviving executor, &c., &c., and others.

Will-construction-bequests to charities-annuity - Equitable conversion.

Where a testator disposed of the residue of his estate in these words: The balance I give to my executors, to be divided by them among such Roman Catholic charities, institutions, schools or churches, in the city of New York, as a majority of my executrix and executors shall decide, and in such proportions as they may think proper. Held, that the testamentary disposition was not invalid on account of vagueness or indefiniteness.

Also, that when a will affords a rule of ready application for selecting the object of the testator's bounty, and when the gifts are capable of being executed by a judicial decree, there is no reason why a court should not enforce them.

A majority of the "executrix and executors" having designated charitable societies, from the class mentioned by the testator:

Held, they are entitled to the gifts.

Also, that the refusal of one of the trustees to act with the others in making a selection of societies to take the testator's gifts, would not invalidate the decision and selection made by the majority.

Where a direct authority to sell the testator's real estate was given to the executors, and the entire will showed that the testator's intention was that the real estate should be converted into money for the purpose of consummating his gifts:

Held, that there is an equitable conversion.

Special Term, June, 1877.

James W. Gerard, for plaintiff.

B. F. Dunning, for defendant Peter Rice.

Jno. E. Develin, for charitable societies.

Power agt. Cassidy.

VAN VORST, J.- By the first clause of his last will and testament, John H. Power, the testator, after giving and devising one-third of the rest, residue and remainder of his estate to his wife, and one-third to his nephew, Peter Rice, disposed of the remainder in these words:

The balance I give to my executors, to be divided by them among such Roman Catholic charities, institutions, schools or churches, in the city of New York, as a majority of my executrix and executors shall decide, and in such proportions as they may think proper."

The evidence shows that there were, at the death of the testator, regularly organized and incorporated Roman Catholic charities, institutions, schools and churches, located in the city of New York, competent to take the testator's gift, and that after the death of the testator, Lewis J. White and Hugh Cassidy, the executors, &c., of the testator, being a majority of the "executrix and executors" named in the will, decided, and in writing designated, what Roman Catholic institutions of charity, asylums and hospitals, should take the one-third part of the testator's estate, above designated, and the proportions for each. All of which institutions are organized as corporations.

It is objected on the part of the plaintiff, the executrix and widow of the deceased, that the above clause of the will is invalid and inoperative in law, and she claims that the portion of the estate therein attempted to be given, is undisposed of.

The learned counsel for the plaintiff, in support of his view, that the provision is void, cites from Story's Equity Jurisprudence (secs. 964, 979) as follows: "Courts of equity carry trusts into effect only when they are of a certain and definite character. If, therefore, a trust be created in a party, but the terms by which it was created are so vague and indefinite that courts of equity cannot clearly ascertain either its objects or the persons who are to take, then the trust will be held entirely to fail, and the property will fall into the general

Power agt. Cassidy.

fund of the author of the trust." There can be no question. of the correctness of this principle governing courts of equity. It has been repeatedly acted upon and applied in the courts of this state (Owens agt. The Missionary Society, 14 N. Y., 380; Downing agt. Marshall, 23 id., 382; Sherwood agt. Amer. Bible Society, 1 Keyes, 561; Holmes agt. Mead, 52 N. Y., 332). After careful consideration I see nothing really vague or uncertain in the disposition made by the testator.

There is no uncertainty with respect to the trustees, for they are named, and have power to act. Nor, in a true sense, is there uncertainty as to the particular object of the testator's bounty.

He was a Roman Catholic, and his desire was, that the schools and institutions of charity connected with his church should share in a definite portion of his estate.

It is evident that the object which the testator would favor was the religious teaching and work of charity in which his church was engaged, and that not in an universal sense, but with limitation as to locality.

The church, the school, the institution in the city of New York, were the particular agencies through which the testator would accomplish his religious and benevolent purposes. There is nothing vague, indefinite or uncertain with regard to the agencies as a class.

They are distinct, and can readily be separated from the large number of religious and charitable organizations of New York, maintained by other Christian and benevolent bodies. They, in fact, constitute a limited and well defined class, have each a distinct organization, and are bodies corporate.

The duty of designating the particular institutions from the general class, is devolved upon the executrix and executors, who are also to determine the amount each shall receive. And when that has been done, the action would have the same effect as though the names of the particular institutions and charities were written in the will, and a court of equity would have no difficulty in enforcing the trust by its judgment.