Hardin, J.:
Bequest of $300 “to school district No. 1” of the town of Columbia is valid and must be upheld, and the executors should pay and satisfy the same according to the tenor of fhe will. (Chap. 555 of Laws of 1864, pp. 1225, 1226, §§ 15, 16, 17 and 18; chap. 318 of Laws of 1840; chap. 261 of Laws of 1841; Bells v. Betts, 4 Abb. N. C., 321.)
The language of the bequest clearly vests the school district with the right to the legacy, and then it declares that the same shall be forever loaned by the town officers mentioned in item sixth, and the interest thereon to be annually paid by such officers to the- trustees of said school district to be by them applied towards the support of the said school in said district.
The language found in item sixth thus referred to is, viz., “ officers of said town having charge of the financial matters of said town from time to time.” The financial officer of the town of Columbia referred to, seems to be the supervisor of the town; as that officer holds for one year, the testator used the language so as to include successive supervisors or “ officers ” who may, “ from time to time,” have charge of the financial matters of said town.
Payment may be made to a supervisor who, as trustee for the school district, should invest the sum and annually pay over the interest thereon to the school district. Section 15 of the act of 1864 expressly authorized a bequest “to any supervisor of a town” for support and benefit of common schools within such * * * town * * * “or any particular common school.”
If there was doubt as to the named trustee, then by section 16 of the act of 1864 the bequest could not be held void, but the “ title and trust would vest in the people of the State.”
But, we think, the supervisor was designated and authorized by the testator to invest the fund and pay over the income to the school [655]*655district, and that the executors should pay the same to such supervisor in accordance with the spirit and tenor of the testator’s will.
II. In the ninth clause of the testator’s will he gives “ all the rest and residue of my [his] estate, if any may remain, * * to James Mason, John F. Getman and A. II. El wood, trustees of Rich-held Springs Lodge No. 482, Free and Accepted Masons, as trustees of said lodge, and their successors in office as such trustees, to be by them as such trustees and their successors in said office of trustees, safely invested in real estate security or in government bonds, and apply the interest and income thereof for masonic, benevolent or charitable purposes, and for the relief of needy and worthy Masons or their widows and orphans.”
1. The three persons named in this provision of the will were elected trustees for said lodge, under chapter 317 of the Laws of 1866.
2. The statute authorizes them as trustees to take, hold and convey real and personal estate for charitable purposes of said lodge. (Sec. 1, chap. 317 of Laws of 1866.)
The fourth section of that act provides “the trustees of any such lodge or chapter, and their successors, shall be and are hereby authorized to take, hold and convey, by and under the direction of said lodge or chapter, and for the use and benefit thereof, all the temporalities and property belonging thereto, whether consisting of real or personal estate, and whether the same shall have been gi/oen, granted or devised directly to such lodge or chapter, or to any person or persons for their use or in trust for them or their benefit.”
The act is not very clear in its language. The words “ shall have teen given, granted or devised directly to such lodge or chapter, or to any person or persons for their use,” etc., may be construed to intend to, and to include any property which shall thereafter be given, granted or devised to such lodge or trustees in trust for it.
The title reads, viz.: “An act to enable Lodges and Chapters of Free and Accepted Masons to take and hold and convey real and personal estate.” This may be considered in giving the act construction. The eighth section declares, viz.: “ This act shall be deemed a public act, and be benignly construed in all courts and places to effectuate-the objects thereof.”
The legislative intent was to authorize the lodges in the name of [656]*656the trustees to take such gifts notwithstanding the general statutes against perpetuities. The statute of 1866 was a dispensation in favor of the particular corporations named therein. (Holmes v. Mead, 52 N. Y., 340; 2 R. S., 57, § 3; 1 id., 773, § 1.)
III. The bequest to the town of $1,000 is invalid. The words “ I give and bequeath to the town of Columbia in its corporate capacity, the sum,” etc., standing alone, would vest the right to the money in the town in its corporate capacity and give it an immediate and vested interest in the money. (Wetmore v. Parker, 52 N. Y., 450.) There would be no trust or attempt to create a trust, for indefinite and unknown cestui qui trusts. But the further language of the bequest provides that the money “ be forever invested by the town board or officers of said town, having charge of the financial matters of said town, from time to time.”
Here is an indefinite provision as to the trustee. Is the town board as such intended as a trustee, or is it intended that “ officers of said town having chai’ge of the financial matters of said town from time to time ” shall be the trustees. If we construe these latter words to mean the supervisor for the time being, then the query arises whether the trustee is the town board-or the supervisor.
But neither the town board or the supervisor is authorized by any statute to act as a trustee for the benefit of the poor of the town.
' The bequest does not name an absolute legatee, nor a definite authorized trustee. The beneficiaries are unascertained and uncertain.
So far as the provision attempts to keep the sum of money named, in the town board or the officers of the town beyond two lives in being at the death of the testator, it is in violation of the statute as to the accumulation of personal property. (1 R. S., 773.) Our attention is called to Kennedy Ex'rs. v. Town of Palmer (1 T. & C., 581) where a bequest to the town of Palmer in Massachusetts by a testator residing in this State was held valid, as it was governed by the laws of Massachusetts.
In that State it has been expressly adjudicated that it is not necessary to the validity of charitable bequests that there should be any definite or ascertained cestui qui trust designated, and that a trust like the one created in that case, is valid in Massachusetts. (See opinion of Doolittle, J., 1 T. & O., 58é, and cases of Bart-[657]*657let v. King, 12 Mass., 537, and Goring v. Emery, 16 Pick., 107; Webb v. Neal, 5 Allen, 575.)
The opinion of Judge Mullin (1 T. & C., 586) states that it was shown that the town of Palmer has the capacity to take the bequest by the laws of Massachusetts, and that, therefore, within the rule laid down in Chamberlain v. Chamberlain (43 N. Y., 424), that the validity of the bequest was to be determined by the laws of the domicile of the legatee, and not by the laws of the domicile of the testator.
We are referred to Coggeshall and
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Hardin, J.:
Bequest of $300 “to school district No. 1” of the town of Columbia is valid and must be upheld, and the executors should pay and satisfy the same according to the tenor of fhe will. (Chap. 555 of Laws of 1864, pp. 1225, 1226, §§ 15, 16, 17 and 18; chap. 318 of Laws of 1840; chap. 261 of Laws of 1841; Bells v. Betts, 4 Abb. N. C., 321.)
The language of the bequest clearly vests the school district with the right to the legacy, and then it declares that the same shall be forever loaned by the town officers mentioned in item sixth, and the interest thereon to be annually paid by such officers to the- trustees of said school district to be by them applied towards the support of the said school in said district.
The language found in item sixth thus referred to is, viz., “ officers of said town having charge of the financial matters of said town from time to time.” The financial officer of the town of Columbia referred to, seems to be the supervisor of the town; as that officer holds for one year, the testator used the language so as to include successive supervisors or “ officers ” who may, “ from time to time,” have charge of the financial matters of said town.
Payment may be made to a supervisor who, as trustee for the school district, should invest the sum and annually pay over the interest thereon to the school district. Section 15 of the act of 1864 expressly authorized a bequest “to any supervisor of a town” for support and benefit of common schools within such * * * town * * * “or any particular common school.”
If there was doubt as to the named trustee, then by section 16 of the act of 1864 the bequest could not be held void, but the “ title and trust would vest in the people of the State.”
But, we think, the supervisor was designated and authorized by the testator to invest the fund and pay over the income to the school [655]*655district, and that the executors should pay the same to such supervisor in accordance with the spirit and tenor of the testator’s will.
II. In the ninth clause of the testator’s will he gives “ all the rest and residue of my [his] estate, if any may remain, * * to James Mason, John F. Getman and A. II. El wood, trustees of Rich-held Springs Lodge No. 482, Free and Accepted Masons, as trustees of said lodge, and their successors in office as such trustees, to be by them as such trustees and their successors in said office of trustees, safely invested in real estate security or in government bonds, and apply the interest and income thereof for masonic, benevolent or charitable purposes, and for the relief of needy and worthy Masons or their widows and orphans.”
1. The three persons named in this provision of the will were elected trustees for said lodge, under chapter 317 of the Laws of 1866.
2. The statute authorizes them as trustees to take, hold and convey real and personal estate for charitable purposes of said lodge. (Sec. 1, chap. 317 of Laws of 1866.)
The fourth section of that act provides “the trustees of any such lodge or chapter, and their successors, shall be and are hereby authorized to take, hold and convey, by and under the direction of said lodge or chapter, and for the use and benefit thereof, all the temporalities and property belonging thereto, whether consisting of real or personal estate, and whether the same shall have been gi/oen, granted or devised directly to such lodge or chapter, or to any person or persons for their use or in trust for them or their benefit.”
The act is not very clear in its language. The words “ shall have teen given, granted or devised directly to such lodge or chapter, or to any person or persons for their use,” etc., may be construed to intend to, and to include any property which shall thereafter be given, granted or devised to such lodge or trustees in trust for it.
The title reads, viz.: “An act to enable Lodges and Chapters of Free and Accepted Masons to take and hold and convey real and personal estate.” This may be considered in giving the act construction. The eighth section declares, viz.: “ This act shall be deemed a public act, and be benignly construed in all courts and places to effectuate-the objects thereof.”
The legislative intent was to authorize the lodges in the name of [656]*656the trustees to take such gifts notwithstanding the general statutes against perpetuities. The statute of 1866 was a dispensation in favor of the particular corporations named therein. (Holmes v. Mead, 52 N. Y., 340; 2 R. S., 57, § 3; 1 id., 773, § 1.)
III. The bequest to the town of $1,000 is invalid. The words “ I give and bequeath to the town of Columbia in its corporate capacity, the sum,” etc., standing alone, would vest the right to the money in the town in its corporate capacity and give it an immediate and vested interest in the money. (Wetmore v. Parker, 52 N. Y., 450.) There would be no trust or attempt to create a trust, for indefinite and unknown cestui qui trusts. But the further language of the bequest provides that the money “ be forever invested by the town board or officers of said town, having charge of the financial matters of said town, from time to time.”
Here is an indefinite provision as to the trustee. Is the town board as such intended as a trustee, or is it intended that “ officers of said town having chai’ge of the financial matters of said town from time to time ” shall be the trustees. If we construe these latter words to mean the supervisor for the time being, then the query arises whether the trustee is the town board-or the supervisor.
But neither the town board or the supervisor is authorized by any statute to act as a trustee for the benefit of the poor of the town.
' The bequest does not name an absolute legatee, nor a definite authorized trustee. The beneficiaries are unascertained and uncertain.
So far as the provision attempts to keep the sum of money named, in the town board or the officers of the town beyond two lives in being at the death of the testator, it is in violation of the statute as to the accumulation of personal property. (1 R. S., 773.) Our attention is called to Kennedy Ex'rs. v. Town of Palmer (1 T. & C., 581) where a bequest to the town of Palmer in Massachusetts by a testator residing in this State was held valid, as it was governed by the laws of Massachusetts.
In that State it has been expressly adjudicated that it is not necessary to the validity of charitable bequests that there should be any definite or ascertained cestui qui trust designated, and that a trust like the one created in that case, is valid in Massachusetts. (See opinion of Doolittle, J., 1 T. & O., 58é, and cases of Bart-[657]*657let v. King, 12 Mass., 537, and Goring v. Emery, 16 Pick., 107; Webb v. Neal, 5 Allen, 575.)
The opinion of Judge Mullin (1 T. & C., 586) states that it was shown that the town of Palmer has the capacity to take the bequest by the laws of Massachusetts, and that, therefore, within the rule laid down in Chamberlain v. Chamberlain (43 N. Y., 424), that the validity of the bequest was to be determined by the laws of the domicile of the legatee, and not by the laws of the domicile of the testator.
We are referred to Coggeshall and others, Trustees v. Pelton (7 John. Ch., 291), which was decided in 1823. The bequest there was to the town of New Rochelle “ for the purpose of erecting a town house for transacting town business,” and it was held valid as a eha/ritable bequest. There had been an act of the legislature passed authorizing the plaintiffs, as trustees, to receive from the executors the bequest.
The correctness of that decision was questioned in King v. Woodhull (3 Eds. Ch., 92). The doctrine on which such cases rested was exploded by the Court of Appeals in Bascom v. Albertson (34 N. Y., 584), and the doctrine of that case was approved in 52 N. Y., 338.
In Wetmore v. Parker (52 N. Y., 450), it was held that a corporation created for charity may take, by bequest, and hold personal property limited by the testator to any of the corporate uses of the legatee. In the case in hand there is an attempt to vest in trustees, in perpetuity, the bequest, with directions to pay over forever the income to the town of Columbia, and that said “interest shall annually form a part of the poor fund of said town.”
It is thus brought within the condemnation of the statute against suspension of the absolute ownership of personal property beyond the lives of two persons in being at the death of the testator. In Adams v. Perry (43 N. Y., 488, opinion of Grover, J., in Low-ville Academy case), it was held that a bequest to trustees of personal estate, to invest and reinvest and pay over the income to an incorporated academy, forever, is void under the statute of perpetuities.
The bequest in the sixth clause of the will before us must be held invalid. The same is, therefore, payable to the next of kin of [658]*658the deceased. (Chamberlain v. Chamberlain, 43 N. Y., 439; Betts v. Betts, 4 Abb. N. C., supra.)
By section 1281 of the Code of Civil Procedure, the costs are in the discretion of the court.
Since the foregoing opinion was written attention has been called to the will of Alexander H. Buel, late of Fairfield, which contained provisions not unlike those in respect to the town of Columbia, in the will before us. That will was judicially examined and construed by the late Judge Gridlky, at a Special- Term, held in Herkimer county, in August, 1853, and it was adjudged by the court that “ the provisions as to said bequest, in favor of the poor of the town and the supervisor thereof, are void; and that the bequest to the town of Fairfield, whether said devise relates to real estate or not, and the trust relating to said devise and bequest to said town of Fairfield are wholly void.” (See judgment roll filed in Herkimer, January 10, 1854.)
Judgment should be entered (1) declaring the bequest to school district No. 1, of Columbia, of .$300, valid; (2) the bequest to Richfield Springs Lodge, No. 482, valid; (3) the bequest of $1,000 to the town of Columbia, invalid, (4) and that said $1,000 is payable to the next of kin of the testator, to wit, to Joseph Iseman, and that neither party recover costs as against the other. •
Smith, P. J., and Haight, J., concurred.
Judgment ordered (1) declaring the bequest to school district No. 1, of the town of Columbia, of $300, valid, and directing the payment thereof by the executors; (2) also declaring the bequest to the Richfield Springs Lodge of Free and Accepted Masons, No. 482, valid, and the payment thereof by the executors; and also (3) declaring the bequest of $1,000 to the town of Columbia, invalid; and (4) that said $1,000 is payable to Joseph Iseman, as the next of kin of the testator; and (5) that neither party recover costs as against the other.