OPINION OF THE COURT
Mollen, P. J.
The issue presented on this appeal is whether the equal protection clause of the Fourteenth Amendment is violated when a Surrogate reforms the provisions of a will so as to give effect to a testamentary bequest which discriminates on the basis of sex.
In 1978 Edwin Irving Johnson died. His will created a gender-restricted scholarship fund to be administered by the Croton-Harmon Union Free School District for the benefit of its needy and deserving male high school graduates. The school district declined to award the scholar[3]*3ships on a gender-restricted basis, proposing instead to make the selections without regard to sex. In a proceeding to construe the will so as to permit gender-neutral scholarship awards, the Surrogate refused to delete the sex restriction. Instead, he decreed that the school district be replaced by a private trustee who was willing and able to administer the fund and award the scholarships as directed in the will (108 Misc 2d 1066). The appellant and amici curiae now contend that the Surrogate’s decree, which clears the way for scholarships to be awarded on a discriminatory basis, is both inconsistent with a proper application of the doctrine of cy pres and violative of the constitutional guarantee of equal protection of the law.
We turn first to a brief review of the pertinent facts.
On June 30, 1961, Mr. Johnson executed a will which bequeathed his residuary estate to Columbia University in trust. The income of the trust was to be paid first to his sister-in-law and, upon her death, to the trustees of Columbia University. The trustees were to apply the income to scholarships for young men from the Croton-Harmon Union Free School District who were attending Columbia. A further provision of the will directed that, if continuation of the Columbia scholarship fund became impractical, the corpus of the trust would be divided equally between the university and the school district for scholarship purposes. A subsequent will, dated December 4, 1974, contained identical provisions regarding the creation of a scholarship fund at Columbia University.
At one point, the university expressed dissatisfaction with that portion of the bequest limiting the class of beneficiaries to those of its students who had graduated from the high school of the Croton-Harmon school district. When the university asked that the restriction be modified, Mr. Johnson’s attorney replied that his client’s interest in the school district was greater than his interest in Columbia.
The will here in issue, Mr. Johnson’s last, was executed on December 15, 1975. The bequest to Columbia University was deleted and replaced with a provision bequeathing the residuary estate to the Croton-Harmon school district with a direction that the district apply the funds for schol[4]*4arships to needy college-bound graduates without regard to the university to be attended. Again, however, the will contained a gender restriction, providing that the scholarships were to be granted to “deserving young men”. The specific provision was as follows: “sixth: I give, devise and bequeath my entire residuary estate to croton-harmon union free school district, the principal of which shall be invested and held for the purposes hereof, and the net income of which shall be used and applied, each year to the extent available, for scholarships or grants for bright and deserving young men who have graduated from the High School of such School District, and whose parents are financially unable to send them to college, and who shall be selected by the Board of Education of such School District with the assistance of the Principal of such High School.”
Mr. Johnson died on January 10, 1978, and his will was admitted to probate four months later. Pursuant to article sixth, his executrix made distributions to the CrotonHarmon Union Free School District of $195,000, representing the entire residuary estate. In April, 1979, the district’s board of education announced that the Edwin Irving Johnson scholarships were to be awarded and that applications would be accepted from graduating male students on or before May 1, 1979.
Although only male applicants were solicited, at least one female student applied for a scholarship, and threatened to seek Federal injunctive relief if she were denied consideration on account of her sex. In addition, the National Organization for Women Legal Defense and Education Fund contacted the Civil Rights Office of the Department of Health, Education and Welfare (HEW), and alleged that, in proposing to award gender-restricted scholarships, the school district was acting in violation of title IX of the Education Amendments of 1972 (US Code, tit 20, § 1681, subd [a] et seq.). As a result of this communication, HEW commenced an investigation to determine whether the school district was engaged in discrimination on the basis of sex.
Thereafter, the school district decided to defer awarding the scholarships and entered into a stipulation with the [5]*5executrix of the will and with the Attorney-General of the State of New York by which they agreed “to the deletion of the word ‘men’ in Article Sixth of the Will and the insertion of the word ‘persons’ in its place”. On June 11, 1979, the Attorney-General commenced this proceeding to have the Surrogate construe article sixth of the Johnson will as agreed in the stipulation. The purpose of such a construction, the Attorney-General asserted, was “to permit the educational bequest set forth [therein] to be administered in accordance with the testator’s general charitable intent without violation of the United States Constitution, the Constitution of the State of New York, Federal Law and the public policy as reflected in [those] provisions prohibiting discrimination based on sex.”1
The Surrogate first appointed a guardian ad litem to represent Mr. Johnson’s unknown distributees. The guardian submitted a report in which he offered no opposition to the proposed construction. His position was that, as there probably were no surviving distributees who might qualify to take in intestacy, “the decedent would prefer that scholarships be provided to girls as well as boys, if the alternative * * * would be to have his residuary estate pass as intestate property” and thereby escheat to the State. After receiving this report, the Surrogate appointed a second guardian ad litem — this one to represent prospective male scholarship recipients under the will as written. The second guardian submitted a report in which he opposed the stipulated construction. He maintained that “the appropriate remedy is for the Court to apply the cy pres doctrine to appoint a new administrator for the scholarship fund which is not an instrumentality of the State.”
The Surrogate, finding (108 Misc 2d 1066, 1070, supra) the establishment of a gender-restricted scholarship fund “neither illegal nor against public policy”, directed that the school district, which had refused to administer the discriminatory trust, be replaced by a private trustee who would comply with the provisions of the will. Although the selection of scholarship recipients was to be the independent responsibility of the private trustee, the Surrogate [6]*6directed (p 1073) that the trustee “may consider any recommendations that may be made to it by the Board of Education of the Croton-Harmon Union Free School District or principal of the high school”.
It is from the intermediate decree, entered upon the Surrogate’s decision, that the Attorney-General now appeals. The decree should be reversed.
The bequest here in issue, which sought to provide higher education for those who could not otherwise afford it, created a charitable trust. It has long been recognized that “[c]harity ministers to the mind as well as to the body” and, accordingly, “[i]t is established law in this state that a gift for the promotion of education or learning is a gift for charitable uses” (Butterworth v Keeler, 219 NY 446, 449, 450 [Cardozo, J.]; see, also, EPTL 8-1.1, subd [a]; 4 Scott, Trusts [3d ed], § 370). Moreover, the trust here does not lose its charitable character because its beneficiaries are limited to males (see 4 Scott, Trusts [3d ed], § 370.6; Restatement, Trusts 2d, § 370, Comment [j]). A charitable trust may be restrictive, provided only that the class of beneficiaries is sufficiently large so that the public is interested in the enforcement of the trust (4 Scott, Trusts [3d ed], § 369.5).
Although charitable in nature, however, the trust Mr. Johnson created was clearly vulnerable to an equal protection challenge. By naming the Croton-Harmon Union Free School District, a public agency, as trustee to receive, invest, administer and dispense scholarship funds and to select scholarship recipients, the bequest required substantial State involvement, thereby triggering the guarantees of the Fourteenth Amendment (see, e.g., Pennsylvania v Board of Trusts, 353 US 230; Wachovia Bank & Trust Co. v Buchanan, 346 F Supp 665, affd 487 F2d 1214; Matter of Crichfield Trust, 177 NJ Super 258, 261; cf. Shapiro v Columbia Union Nat. Bank & Trust Co., 576 SW2d 310 [Mo]).2 Those guarantees would plainly be violated by the award of scholarships pursuant to the bequest’s sex-based discriminatory restriction because such restriction had no substantial relation to the goal of promoting higher educa[7]*7tion (see Kirchberg v Feenstra, 450 US 455; Califano v Westcott, 443 US 76; Craig v Boren, 429 US 190; Stanton v Stanton, 421 US 7; Reed v Reed, 404 US 71; People v Whidden, 51 NY2d 457). As the Supreme Court itself has observed, “[cjoeducation is a fact, not a rarity” (Stanton v Stanton, supra, p 15). Thus, as written, Mr. Johnson’s bequest was fatally flawed, for an agency of the State cannot constitutionally administer a scholarship program which discriminates on the basis of sex (see Matter of Crichfield Trust, supra).
When the Attorney-General petitioned for the construction of the will, therefore, the Surrogate was presented, not merely with an unremarkable situation in which a trustee is unwilling or unable to perform, but with a testamentary trust which by its terms was constitutionally infirm. The Surrogate undertook to remove the infirmity, and the questions presented here concern whether he should have undertaken that task and, if so, whether the course he chose was appropriate and proper.
A charitable trust which is impossible to perform need not fail if the evidence demonstrates that the settlor had a general charitable intent. Where such an intent is shown, the court may reform the trust to permit it to be performed in a way that is as consistent as possible with the settlor’s original intent (see, e.g., Sherman v Richmond Hose Co. No. 2, 230 NY 462, 473; EPTL 8-1.1, subd [c]). In our view, the evidence before the Surrogate amply demonstrated that Mr. Johnson had a general charitable intent.
From 1961 onward he made substantial provision in his wills for educational scholarships, first for graduates of the Croton-Harmon school district’s high school attending Columbia University, then for the district’s graduates regardless of which college they planned to attend. Significantly, in his 1961 and 1974 wills, Mr. Johnson directed that, if the trust became impractical to administer, the corpus was to be divided equally between Columbia and the school district to permit them to continue awarding scholarships as they saw fit. His last will contained no reverter or gift-over clause. Thus, Mr. Johnson has never made provision for the scholarship funds to be applied to any noncharitable purpose in the event the trust as written [8]*8proved impossible to perform. The absence of such an alternative disposition is generally taken as substantial evidence of a general charitable intent (see Matter of Syracuse Univ. [Hendricks], 1 Misc 2d 904, 912-913, affd 3 AD2d 890, affd 4 NY2d 744; Matter of Lawless, 194 Misc 844, 855, affd 277 App Div 1045; Bogert, Trusts and Trustees [2d ed, rev], § 437; 4 Scott, Trusts [3d ed], § 399.2; see, also, Matter of Fletcher, 280 NY 86, 91). Additionally, whereas the trust here was impossible to perform because of the combination of the identity of the trustee and the restriction placed on the class of beneficiaries, there is no evidence to suggest that either factor was an essential or indispensable element of Mr. Johnson’s desire to create a scholarship fund. There is no indication, therefore, that a modification of either factor would do violence to Mr. Johnson’s fundamental intent (cf. Evans v Abney, 396 US 435; Matter of Syracuse Univ. [Heffron], 3 NY2d 665). Indeed, the guardian for unknown distributees asserted that his examination of the will and its predecessors led him to conclude that Mr. Johnson would have preferred the removal of the gender restriction to the failure of the trust.
Accordingly, we conclude that the Surrogate was correct in determining that it was appropriate to reform the trust. We turn, then, to the question of whether the reformation he made was proper.
The Surrogate was presented with two options for removing the obstacle to the performance of the trust. The Attorney-General, supported by the executrix and the school district and unopposed by the guardian for unknown distributees, asked that the gender restriction on the class of beneficiaries be deleted. The guardian for prospective male scholarship recipients asked, in effect, that the school district be replaced as trustee by a person or entity not connected with the State (see SCPA 1502). The Surrogate chose the latter course finding, as do the distinguished dissenters in this court, that Mr. Johnson’s primary and unambiguously expressed intent was to provide scholarships only for “bright and deserving young men”, and that that purpose was more important to him than having the district serve as trustee. Concededly, this position may be viewed as consistent with the general rule that the identity [9]*9of the beneficiary is presumed to be more important to the settlor than the identity of the trustee (see Bogert, Trusts and Trustees [2d ed, rev], § 328). Nevertheless, our review of the record persuades us that it was at least as important to Mr. Johnson that the school district act as trustee as that the scholarships be awarded on a discriminatory basis. Moreover, we conclude that, whatever Mr. Johnson’s primary intent, the Surrogate’s decree cannot stand because it offends the equal protection clause of the Fourteenth Amendment.
In supporting the Surrogate’s determination upholding the gender restriction, the dissenters place heavy reliance upon the right of every individual to dispose of his property as he sees fit. It is indeed fundamental that one may dispose of his property to selective beneficiaries such as a favored religious institution, a fraternal organization, or a group which performs good work for limited segments of society. And the right, of course, is not necessarily limited to the disposition of property to groups or causes which society views as worthy. The right to dispose of property may be exercised as well in a manner that indulges one’s own personal bigotry and irrational prejudices. Private discrimination, no matter how egregious, distasteful, or morally reprehensible, is not constitutionally proscribed (see, e.g., Adickes v Kress & Co., 398 US 144,169; Shelley v Kraemer, 334 US 1, 13).
Nevertheless, it is both the genius and the strength of our system that rights, no matter how important, are rarely, if ever, absolute (see Schermerhorn v Rosenberg, 73 AD2d 276, 283). So it is with the right to freely dispose of one’s property. It has long been settled, for example, that our courts will not give effect to a testamentary disposition designed to carry out some immoral or illegal purpose (see, e.g., Matter of Hughes, 225 App Div 29, 30-31, affd 251 NY 529; 4 Scott, Trusts [3d ed], § 377; Restatement, Trusts 2d, § 377). Similarly, and as relevant here, the right to dispose of property in an invidiously discriminatory fashion may not be exercised in a way that enlists the substantial participation of the State or its agents in the accomplishment of the discriminatory purpose (see, e.g., Jackson v Statler Foundation, 496 F2d 623, 633-634, cert den 420 US [10]*10927; see, also, Evans v Newton, 382 US 296, 298). “Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in * * * discrimination.” (Adickes v Kress & Co., 398 US 144,190-191, supra [Brennan, J., concurring in part and dissenting in part].)
Thus, the constitutional guarantee of equal protection of the law comes forcefully into play whenever State action fosters or encourages invidious discrimination (see, e.g., Moose Lodge No. 107 v Irvis, 407 US 163, 173, 176-177). Nevertheless, in the absence of obvious government involvement in discrimination, it is often difficult to determine whether the State’s connection with the challenged conduct is sufficiently substantial to amount to State action within the contemplation of the Fourteenth Amendment (see Moose Lodge No. 107 v Irvis, supra, p 172).
The Supreme Court has never accomplished the virtually impossible task of formulating a comprehensive definition of State action (see Reitman v Mulkey, 387 US 369, 378; Kotch v Pilot Comrs., 330 US 552, 556). Instead, the court, on an essentially ad hoc basis, has looked to different factors, depending largely upon the context in which the constitutional claim arises. In some instances, the court has focused simply on whether there is a close nexus between the actions of the State and the challenged conduct (see, e.g., Jackson v Metropolitan Edison Co., 419 US 345). In other cases the court has relied on indications of a symbiotic relationship between the State and the individual charged with invidious discrimination (see, e.g., Burton v Wilmington Parking Auth., 365 US 715). On occasion, the court has pointed to joint activity by the actor and State agents (see, e.g., Flagg Bros, v Brooks, 436 US 149). Still elsewhere, the court has found State action where private discriminatory activity is undertaken under compulsion of some State enforced custom (see, e.g., Adickes v Kress & Co., supra). And, in another context, the court has found State action where a private entity performs a public function which is traditionally the exclusive prerogative of [11]*11the State (see, e.g., Marsh v Alabama, 326 US 501). On the other hand, the fact that a private entity receives some public funds or enjoys a tax exemption is not generally regarded as sufficient to trigger the guarantees of the equal protection clause (see, e.g., Rendell-Baker v Kohn, 457 US 830; see, also, Dorsey v Stuyvesant Town Corp., 299 NY 512). Nor does State action necessarily exist solely because a private entity is subject to State regulation (see, e.g., Blum v Yaretsky, 457 US 991; Jackson v Metropolitan Edison Co., supra).
The rule emerging from the long course of constitutional litigation is that State action will be found where the court, “by sifting facts and weighing circumstances” (Burton v Wilmington Parking Auth., 365 US 715, 722, supra), determines that “the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the state” (Lugar v Edmondson Oil Co., 457 US 922,_, 102 S Ct 2744, 2754). And, “where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discriminations’ * * * in order for the discriminatory action to fall within the ambit of the constitutional prohibition” (Moose Lodge No. 107 v Irvis, 407 US 163, 173, supra; see, also, Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 158).
Beyond this, however, there are well-settled principles which obtain in equal protection cases and which are particularly helpful to our analysis of the issues at bar. The very earliest cases in the area recognized that, for the purposes of the Fourteenth Amendment, State action may be found in the conduct of the State’s judicial authorities (see, e.g., Virginia v Rives, 100 US 313, 318; Ex parte Virginia, 100 US 339, 347; Civil Rights Cases, 109 US 3, 11; Twining v New Jersey, 211 US 78, 91; Brinkerhoff-Faris Co. v Hill, 281 US 673, 680). Thus, under the principle that the Constitution is violated when the State “enforces privately originated discrimination” (Moose Lodge No. 107 v Irvis, 407 US 163,172, supra; see, also, Griffin v Maryland, 378 US 130,136), the Supreme Court has found unconstitutional State action where the State’s judiciary is called upon to enforce a private and invidiously discriminatory covenant (Shelley v Kraemer, 334 US 1, supra) or to [12]*12award damages for its breach (Barrows v Jackson, 346 US 249). As the court has observed, “[t]he Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals” (Shelley v Kraemer, supra, p 22).
It is these principles which must govern the disposition of the case at hand.
As previously indicated, we do not view the circumstances here as akin to those in which a named trustee, through death, illness or disinclination, becomes unable to perform his responsibilities. The Croton-Harmon school district, as an agency of the State, was unable to carry out its duties under the bequest because it was constitutionally prohibited from doing so. Accordingly, there was more here than the simple performance by a Surrogate of the relatively neutral function of substituting one trustee for another (see SCPA 1502).
The Surrogate was asked, not only by the Attorney-General of the State, but impliedly by the named trustee and by Mr. Johnson’s executrix, to delete the gender restriction in order to preserve the trust. Acting essentially sua sponte, however, the Surrogate, in an effort to adhere to what he believed to be Mr. Johnson’s primary intent, decided instead to remove the district as trustee and to direct that a private trustee be substituted to administer the scholarship fund on the discriminatory basis set forth in the will. Significantly, under the Surrogate’s decision, the private trustee, without being bound by the strictures of the Fourteenth Amendment, would remain free to receive what might well prove to be decisive recommendations from the school district. The decree, therefore, accomplished indirectly what could not be accomplished directly, viz., the selection of scholarship recipients by the school district on a gender-restricted basis. Acting in the capacity of a State judicial officer, the Surrogate issued a decree which enforced privately originated discrimination by removing the constitutional obstacle that prevented it. This, in our view, was inconsistent with the purposes and principles of the Fourteenth Amendment (see, e.g., Matter of Crichfield Trust, 177 NJ Super 258, 262, supra).
[13]*13Instructive on this point is the celebrated litigation surrounding the will of Stephen Girard, a wealthy resident of Philadelphia who died in 1831. The will left in trust a considerable sum to the City of Philadelphia, and to its Mayor and aldermen to be used, inter alia, for the purpose of establishing an educational institution for the training and maintenance of “poor white male orphans”. The trust was administered by various city agencies until 1869 when, by State law, a local board of trusts was established to oversee and administer the institution. In 1954, two otherwise qualified black children applied for admission to the institution and were refused under constraint of the bequest’s racial restriction. Their subsequent court challenge reached the Supreme Court which held that, since the board of trusts was a State agency, its refusal to admit the children because of their race was unconstitutional discrimination by the State. The court remanded the cause for further proceedings (see Pennsylvania v Board of Trusts, 353 US 230, supra).
On remand, the Pennsylvania Supreme Court simply remitted the matter to the Orphans’ Court of Philadelphia which promptly replaced the board of trusts with a private trustee to administer the institution on the racially restricted basis prescribed in the will. On the appeal that followed, the Pennsylvania Supreme Court upheld the substitution of trustees (Matter of Girard Coll. Trusteeship, 391 Pa 434, cert den sub nom. Pennsylvania v Board of Trusts, 357 US 570). The court saw the issue largely as concerning “the right of a private individual to bequeath his property for a lawful charitable use and have his testamentary disposition judicially respected and enforced” (391 Pa, at p 441). The court distinguished Shelley v Kraemer (334 US 1, supra) and Barrows v Jackson (346 US 249, supra) on the ground that the black applicants to the Girard institution had not been deprived of any constitutionally guaranteed right since they had no right in the first instance to be beneficiaries under the will.3 Finally, [14]*14the court concluded that the substitution of trustees was entirely appropriate as it would be in any case in which the named trustee could no longer serve.
Following the rejection of their challenge in the Pennsylvania Supreme Court, the black children instituted a Federal class action. The District Court sustained their constitutional claim largely on the basis of the “momentum” created by the long-standing direct connection between the Girard institution and the State (Commonwealth of Pennsylvania v Brown, 270 F Supp 782). The court held that (p 790) “the transfer of immediate supervisory control to private trustees by the Orphans’ Court failed to effectively disassociate the State from the discriminatory policies and purposes which the State operation of the school had come to embody.”
On appeal, the Third Circuit Court of Appeals unanimously affirmed (Commonwealth of Pennsylvania v Brown, 392 F2d 120, cert den 391 US 921). While agreeing with the District Court’s finding regarding “momentum”, the Court of Appeals went further in condemning the substitution of trustees. The court found Shelley v Kraemer (supra) to be applicable, and held that (p 125) State involvement was “the obvious net consequence of the displacement of the City Board by the Commonwealth’s agent and the filling of the Girard Trusteeships with persons selected by the Commonwealth and committed to upholding the letter of the will.” The court continued (p 125):
“Those radical changes pushed the College right back into its old and ugly unconstitutional position * * *
“We do not consider the move of the state court in disposing of the City Trustees and installing its own appointees to be a non obvious involvement of the State * * * The action in this instance and its motivation are to put it mildly, conspicuous. And what happened to Girard does ‘* * * significantly encourage and involve the State in private discriminations. ’ ”
Moreover, of the five Circuit Judges who heard the case, two concurred separately in the result, each specifically expressing the view that affirmance would be warranted [15]*15solely because the Orphans’ Court’s sua sponte substitution of trustees was itself unconstitutional State action (Kalodner, J., concurring, pp 125-127; Van Dusen, J., concurring, pp 127-128; see, also, Wachovia Bank & Trust Co. v Buchanan, 346 F Supp 665, 667-668, affd 487 F2d 1214, supra).
In the case at bar, we reach a similar conclusion. In doing so, however, we take care to note that we are not holding that the largely ministerial and neutral judicial acts of merely admitting to probate a will containing a discriminatory bequest, or of substituting one private trustee for another to administer a discriminatory testamentary trust, constitute State action for the purposes of the Fourteenth Amendment (see Gordon v Gordon, 332 Mass 197, cert den 349 US 947; United States Bank of Portland v Snodgrass, 202 Ore 530; Matter of Potter, 275 A2d 574, 580 [Del]). Nor do we hold that the act of a court in upholding the discriminatory provisions of a purely private trust against an outside challenge involves the State in unconstitutional discrimination (see, e.g., Lockwood v Killian, 172 Conn 496).
We hold only that, presented with an invidiously discriminatory charitable trust which could not be constitutionally performed, the Surrogate was precluded by the Fourteenth Amendment from actively intervening to reform the trust in a way that had the “immediate objective” and “ultimate effect” of enforcing its discriminatory provision (Reitman v Mulkey, 387 US 369, 373, supra; see Shelley v Kraemer, 334 US 1, supra; Barrows v Jackson, 346 US 249, supra; Commonwealth of Pennsylvania v Brown, 392 F2d 120, cert den 391 US 921, supra; Matter of Crichfield Trust, 177 NJ Super 258, supra). While the boundaries of unconstitutional State action may be imprecise, we are convinced that the Surrogate’s decree in this case fell well within their embrace.
We are, of course, aware of the holding of the Appellate Division, Third Department, in Matter of Wilson (87 AD2d 98), which involved a gender-restricted scholarship fund administered by a private trustee. According to the will which established the trust, the trustee was to select recipients on the basis of high school performance “as may [16]*16be certified to” by the superintendent of schools (p 99). When the school district refused to certify information to the trustee, the Appellate Division ordered that the bequest be reformed to provide that students seeking scholarships apply directly to the trustee.
Clearly, the reform ordered in Wilson (supra) had substantially less impact than the one made by the Surrogate at bar. In any event, to the extent that our holding today may be inconsistent with Wilson, we attribute it to a respectful disagreement with our sister court. We find ourselves persuaded, and indeed we are bound to hold as we do, by the constitutional principle that resort may not be had to our judiciary to actively intervene for the purpose of enforcing, promoting or supporting private invidious discrimination (see Shelley v Kraemer, supra; Barrows v Jackson, supra; Matter of Hoffman, 53 AD2d 55; Sweet Briar Inst. v Button, 280 F Supp 312).
Having concluded, then, that the decree here in issue was an unconstitutional exercise of State judicial power, we hold that the appropriate course is to delete the gender restriction. Significantly, the evidence suggests that such a reformation would be fully consistent with an important, if not the primary, intent of the testator.
In his bequest, Mr. Johnson did not specify qualifications, such as grade average, college entrance examination scores, or class standing, for scholarship recipients (cf. Matter of Wilson, supra). Instead, he required only that they be “bright and deserving”. The task of determining whether an applicant merited that description fell entirely upon the school district to which, as the record reveals, Mr. Johnson was so strongly devoted. It was plainly his intent to further the success of the district by enabling it to provide scholarship assistance to those graduates it felt to be needy, bright and deserving. It seems clear, therefore, that, contrary to the suggestion in the dissent, Mr. Johnson did not view the function of the school district as merely that of a conduit responsible only “to invest and dole out money for college scholarships”. Rather, the school district’s role under Mr. Johnson’s plan was central to the bequest, for it was the district, as it was the university under the earlier wills, that he judged to be in the best [17]*17position to select deserving recipients for his scholarships. Indeed, without input from the school district, the selection process would be substantially impaired (see Howard Sav. Inst. of Newark v Peep, 34 NJ 494, 505-509). It was undoubtedly this consideration that led the Surrogate to hold specifically that the private trustee could receive and consider recommendations from the district.
Moreover, there is no indication in the record that Mr. Johnson was of a misogynic bent. It is true that his scholarship bequests were written to benefit young men. Nevertheless, in his 1961 and 1974 wills, he provided that, if the Columbia scholarship fund became impractical to maintain, the corpus would be divided between the university and the district for scholarship purposes. Significantly, he attached no gender restriction to those alternate scholarship awards. Based upon these facts, we conclude that, contrary to the views expressed by the Surrogate and by the dissenters, it was at least equally important to Mr. Johnson that the school district carry out the significant and sensitive task of selecting scholarship recipients as that needy, bright and deserving young women be excluded as objects of his bounty.
Finally, we think it appropriate to address some of the observations and arguments advanced by the distinguished dissenters. Contrary to the fears expressed in the dissent, our holding today poses no threat to an individual’s general right to dispose of his property as he sees fit and to have his testamentary wishes respected by the courts. We have no quarrel with the dissenters’ strong advocacy of a person’s right to confer the benefits of his property to groups of his own choosing, and to exclude anyone from his bounty, be they men or women, blacks or whites, Jew or Gentile. And our holding does not limit that right except where State action is involved, for we deem it a matter of fundamental constitutional law that, when one makes a discriminatory disposition of his property, he must do so in a way that does not require the active assistance or substantial involvement of the State in the accomplishment of his purpose.
In this regard, we are somewhat at a loss to understand two arguments advanced by the dissenters addressed to the [18]*18issues at bar. They contend that “the mere naming of a public agency as the trustee of a testamentary trust by a settlor does not constitute State action since the public agency has done nothing”. They later suggest that “it would be proper to have [the school] serve as trustee of [a sex restricted] trust under appropriate circumstances”. In our view, the first argument is entirely irrelevant; the second is simply wrong.
When Mr. Johnson named the school district as trustee, he presumably intended that it act as such. The trust as created was unconstitutional, not because the name of the Croton-Harmon school district appeared in the will, but because the Fourteenth Amendment would not permit the district to perform the function called for in the bequest. Thus, when we say that the bequest was constitutionally infirm, we obviously mean, not that Mr. Johnson was somehow prohibited from writing the will as he did, but that his direction could not be honored consistent with the Fourteenth Amendment.
Moreover, we think that the dissenters’ suggestion that the school district could in fact act as trustee under certain circumstances is entirely devoid of merit. In the Girard case, for example, the Supreme Court had little difficulty in condemning as unconstitutional the board of trust’s serving as trustee, and in fact did so in three sentences: “The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment” (Pennsylvania v Board of Trusts, 353-US 230, 231, supra).
Indeed, even in Matter of Wilson (87 AD2d 98, supra), upon which the dissent relies, the Appellate Division, Third Department, noted that (p 101) any direction by the court that the school district supply the private trustee with information necessary for the award of gender-restricted scholarships “would raise serious questions as to the constitutional and statutory legality of such an order”. We think it settled, therefore, that the school district could not constitutionally serve as trustee under the bequest [19]*19here in issue, and it appears that no party to this proceeding has seriously contended otherwise. Thus, the dissenters’ repeated observation that the Surrogate was compelled to act because of the district’s “unwillingness or inability” to serve as trustee is somewhat mistaken. Whether the district was willing or unwilling to act is irrelevant. It was unable to act because it was constitutionally proscribed from doing so.
Additionally, in the case of a discriminatory trust like the one at' bar, the dissenters claim to see no difference between the substitution of one private trustee for another and the substitution of a private trustee for a public one. We think that the distinction is clear. In the first case, the trust as created can be performed without constitutional objection since purely private discrimination is not proscribed. The court’s act of substituting trustees is merely ministerial and constitutionally neutral. In the latter case, the Fourteenth Amendment prohibits the performance of the trust, as created, and the court’s act breathes life into a discriminatory provision which, because of State involvement, was invalid at its inception.
The belated and relatively recent societal and legal acknowledgment that women are entitled to equal protection of the law has led all members of this court to agree that the Fourteenth Amendment would be violated by the expenditure of public funds for gender-restricted educational scholarships. For the reasons previously stated, we think it settled beyond peradventure that the same constitutional strictures apply where, although the funds are private, they are bequeathed to a public agency which is made exclusively responsible both for distributing the funds and selecting the recipients. The dissenters’ sweeping policy statements notwithstanding, the question presented is a very narrow one, viz., whether the Surrogate, faced with a trust which could not be constitutionally performed, altered the bequest in a way that was constitutionally permissible. We hold that he did not, for the living document which is our Constitution, and our own sense of fundamental fairness, simply will not permit active court intervention to further and promote discrimination.
[20]*20For all of these reasons, therefore, we hold that the Surrogate’s intermediate decree should be reversed and that the Attorney-General’s petition to construe the will so as to delete the gender restriction should be granted.