By the Court, Miller, J.
The testator clearly intended by the seventh clause of his last will and testament, that the Reformed Dutch Church of Prattsville should have the benefit of the bequest made by him to the consistory, provided the consistory could control the bequest. The question then arises, whether this can be done by a disposition of his benefaction by and through th'e hands of the con[232]*232sistory of the church. I am inclined to think tnat it can be lawfully and properly disposed of by these officers, and will proceed to state the reasons which have brought my mind to this conclusion.
The Reformed Dutch Church of Prattsville was organized in 1802, and the consistory was cotemporaneous with its organization. In 1835, under the act of April 15, of that year, a board of trustees was elected, and from that ■ time the church appears to have had two sets of officers. There is a distinction between the powers of these two classes of officers, and their duties are not entirely of the same character. By section 4, of chapter 90, Session Laws of 1835, an act for the incorporation of religious societies, after trustees are elected and have met and organized, as contemplated by the act, the right and power of administering, enjoying and disposing of the temporalities of the church is transferred from the consistory to the trustees, “ except the fund raised or to be raised by charitable contributions in said church for the benefit of the poor thereof, commonly called the deacons’ fund.” The right to disburse the fund raised by charitable contributions is thus retained in the hands and under the control of the consistory, by express enactment, and with this fund the trustees have nothing to do. By chapter 1, article 3, section 2, of the constitution of the Reformed Dutch Church it is provided that the office of the deacons is “ diligently to collect all alms and other moneys appropriated for the use of the poor, and with the advice and consent of the consistory, cheerfully and faithfully to distribute the same to strangers as well as those of their own household,” &c. and “ should more be collected than the necessities of the poor may require, such surplus may, with the consent of the consistory, be devoted to other purposes connected with the wants of the church.” Bnder this provision of the constitution, the consistory had the power to supervise the disposition of the poor fund, and [233]*233with their consent any surplus might be disposed of, for the advancement of other objects connected with the church, besides those for which the fund was originally bestowed. They had a perfect right to. exercise entire control over all moneys belonging to the church, which had been contributed for charitable purposes; and this control was independent of the board of trustees. The power of the trustees was restricted to the temporalities, and embraced those matters which related to the ordinary business of the church, but did not extend to the funds contributed for charitable purposes. In reference to these funds, I think- the consistory constituted a separate and independent body, having unlimited control; who could sue and be sued or do any lawful act or thing which was essential to carry out the objects for which the funds were designed.
Having briefly stated the relative positions of these two bodies, it is important to examine the character of the bequest, in order to determine whether it is a valid one, and whether its distribution can be lawfully made by the consistory. I think that they were a body who were authorized to take by bequest; and that a bequest to them was a gift to competent trustees, who had power and authority to execute the trust, and to dispose of the fund in accordance with the decisions of the highest tribunal of this state. (Beekman v. Bonsor, 23 N. Y. Rep. 310. Williams v. Williams, 4 Seld. 525. Bascom v. Albertson, 34 N. Y. Rep. 584.)
A bequest to the consistory was in eflect a bequest to the church corporation itself, and was not the less so because it was devised to these oflieers. (New York Inst. for the Blind v. How's Ex'rs 6 Seld. 84-92 and cases cited.) ■ I discover no reason why the bequest was not a valid one, provided it came within the limits of their authority to dispose of it. By the will of the testator, the legacy was for the benefit and use of the church, in such manner as the con[234]*234sistory deemed best for the interest of the church. I think that the consistory had ample power to dispense this sum for charitable purposes, and such purposes would be for the use and benefit of the church. To some extent, at least, it would save the necessity of other contributions for that object, and those donations which were thus intended might be appropriated for oth'er purposes, and thus a benefit be conferred upon the church. If more funds were realized in this direction than was absolutely required, the consistory, by virtue of section 2 of article 3 of the constitution, before cited, would be authorized to appropiate them for other objects, which would be of advantage to the church, as had been its custom previously, and, as would seem, might perhaps be necessary to prevent an undue accumulation of this particular fund in their hands. The constitution was in force when the act of 1835 was passed, and the statute, in making an exception in favor of the fund raised for charitable contributions, must be considered in reference to the constitution as it then was, and as reserving all the rights and powers which then existed, as to the fund in question. 'The statute does not limit in any way the application of this fund for any specific purpose, and must be regarded, I think, as not intended to restrict its appropriation to any purpose different from what was sanctioned by the constitution of the church. The discretionary power vested "in the consistory, which conferred upon them a right to dispose of the fund as they might deem best for the interest of the church, must be construed to mean, and such, no doubt, was the intention of the testator, “ as they deemed best ” within the scope of the authority and powers conferred upon them by the constitution of the church and the statute referred to.
It is said that the legacy is not a charitable contribution in the church. It is certainly a contribution for the. benefit of the church, and as it is bequeathed directly to the consistory and they have the power to dispense charity, for [235]*235the benefit of the poor, I think it may be considered as a portion of the fund which they are authorized to hold and dispose of. They had a right to appropriate it for the benefit of the poor, if they deemed that proper and. advantageous. And so long as it was bequeathed to them and they had the power, under certain contingencies, to appropriate it for other purposes, it does not, I think, impair its validity because the testator did not specifically limit the application of the bequest.
It is further urged that it was not raised by contributions “in the church,” as it was donated outside of it. I scarcely think that the statute was intended to embrace only such donations as should be made within the walls of the church edifice, itself, and to exclude all which should be bestowed outside of the building. Such an interpretation would be narrow and restricted, and would exclude any contribution from an individual who was not actually present, and who preferred to dispense his charity to some of the officers, while not there.
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By the Court, Miller, J.
The testator clearly intended by the seventh clause of his last will and testament, that the Reformed Dutch Church of Prattsville should have the benefit of the bequest made by him to the consistory, provided the consistory could control the bequest. The question then arises, whether this can be done by a disposition of his benefaction by and through th'e hands of the con[232]*232sistory of the church. I am inclined to think tnat it can be lawfully and properly disposed of by these officers, and will proceed to state the reasons which have brought my mind to this conclusion.
The Reformed Dutch Church of Prattsville was organized in 1802, and the consistory was cotemporaneous with its organization. In 1835, under the act of April 15, of that year, a board of trustees was elected, and from that ■ time the church appears to have had two sets of officers. There is a distinction between the powers of these two classes of officers, and their duties are not entirely of the same character. By section 4, of chapter 90, Session Laws of 1835, an act for the incorporation of religious societies, after trustees are elected and have met and organized, as contemplated by the act, the right and power of administering, enjoying and disposing of the temporalities of the church is transferred from the consistory to the trustees, “ except the fund raised or to be raised by charitable contributions in said church for the benefit of the poor thereof, commonly called the deacons’ fund.” The right to disburse the fund raised by charitable contributions is thus retained in the hands and under the control of the consistory, by express enactment, and with this fund the trustees have nothing to do. By chapter 1, article 3, section 2, of the constitution of the Reformed Dutch Church it is provided that the office of the deacons is “ diligently to collect all alms and other moneys appropriated for the use of the poor, and with the advice and consent of the consistory, cheerfully and faithfully to distribute the same to strangers as well as those of their own household,” &c. and “ should more be collected than the necessities of the poor may require, such surplus may, with the consent of the consistory, be devoted to other purposes connected with the wants of the church.” Bnder this provision of the constitution, the consistory had the power to supervise the disposition of the poor fund, and [233]*233with their consent any surplus might be disposed of, for the advancement of other objects connected with the church, besides those for which the fund was originally bestowed. They had a perfect right to. exercise entire control over all moneys belonging to the church, which had been contributed for charitable purposes; and this control was independent of the board of trustees. The power of the trustees was restricted to the temporalities, and embraced those matters which related to the ordinary business of the church, but did not extend to the funds contributed for charitable purposes. In reference to these funds, I think- the consistory constituted a separate and independent body, having unlimited control; who could sue and be sued or do any lawful act or thing which was essential to carry out the objects for which the funds were designed.
Having briefly stated the relative positions of these two bodies, it is important to examine the character of the bequest, in order to determine whether it is a valid one, and whether its distribution can be lawfully made by the consistory. I think that they were a body who were authorized to take by bequest; and that a bequest to them was a gift to competent trustees, who had power and authority to execute the trust, and to dispose of the fund in accordance with the decisions of the highest tribunal of this state. (Beekman v. Bonsor, 23 N. Y. Rep. 310. Williams v. Williams, 4 Seld. 525. Bascom v. Albertson, 34 N. Y. Rep. 584.)
A bequest to the consistory was in eflect a bequest to the church corporation itself, and was not the less so because it was devised to these oflieers. (New York Inst. for the Blind v. How's Ex'rs 6 Seld. 84-92 and cases cited.) ■ I discover no reason why the bequest was not a valid one, provided it came within the limits of their authority to dispose of it. By the will of the testator, the legacy was for the benefit and use of the church, in such manner as the con[234]*234sistory deemed best for the interest of the church. I think that the consistory had ample power to dispense this sum for charitable purposes, and such purposes would be for the use and benefit of the church. To some extent, at least, it would save the necessity of other contributions for that object, and those donations which were thus intended might be appropriated for oth'er purposes, and thus a benefit be conferred upon the church. If more funds were realized in this direction than was absolutely required, the consistory, by virtue of section 2 of article 3 of the constitution, before cited, would be authorized to appropiate them for other objects, which would be of advantage to the church, as had been its custom previously, and, as would seem, might perhaps be necessary to prevent an undue accumulation of this particular fund in their hands. The constitution was in force when the act of 1835 was passed, and the statute, in making an exception in favor of the fund raised for charitable contributions, must be considered in reference to the constitution as it then was, and as reserving all the rights and powers which then existed, as to the fund in question. 'The statute does not limit in any way the application of this fund for any specific purpose, and must be regarded, I think, as not intended to restrict its appropriation to any purpose different from what was sanctioned by the constitution of the church. The discretionary power vested "in the consistory, which conferred upon them a right to dispose of the fund as they might deem best for the interest of the church, must be construed to mean, and such, no doubt, was the intention of the testator, “ as they deemed best ” within the scope of the authority and powers conferred upon them by the constitution of the church and the statute referred to.
It is said that the legacy is not a charitable contribution in the church. It is certainly a contribution for the. benefit of the church, and as it is bequeathed directly to the consistory and they have the power to dispense charity, for [235]*235the benefit of the poor, I think it may be considered as a portion of the fund which they are authorized to hold and dispose of. They had a right to appropriate it for the benefit of the poor, if they deemed that proper and. advantageous. And so long as it was bequeathed to them and they had the power, under certain contingencies, to appropriate it for other purposes, it does not, I think, impair its validity because the testator did not specifically limit the application of the bequest.
It is further urged that it was not raised by contributions “in the church,” as it was donated outside of it. I scarcely think that the statute was intended to embrace only such donations as should be made within the walls of the church edifice, itself, and to exclude all which should be bestowed outside of the building. Such an interpretation would be narrow and restricted, and would exclude any contribution from an individual who was not actually present, and who preferred to dispense his charity to some of the officers, while not there. Such clearly could not have been the intention of the statute.
A point is pressed upon our attention to the effect that the" executor canuot be decreed to pay the legacy to the church unless he can collect the amount from the estate of Lucas E. Brandow who was to pay it to the executors, under the eighth clause of the will. Ho such point appears to have been taken before the surrogate, and it is not discussed in his opinion. In fact he considers the simple question whether the consistory, or the residuary legatees, are entitled to the legacy.- It also appears from the return to the appeal that sufficient assets of the estate properly applicable to the legacy had come to the hands of the executors, if the consistory were entitled to receive it. Upon these conceded facts, it is evident that the objection is not a valid one.
It is also insisted that there was no election of a consistory for several years prior to the proof of the will in [236]*2361859, and there being no consistory in existence when the will took effect, the bequest was invalid. Although the record of the church does not show any election of a consistory between November, 1850, and October, 1859, there was positive proof before the surrogate that for a period of thirty-two years, embracing "the time above stated, there had been an acting consistory, composed of the minister, elders and deacons. Even if no election had been had, which is not to be regarded as established, as the evidence stands, the trustees and officers of a religious corporation hold over until others are chosen in their places. (The People v. Runkle, 9 John. 147. 10 Modern, 146.) But the question cannot be raised collaterally, upon this appeal. It can only be presented by a direct proceeding for that purpose. There was a consistory de facto at the time of the testator’s death, and being such by color of office, their proceedings are valid until they are ousted by a judgment at the suit of the people. (See 9 John. 147; Trustees of Vernon Society v. Hllis, 6 Cowen, 23; Slee v. Bloom, 5 John. 375.)
[Albany General Term,
September 16, 1867.
As the surrogate erred in adjudging that the legacy to the appellants was void, the proceedings before him must be reversed. The questions involved are difficult and intricate, and I therefore think that the costs of this appeal should be paid out of the estate.
Decree of the surrogate reversed, as to the disallowance of the. legacy, and so modified as to direct the payment of such legacy, with interest, and the costs of both parties on the appeal, out of the estate.
Miller, Eogeboom and IngaUs, Justices.]