Follett, J.:
This action was begun in December, 1896, by the heirs and next of kin of Nathan F. Graves, deceased, to obtain a construction of his will. The testator died at Syracuse, N. Y., July 21, 1896, leaving a last will and testament drawn by .himself and executed September 15, 1893, which was duly admitted to probate by the Surrogate’s Court of the county of Onondaga September 5, 1896. The testator left a widow, Catherine H. Graves, two brothers and two nephews, the plaintiffs herein, his sole heirs and next of kin. August 15, 1896, Catherine H. Graves was duly adjudged to be a person incompetent to manage herself or her affairs, and Sidney B. Breese was appointed the committee of her person and estate, who answered in this action admitting the allegations in the complaint, that part of the will was invalid. July 12, 1897, Catherine H. Graves died, and Sidney B. Breese, who had been her committee, was duly appointed the administrator of her estate with the will annexed, who and all the heirs and next of kin of Catherine H. Graves were subsequently made parties defendant herein, and answered.
[488]*488The testator left a will which contains two clauses which are the subject of this litigation :
“ Tenth. I give, bequeath and devise all the, rest and residue of ■my property of every kind, personal and real, wherever situate, to my trustees hereinafter named for the purpose of founding, erecting and maintaining Graves Home for the Aged, to be located in the city of Syracuse in the State-of New York. It is intended as a home for those who by misfortune have become incapable of providing for themselves and those who have slender means of support. The institution to be known as The Graves Home for the Aged. I hereby appoint Charles E. Stevens, Rasselas A. Bohta and Maurice A. Graves for the trustees to execute the above trust. I hereby authorize and empower my executors or the survivor of them to rent or sell any part or all of my real estate that I may own at the time of my death. ..They are authorized to employ a person or persons to have charge of the real estate, to collect rents, make & to-repairs and to pay such sums for compensation as.they may deem reasonable and proper.
“ After my.executors have executed their trust and paid all the legatees provided for in this will, they are authorized and' directed to convey to the said trustees above named the balance and remainder of my property of every kind to be applied for the purposes above provided, and the said trustees or the survivor are authorized to rent or sell all or any part of my real or personal property and to employ such agents as- they may deem proper to take charge of the same and pay them such compensation as they deem best.
“ Eleventh. My -executors- or my trustees are authorized to retain my stock and shares in the New York State Banking Company and continue the business of banking for a term of years at their discretion, but may sell the same or any part thereof at any time, but the same is not to be continued nor any portion of my property held longer than the lives of Catharine Graves Roby, daughter of-Sidney B. Roby, of Rochester, and Helen Greese Graves, daughter of Maurice A. Graves, of Syracuse.”
It is apparent on the face of the will that by the 10th clause the testator intended to establish a permanent home for the aged, and not one which should endure only during the lives of Catherine [489]*489Graves Roby and Helen Greese Graves, the persons mentioned in the 11th clause. If the limitation prescribed by the lltli clause was intended to relate to property other .than to the shares in the .Few York State Banking Company, the testator’s purpose was that his executors should' not hold any part of his estate in their executorial capacity beyond the duration of these lives, and at the termination of that period the estate should be converted, all the legacies paid, and the residue turned over to the trustees for the Graves Home for the Aged, to be administered thereafter perpetually for the benefit of that charity. Such being the just and natural construction of the testator’s scheme, the result is that the power ■of alienation of the property attempted to be disposed of by the 10th •clause is suspended for more than two lives in being.
Again, by the 1st clause of the will the dividends on the shares in the Few York State Banking Company and the rents of the realty south of James street in .the city of Syracuse were to be paid to the widow during her life, and in case the limitation in the 11th--clause relates to all the testator’s property, the power of alienation as to bank shares and realty south of James street might, under the terms of the will, be suspended duilng three lives in being at the death of the testator, which would render the disposition of that part of the estate invalid. (Hawley v. James, 16 Wend. 61, 121; Tayloe v. Gould, 10 Barb. 388, 398; Schettler v. Smith, 41 N. Y. 328 ; 4 Kent’s Com. 283.)
In case the testator had died before May 13, 1893, when chapter 701 of the Laws of 1893 took effect, leaving a will disposing of his residuary estate, as provided by the 10th clause, such disposition would have been invalid for the additional reason that the beneficiaries attempted to be provided for are so indefinite as to be unascertainable. (Bascom v. Albertson, 34 N. Y. 584; Tilden v. Green, 130 id. 29.)
Chapter 701 of the Laws of 1893 was passed for the purpose of •abrogating the rule then existing, that devises and bequests otherwise valid were invalid in case the beneficiaries were indefinite and uncertain. The statute arose out of the discussion following the decision of Tilden v. Green (supra), which case followed a long line •of cases in tins State. This statute does not change the rule existing [490]*490in this State in respect to the limitation upon the power to suspend the alienation of property, or the limitation of the power of testators leaving a Avife, husband, child or parent to give more than one-half of their estate to benevolent, charitable, scientific, religious or missionary associations or corporations.. The statute expressly relates to gifts, grants, bequests or devises “which shall in other respects be valid under the laws of this state.” This language, it seems to me, expressly limits the. scope of the statute to the abrogation of 'the rule' in réspect to indefiniteness.
- The scope of this statute has not been judicially determined in this State, but three learned textwriters have construed it in harmony Avith the vieAvs above expressed. (Chaplin Exp. Trusts, § 514; Fowler Char. Uses, 106-111; Thomas Estates by Will, 847, 852.)
By the 10 th clause'of the will the residuum of the estate, which constitutes the greater part of the entire'estate, is to be held perpetually by the trustees named and those Avho shall succeéd them-in trust for the benefit of beneficiaries, so indefinite as to be unascertainable. The 11th clause of the will does not limit the duration of the Graves Home for the Aged during the lives of Catherine Graves Boby and of Helen Greese Graves, the clear intention of the testator being that the Graves Home should exist for an indefinite period, unlimited by time.
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Follett, J.:
This action was begun in December, 1896, by the heirs and next of kin of Nathan F. Graves, deceased, to obtain a construction of his will. The testator died at Syracuse, N. Y., July 21, 1896, leaving a last will and testament drawn by .himself and executed September 15, 1893, which was duly admitted to probate by the Surrogate’s Court of the county of Onondaga September 5, 1896. The testator left a widow, Catherine H. Graves, two brothers and two nephews, the plaintiffs herein, his sole heirs and next of kin. August 15, 1896, Catherine H. Graves was duly adjudged to be a person incompetent to manage herself or her affairs, and Sidney B. Breese was appointed the committee of her person and estate, who answered in this action admitting the allegations in the complaint, that part of the will was invalid. July 12, 1897, Catherine H. Graves died, and Sidney B. Breese, who had been her committee, was duly appointed the administrator of her estate with the will annexed, who and all the heirs and next of kin of Catherine H. Graves were subsequently made parties defendant herein, and answered.
[488]*488The testator left a will which contains two clauses which are the subject of this litigation :
“ Tenth. I give, bequeath and devise all the, rest and residue of ■my property of every kind, personal and real, wherever situate, to my trustees hereinafter named for the purpose of founding, erecting and maintaining Graves Home for the Aged, to be located in the city of Syracuse in the State-of New York. It is intended as a home for those who by misfortune have become incapable of providing for themselves and those who have slender means of support. The institution to be known as The Graves Home for the Aged. I hereby appoint Charles E. Stevens, Rasselas A. Bohta and Maurice A. Graves for the trustees to execute the above trust. I hereby authorize and empower my executors or the survivor of them to rent or sell any part or all of my real estate that I may own at the time of my death. ..They are authorized to employ a person or persons to have charge of the real estate, to collect rents, make & to-repairs and to pay such sums for compensation as.they may deem reasonable and proper.
“ After my.executors have executed their trust and paid all the legatees provided for in this will, they are authorized and' directed to convey to the said trustees above named the balance and remainder of my property of every kind to be applied for the purposes above provided, and the said trustees or the survivor are authorized to rent or sell all or any part of my real or personal property and to employ such agents as- they may deem proper to take charge of the same and pay them such compensation as they deem best.
“ Eleventh. My -executors- or my trustees are authorized to retain my stock and shares in the New York State Banking Company and continue the business of banking for a term of years at their discretion, but may sell the same or any part thereof at any time, but the same is not to be continued nor any portion of my property held longer than the lives of Catharine Graves Roby, daughter of-Sidney B. Roby, of Rochester, and Helen Greese Graves, daughter of Maurice A. Graves, of Syracuse.”
It is apparent on the face of the will that by the 10th clause the testator intended to establish a permanent home for the aged, and not one which should endure only during the lives of Catherine [489]*489Graves Roby and Helen Greese Graves, the persons mentioned in the 11th clause. If the limitation prescribed by the lltli clause was intended to relate to property other .than to the shares in the .Few York State Banking Company, the testator’s purpose was that his executors should' not hold any part of his estate in their executorial capacity beyond the duration of these lives, and at the termination of that period the estate should be converted, all the legacies paid, and the residue turned over to the trustees for the Graves Home for the Aged, to be administered thereafter perpetually for the benefit of that charity. Such being the just and natural construction of the testator’s scheme, the result is that the power ■of alienation of the property attempted to be disposed of by the 10th •clause is suspended for more than two lives in being.
Again, by the 1st clause of the will the dividends on the shares in the Few York State Banking Company and the rents of the realty south of James street in .the city of Syracuse were to be paid to the widow during her life, and in case the limitation in the 11th--clause relates to all the testator’s property, the power of alienation as to bank shares and realty south of James street might, under the terms of the will, be suspended duilng three lives in being at the death of the testator, which would render the disposition of that part of the estate invalid. (Hawley v. James, 16 Wend. 61, 121; Tayloe v. Gould, 10 Barb. 388, 398; Schettler v. Smith, 41 N. Y. 328 ; 4 Kent’s Com. 283.)
In case the testator had died before May 13, 1893, when chapter 701 of the Laws of 1893 took effect, leaving a will disposing of his residuary estate, as provided by the 10th clause, such disposition would have been invalid for the additional reason that the beneficiaries attempted to be provided for are so indefinite as to be unascertainable. (Bascom v. Albertson, 34 N. Y. 584; Tilden v. Green, 130 id. 29.)
Chapter 701 of the Laws of 1893 was passed for the purpose of •abrogating the rule then existing, that devises and bequests otherwise valid were invalid in case the beneficiaries were indefinite and uncertain. The statute arose out of the discussion following the decision of Tilden v. Green (supra), which case followed a long line •of cases in tins State. This statute does not change the rule existing [490]*490in this State in respect to the limitation upon the power to suspend the alienation of property, or the limitation of the power of testators leaving a Avife, husband, child or parent to give more than one-half of their estate to benevolent, charitable, scientific, religious or missionary associations or corporations.. The statute expressly relates to gifts, grants, bequests or devises “which shall in other respects be valid under the laws of this state.” This language, it seems to me, expressly limits the. scope of the statute to the abrogation of 'the rule' in réspect to indefiniteness.
- The scope of this statute has not been judicially determined in this State, but three learned textwriters have construed it in harmony Avith the vieAvs above expressed. (Chaplin Exp. Trusts, § 514; Fowler Char. Uses, 106-111; Thomas Estates by Will, 847, 852.)
By the 10 th clause'of the will the residuum of the estate, which constitutes the greater part of the entire'estate, is to be held perpetually by the trustees named and those Avho shall succeéd them-in trust for the benefit of beneficiaries, so indefinite as to be unascertainable. The 11th clause of the will does not limit the duration of the Graves Home for the Aged during the lives of Catherine Graves Boby and of Helen Greese Graves, the clear intention of the testator being that the Graves Home should exist for an indefinite period, unlimited by time.
■ It is- urged by the learned counsel for the respondent that the testator intended that there should be incorporated, under the name of the Graves Home for the Aged, a corporation Avhich should take the residuary estate for the purpose of carrying" out the provisions of the 10th clause. No such intention Avas expressed in the will, 'but in case such an intention can be, by any stretch of construction, inferred, the case of the respondents is not greatly aided, for it is conceded that by the 10th and preceding clauses of the avíII more than one-half of the testator’s estate is bequeathed -and devised for benevolent and charitable purposes. It is urged, however, that 'chapter 360 of the Laws'of 1860 places no limitation upon the power of testators to devise and bequeath more than half of their estates to charitable purposes unless given to charitable corporations. It is true that the statute limits the power of testators in such cases to give more than half of their estates to associations or corporations; but a construction of the statute that the limitation applies only to [491]*491the power of testators to give more than half of their estates to corporations existing at the death of the testators, and imposes no limitation upon their power to give to corporations to be created after their death, would be a nullification of the statute; and so I conclude that if a testator leaving a husband, wife, child or parent, gives more than half his entire estate to a benevolent corporation to be created after his death, the gift of more than one-half is invalid. In this case the testator’s widow, through her committee, asserted in her answer that the disposition of more than one-half of Ms estate for charitable purposes was invalid, and demanded that one-half thereof be paid over to her.
Many other questions are discussed in the briefs of the counsel for the parties, but for the reasons stated I think the judgment should be reversed and a new trial granted, with costs to the appellants, who have appealed from the whole of the judgment, to abide event.
All concurred, except Ward, J., dissenting.