Adams, P. J.:
This is a submission of a controversy upon agreed facts, and the sole question presented thereby relates to the power of the plaintiff, a domestic corporation, to convey certain lands situate in the city of Niagara Falls,-and to give a good title thereto.
It. appears from the .stipulated facts that in the year 1852 one Samuel De Veaux, who resided in what was then the village of Niagara Falls, conceived the idea of founding a benevolent institution for the instruction, training and support of orphan children, and to carry out this design he, in his will, which was executed.on the third [463]*463day of August, in the year above named, after providing for the payment of certain specific bequests to his wife and others, devised and bequeathed the residue of his estate, both real and personal, to four trustees therein named, who were empowered and directed to use the estate thus devised and bequeathed for the “purpose of establishing, founding and maintaining a benevolent institution to train and support orphan and destitute children; to train them up to industry; to learn them trades and professions; to give them a mental and manual and a social and religious education.”
The will also provided that, within five years after the testator’s death, the trustees named therein, together with such other persons as “they may-think best to associate with them (such associates to be communicants of the Protestant Episcopal Church), incorporate under the general law of this State a benevolent institution for the purposes herein named, or obtain a special act of the Legislature for that purpose, and that immediately after such institution is incorporated they convey and transfer to the trustees and managers thereof all the real and personal estate remaining in their hands, after having provided for and invested funds and securities to meet and settle all the items, amounts and bequests hereinbefore mentioned.”
And in the event that the testamentary trustees failed to comply with the testator’s direction as to organization and incorporation, the will further directed that the residuary estate therein referred to should pass to the supervisors of Niagara county, “ to be used by them for the purposes herein set forth and intended.”
Pursuant to this requirement of the will the trustees therein named associated certain other persons with them, and within the. time prescribed procured the passage of a special act of the Legislature of this State, in and by which they were duly incorporated under the name of “ De Veaux College for Orphan and Destitute Children.” (Laws of 1853, chap. 243.)
This act, which has since been amended from time to time (Laws of 1857, chap. 385; Laws of 1883, chap. 295; Laws of 1889, chap. 44; Laws of 1891, chap. 158), provides, among other things, that “ The said corporation shall have perpetual succession and be capable of taking and holding "by purchase, gift, grant or devise, any real or personal estate for the purposes aforesaid {i.e., the pur[464]*464poses expressed in the will); but the yearly income of the same, and of the property so acquired under the said will, shall not exceed the sum of fifteen thousand dollars; and shall possess the powers and privileges and be subject to the liabilities and provisions contained in the third title of chapter eighteen'of the first part of the ¡Revised Statutes, as the same may have been amended, so far as the same may be applicable and not inconsistent with the provisions of this act.”
The act also provides that the corporation shall be under the management and control of nine trustees, whose powers, including that of perpetuation, are clearly defined.
On the second day of July following the passage of this act the trustees named in the. will conveyed to the plaintiff all of the real estate devised to them by the will of Judge De Yeaux, and the plaintiff thereupon took possession of the property thus conveyed and has ever since maintained a “ benevolent institution ” for the purposes set forth in the will. The property thus conveyed con-sisted of about 2,100 acres of real estate situated in Niagara and Erie counties, of the value of about $95,000, and subsequently personal property of the value of about $40,000 was also transferred to the plaintiff, so that the aggregate value of the entire property received by the plaintiff from the De Yeaux estate was about $135,000.
Included in the land conveyed to the plaintiff were two parcels known, as “ lots number thirty-three and thirty-four of the Mile . ¡Reserve, in the town and county of Niagara; ” and it was provided in the will of Judge De Yeaux that these two lots, embracing about 350 acres of land, should constitute the farm and 'domain of the institution thereafter to be created, and that the buildings of the institution should be erected and its business and operations conducted thereon. The testator also expressed a wish that the premises known as the “ Mount Eagle property ” might be retained for the institution or sold for its benefit, but at a price of not less than $100 per acre; and in the same connection he also declared that inasmuch as-“a- considerable part of lot number thirty-five may hereafter be advantageously sold for village purposes, the residue may be retained as a part of the institution’s domain, or sold, as the trustees and managers- may think best. But it is desired that no [465]*465sales be made until a reasonable period after such institution is incorporated.”
In compliance with these directions the college buildings have been erected upon lots 33 and 34, and these lots have constituted the “ farm and domain of said institution.”
The Mount Eagle property and certain other portions of the tract embraced in the deed to the plaintiff, including a considerable portion of lots 33 and 34, have also been sold from time to time, and the avails thereof have been applied to the use and benefit of the institution. Certain strips of lots 33 and 34 have likewise been acquired by condemnation proceedings for railroad and highway purposes, but the plaintiff has at all times retained and still retains a sufficient portion of the land embraced in these lots, exclusive of that agreed to be sold to the defendant, as hereinafter specified, to afford it ample acreage room and facilities for the farm and domain of its institution.
At the time of Judge De Yeaux’s death, which occurred upon the very day his will was executed, Niagara Falls was a small village, and the lands in question were located outside the corporate limits and near the village of Suspension Bridge. Since then, however, the two villages have been consolidated into a thriving and populous city, which embraces within its limits lots Nos. 33 and 34, some portions of which have been appropriated for city streets, while other portions have been laid out into city lots, and on or about October 5, 1895, the plaintiff entered into an agreement with the defendant for the sale of a strip of land constituting a part of and extending through these two lots for the sum of $18,068, which sum was and still is the full market value thereof.
The premises thus sold consisted of seventeen acres, and by the terms of the contract portions thereof were to be conveyed from time to time within a limited period, as the defendant might require, upon the payment by the latter of a proportionate price of the portion so required.
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Adams, P. J.:
This is a submission of a controversy upon agreed facts, and the sole question presented thereby relates to the power of the plaintiff, a domestic corporation, to convey certain lands situate in the city of Niagara Falls,-and to give a good title thereto.
It. appears from the .stipulated facts that in the year 1852 one Samuel De Veaux, who resided in what was then the village of Niagara Falls, conceived the idea of founding a benevolent institution for the instruction, training and support of orphan children, and to carry out this design he, in his will, which was executed.on the third [463]*463day of August, in the year above named, after providing for the payment of certain specific bequests to his wife and others, devised and bequeathed the residue of his estate, both real and personal, to four trustees therein named, who were empowered and directed to use the estate thus devised and bequeathed for the “purpose of establishing, founding and maintaining a benevolent institution to train and support orphan and destitute children; to train them up to industry; to learn them trades and professions; to give them a mental and manual and a social and religious education.”
The will also provided that, within five years after the testator’s death, the trustees named therein, together with such other persons as “they may-think best to associate with them (such associates to be communicants of the Protestant Episcopal Church), incorporate under the general law of this State a benevolent institution for the purposes herein named, or obtain a special act of the Legislature for that purpose, and that immediately after such institution is incorporated they convey and transfer to the trustees and managers thereof all the real and personal estate remaining in their hands, after having provided for and invested funds and securities to meet and settle all the items, amounts and bequests hereinbefore mentioned.”
And in the event that the testamentary trustees failed to comply with the testator’s direction as to organization and incorporation, the will further directed that the residuary estate therein referred to should pass to the supervisors of Niagara county, “ to be used by them for the purposes herein set forth and intended.”
Pursuant to this requirement of the will the trustees therein named associated certain other persons with them, and within the. time prescribed procured the passage of a special act of the Legislature of this State, in and by which they were duly incorporated under the name of “ De Veaux College for Orphan and Destitute Children.” (Laws of 1853, chap. 243.)
This act, which has since been amended from time to time (Laws of 1857, chap. 385; Laws of 1883, chap. 295; Laws of 1889, chap. 44; Laws of 1891, chap. 158), provides, among other things, that “ The said corporation shall have perpetual succession and be capable of taking and holding "by purchase, gift, grant or devise, any real or personal estate for the purposes aforesaid {i.e., the pur[464]*464poses expressed in the will); but the yearly income of the same, and of the property so acquired under the said will, shall not exceed the sum of fifteen thousand dollars; and shall possess the powers and privileges and be subject to the liabilities and provisions contained in the third title of chapter eighteen'of the first part of the ¡Revised Statutes, as the same may have been amended, so far as the same may be applicable and not inconsistent with the provisions of this act.”
The act also provides that the corporation shall be under the management and control of nine trustees, whose powers, including that of perpetuation, are clearly defined.
On the second day of July following the passage of this act the trustees named in the. will conveyed to the plaintiff all of the real estate devised to them by the will of Judge De Yeaux, and the plaintiff thereupon took possession of the property thus conveyed and has ever since maintained a “ benevolent institution ” for the purposes set forth in the will. The property thus conveyed con-sisted of about 2,100 acres of real estate situated in Niagara and Erie counties, of the value of about $95,000, and subsequently personal property of the value of about $40,000 was also transferred to the plaintiff, so that the aggregate value of the entire property received by the plaintiff from the De Yeaux estate was about $135,000.
Included in the land conveyed to the plaintiff were two parcels known, as “ lots number thirty-three and thirty-four of the Mile . ¡Reserve, in the town and county of Niagara; ” and it was provided in the will of Judge De Yeaux that these two lots, embracing about 350 acres of land, should constitute the farm and 'domain of the institution thereafter to be created, and that the buildings of the institution should be erected and its business and operations conducted thereon. The testator also expressed a wish that the premises known as the “ Mount Eagle property ” might be retained for the institution or sold for its benefit, but at a price of not less than $100 per acre; and in the same connection he also declared that inasmuch as-“a- considerable part of lot number thirty-five may hereafter be advantageously sold for village purposes, the residue may be retained as a part of the institution’s domain, or sold, as the trustees and managers- may think best. But it is desired that no [465]*465sales be made until a reasonable period after such institution is incorporated.”
In compliance with these directions the college buildings have been erected upon lots 33 and 34, and these lots have constituted the “ farm and domain of said institution.”
The Mount Eagle property and certain other portions of the tract embraced in the deed to the plaintiff, including a considerable portion of lots 33 and 34, have also been sold from time to time, and the avails thereof have been applied to the use and benefit of the institution. Certain strips of lots 33 and 34 have likewise been acquired by condemnation proceedings for railroad and highway purposes, but the plaintiff has at all times retained and still retains a sufficient portion of the land embraced in these lots, exclusive of that agreed to be sold to the defendant, as hereinafter specified, to afford it ample acreage room and facilities for the farm and domain of its institution.
At the time of Judge De Yeaux’s death, which occurred upon the very day his will was executed, Niagara Falls was a small village, and the lands in question were located outside the corporate limits and near the village of Suspension Bridge. Since then, however, the two villages have been consolidated into a thriving and populous city, which embraces within its limits lots Nos. 33 and 34, some portions of which have been appropriated for city streets, while other portions have been laid out into city lots, and on or about October 5, 1895, the plaintiff entered into an agreement with the defendant for the sale of a strip of land constituting a part of and extending through these two lots for the sum of $18,068, which sum was and still is the full market value thereof.
The premises thus sold consisted of seventeen acres, and by the terms of the contract portions thereof were to be conveyed from time to time within a limited period, as the defendant might require, upon the payment by the latter of a proportionate price of the portion so required.
On or about May 1, 1901, the plaintiff tendered to the defendant a warranty deed of a certain portion of the premises thus contracted for, which, under the terms of the contract, the plaintiff was then entitled to convey, and for which it was entitled to receive from the. [466]*466defendant the sum of $159, the same being a proper proportional amount of the entire purchase price of the seventeen .acres. Upon making such tender the plaintiff demanded of the defendant the sum above mentioned, which was refused solely upon the ground that, under the will of Judge De Yeaux and the subsequent conveyance to the plaintiff, the latter is unable to convey a good and marketable title to any of the lands embraced within the contract, and thus we have presented the single question which this court is called upon to determine.
We think it quite apparent that within the true intent and scope of the will of Judge De Yeaux, taken in its entirety, a discretionary power was conferred upon the trustees of the corporation to be thereafter created to sell portions of the lands held by it for the purpose of raising the necessary means with which to.carry out the object of the testator. Such intention is expressly manifested in the clause which suggests the propriety of disposing of the Mount Eagle property and a considerable part of lot No. 35, as well as by still another clause which expresses the desire that no sales (of real estate) be made until a reasonable period after the incorporation of the institution.
But it is insisted that a contrary intent is manifested, so far as lots 33 and 34 are concerned, inasmuch as the testator expressly declares that the buildings of the corporation to be thereafter created shall be erected and the business of the institution conducted upon these lots. We think that the most that can be claimed from the language of this particular portion -of the will is that it is a declaration by the testator that the premises referred to are devised for a specific use, and this being the case, it is, in the absence of any condition annexed thereto, ineffectual as a limitation of such use. In other words, the plaintiff, having come into possession of lots 33 and 34, Unrestricted as to their use by any express condition, is thereby invested with a discretionary power to use them for any purpose consistent with the general scheme of the testator, including, the power to sell such portions thereof as its trustees may deem advisable in order to maintain and support the “ benevolent institution ” which he had intended by his will to establish.
Were it possible to so construe the language of the will in question as to impose a condition, it . would necessarily be a condition [467]*467subsequent; and as the tendency of such conditions is to defeat estates, the courts are disposed to construe them strictly and they are frequently relieved against in equity. ( Woodworth v. Payne, 74 N. Y. 196; Graves v. Deterling, 120 id. 447; 2 Story Eq. Juris. § 1319 et seq.) A devise or grant of lands to trustees for a benevolent or charitable use does not create a conditional estate, and, in the absence of an express condition, is not liable to be defeated by either non-user or alienation. (Erwin v. Hurd, 13 Abb. N. C. 91; Matter of Sellers C. M. E. Church, 11 L. R. A. 282.) It was held by the Supreme Court of the United States, in Stanley v. Colt (5 Wall. 119), that whether the words in a devise constitute common-law conditions annexed to an estate, a breach of which or any one of which will work a forfeiture and defeat the devise, or are merely regulations for the management of the estate and explanatory of the terms under which it was intended to have it managed, is a matter to be determined not by any particular expressions in the devise, but by the entire will; and applying this rule to the present case, it seems quite clear that the testator’s declaration that lots Nos. 33 and 34 of the Mile Reserve should constitue the farm and domain of the institution he was seeking to establish, was but the expression of a desire that certain portions of his estate should be used and managed in a manner most likely to accomplish the object he had in view, and that when construed in connection with the entire instrument, such declaration indicated no intention upon the part of the testator to impose such use as an absolute condition of the devise.
Since the death of the testator the conditions surrounding his estate have greatly changed. Land that was then desirable for farming purposes only has little or no value for such purposes now, and probably the seventeen acres sold to the defendant are worth more for building lots than were the entire 350 acres of lots 33 and 34 at the time the will was executed. It is not impossible that it was within the contemplation of the testator that this condition of things might exist in the near future, and that for this very reason he invested his trustees and their associates and successors with very large discretionary powers. As he was a lawyer, he must certainly have known that if an incorporation was effected under the general laws of this State, as authorized by him, the “ benevolent institution ” he had in mind would thereby be empowered “ to hold, purchase and [468]*468convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter ” (2 it. S. [7th ed.] 1530, § 1, s'ubd. 4); and if he wished to guard against or in any wise limit the general powers to be thus created by statute, he should have protected himself by an express condition. .(Erwin v. Hurd, supra.)
The views, to which we have given expression seem to us to be in strict accord with well-recognized rules of law, and they are the inore readily adopted in the present instance by reason of the fact that while the sale of the real estate in question will furnish the plaintiff with the means necessary to its continued existence as a charitable institution, it will in no wise impair the usefulness of the remaining portion of lots 33 and 34 for the purposes of a “ farm and - domain.”
Our conclusion, therefore, is that the plaintiff is able to convey a good and marketable title to the lands embraced in its contract with ■the defendant, and that it is. consequently entitled to a judgment decreeing specific performance of such contract, together with the 'Costs of this action.
All concurred.
Judgment ordered for the plaintiff, decreeing specific performance, with costs.