Patterson, J.:
The appeal in this action is from a judgment of the Special Term, giving construction to the last will and testament of Stephen Whitney Phcenix,. deceased, and settling the accounts of the executors and trustees under that will.
The question wé are called upon to decide is whether Columbia College in the city of New York has the right and power to take, under the will, so much of the residuary estate of the testator as consists of certain real estate and the proceeds of other real estate realized by the executors and trustees, under the execution of a power of sale contained in the will. The action was brought by the executors and trustees of the will, who, being, in doubt as'to the Operative effect of its residuary clause, sought the aid and direction of the court and asked it to define and determine conflicting claims made, on the one hand, by the heirs and next of kin of the testator and the devisees and legatees of a sister of the testator, and, on the-other, by Columbia College. The controversy is limited to the real estáte, there being no dispute as to the right of the college to take the ■personal property under the provision for its. benefit made in the will.
Stephen Whitney Phoenix, the testator, died in November, 1881, leaving a last will and testament, with codicils thereto, and such will and codicils were duly admitted to probate by the surrogate-of New York on -the 28th of November, 1881. The right of Columbia College to take real estate under this will and its codicils is challenged [441] on the ground that at the time of the testator’s death, and when his will became operative, its power so to take was exhausted by reason of its holding and owning realty up to and beyond the limitations and restrictions contained in its charter or charters. The cause was tried before a referee who, in very learned and elaborate opinions, held that the college had the power to take the provision made for it by the testator, both as to the real estate passing under the will and the personal property, and from those opinions and the findings made by him it would appear that his decision rests upon three grounds, which may be stated as follows :
First- That under the terms of the will and in view of the intention of the testator gathered from such terms and from his purpose in making the gift to the college and from such considerations as legitimately may be resorted to to ascertain intention, that gift is to be considered as entirely one of personalty ; or, in other words, that to make the gift effective and to carry out the intention of the testator, the property will be regarded as having been equitably converted from realty into personalty.
Second. That the right of Columbia College to take, or to take and hold, real estate is determinable by the law as it existed in the Colony of New York at the time the original charter was granted to that institution of learning in the reign of King George II; that according to that law the Statutes of Mortmain of England furnish guides for the construction of that charter which in effect was a license in mortmain ; that the college was at that time entitled to take real estate to any amount, subject only to the condition that an excess beyond the amount authorized by the charter might be •taken away by the King or subsequently by the State, as the successor of the King ; that the charter with its legal incidents is a contract which cannot be impaired by legislation, and that the heirs at law of the testator, or those claiming under them, have no standing to wage a contest respecting this residuary estate or the proceeds of such real estate as has been sold by the executors and trustees under the power, of sale.
Third. That at the time of the death of the testator, and when his will became operative, Columbia College had not, in fact or in law, exhausted its power to take and hold real estate, or its proceeds, under the will of the testator.
[442] The provisions of the will and codicils thereto of Mr. Phoenix; so far as they are material to the presént discussion, may be summarized as follows:
After making specific bequests, he gives, devises and bequeaths all the rest, residue and remainder of his estate, real and personal, as follows : “ One equal undivided third "part thereof' to my executors and trustees hereinafter named, or the survivors or survivor of them, or their or his successors or successor, in trust to receive the rents, issues, profits,'income-and interest to accrue thereon, and to pay the same, after deducting all lawful charges incurred in upholding said estate, to my said sister Mary-Caroline Warren, wife of George Henry "Warren, in semi-annual payments, during the term of her natural life, and upon her death, or upon my death, should I survive my said sister, I give, devise and bequeath the principal of- said share to the Trustees of Columbia College in the City of New York, for the purpose of founding and maintaining one or more, Professorships in the Scientific Department of said College, now known as the School of Mines, or by whatsoever name the same may be hereafter called.” He then proceeds to, make a similar Specific disposition of another third part of the residuary estate, with the life beneficiary changed to his brother Phillips PhoBnix, and the third remaining equal Undivided third part he disposes of in "the same word's, with the exception that his brother Lloyd Phoenix is made the beneficiary for life. By the 9th clause he provides as follows: “ I authorize and empower my said executors and trustees and the survivors or survivor of them, of their or his successors or successor, at any time, to sell, mortgage, lease or convey any portion of my real estate, whether owned- by me severally or jointly"; to make exchange of all or any portion's thereof,, and to unitó im amicable partition thereof. Giving them full power, to make and execute all lawful deeds or other assurances in the premises. It is my wish that all real estate owned by me jointly with my sister and brothers, Or with other persons may be held in common so long as may be necessary to protect the interests of my estate -and the estates of my said -sister and brothers, and said Other persons, providing the same may lawfully be done.” He- then appoints executors and trustees'. Of the two codicils annexed to the will, the first has no pertinency at the present time. By the second, he makes a [443] specific disposition of a piece of real estate known as No. 176 Madison avenue, in the city of New York, with a stable and lot on Thirty-third street, adjoining the same, which he gives to his brothers Phillips and Lloyd Phoenix for their joint lives and to the survivor of them for his life, and upon the death of the survivor he devises the house and lot and stable to the trustees of Columbia College in the city of New York “to have and to hold the same to said Trustees of Columbia College forever, upon the same terms mid *conditions upon which the said Trustees shall have the one-third of ■my residuary estate, which, by the terms of my said will and codicils, at the same time, to wit, the death of said survivor, will come to the said College.” Then he proceeds to declare that the executors and trustees and their survivors, etc., “ shall have a discretionary power, and without personal risk to themselves, to postpone to such time as they or he may deem expedient, the conversion or getting in of any part of my residuary personal estate which shall consist of stocks, funds or securities of any description whatever; and that they or he may hold and retain the same for the purposes of the trusts in my said will created and declared, and for delivery of the same in kind to the Trustees of Columbia College at the determination of such trusts respectively, as provided by my said will.” Then the testator declares that “ in lieu of the founding and maintaining of Professorships in the Scientific Department of said College, known as the School of Mines, or by whatsoever name the same may be hereafter called, as in my said will provided; I do Will, order atid direct that my said residuary estate or the proceeds or avails thereof, as the same may from time to time come to the possession of the said The Trustees of the Columbia College in the City of New York, under the provisions of my said will and the codicils thereto, shall be employed in providing instruments, apparatus and material for the equipment and use of special laboratories for study, instruction and original research in Physics and Chemistry in the said College and in the publication of the results thereof.” He expresses a wish, without making it obligatory upon the trustees, that “ with said property ,” there should be equipped and maintained certain laboratories for scientific purposes and that “no part of the sandproperty or its income” shall be expended in the payment of salaries, and then expressly provides that “in the event that the income of said prop[444] erty in the possession of the Trustees of Columbia College or their successors, shall exceed the amount that can be judiciously expended for apparatus, instruments and material for use in such laboratories,, then, that the said Trustees of Columbia College employ such portion of the surplus, as they may deem proper, in the purchase of’ books and journals relating to Physics and Chemistry for the library of said College. And if a surplus shall still remain that the said Trustees of Columbia College may use the same in the erection of’ additional buildings to be occupied as laboratories; but only, under such circumstances, do I wish any portion of the said property to be-' expended upon buildings.” The testator then declares that it is his will that in case the provisions of this codicil, in respect to the gift to the trustees of Columbia College, shall fail by reason of any invalidity of the same, the original bequest mid devise to them, contained in the will, shall remain .and stand as though the codicil had not been made.
Upon a careful examination of the provisions of the will under consideration, we are not able to concur with the view of the learned referee, that Columbia College takes the residuary estate as personal. property. The inquiry is as to the intention of the testator. It is-the rule of law in this State that such intention must appear plainly, distinctly and unequivocally. (Scholle v. Scholle, 113 N. Y. 261 Clift v. Moses, 116 id. 144.) An intention to convert may be manifested in various ways: First, by a positive direction to the executors or trustees to make it; which is not this case, for there is no Command that a sale be made; second, the intention may be ascertained from the necessity of a sale, in order to carry out the general scheme. of a testator; which is also not this case, for the general scheme here is merely.the creation of life interests in undivided thirds, with remainders over to Columbia College upon the expiration of the particular estates.; and third, the property may be deemed tO' be equitably converted, when the purpose of the testator would fail without such conversion. In the present case there is nothing but a. discretionary power of sale. It is one of the class sometimes referred to as powers for administration to aid in the convenient settlement of. estates. The executors and trustees are authorized and empowered either to sell, mortgage or exchange all or any of the. real estate which the testator owned jointly or in severalty. In Phelps Execu[445] tor v. Pond (23 N. Y. 69) it is said that where a testator authorizes his executors to sell real estate and it is apparent from' the general provisions of the will that he intended the estate to be sold, the doctrine of equitable conversion applies, even if the power of sale is not mandatory. In that case it appeared that the will was incapable of execution, unless it were held that the property had been converted.
In Asche v. Asche (113 N. Y. 235) it is said that the necessity of a conversion to carry out the purpose of a testator will be deemed to be a positive direction to convert; but in Chamberlain, v. Taylor (105 N. Y. 194) it is remarked that an equitable conversion never will be presumed, unless it is required to carry out a lawful purpose expressed in the will of the testator. So, also, in Matter of Tatum (169 N. Y. 518) it is said that unless the purpose of the testator will fail without a conversion, equity will not presume it. If the property is to be deemed as equitably converted, it would become the duty of the executors or trustees to sell. In White v. Howard (46 N. Y. 162) it is said that in order to constitute the conversion of real estate into personal it must be the duty of, or obligatory upon, the trustees to sell it in any event. If an equitable conversion is operated here, the trustees of Columbia College would be ■entitled to receive the residuary estate as money; but it is evident from an examination of the terms and provisions of the will now before us that the testator intended that the college should receive that residuary éstate in the form in which it existed at the expiration of the beneficial interests of the life tenants respectively. This will was evidently prepared by a skilled draftsman. Looking at the instrument itself, and without reference to the 2d codicil, we find the intention of the testator clearly expressed that the remainder interests shall go to Columbia College in the manner suggested, for as to each of those interests the testator provides not only for a gift over after the death of his sister and each of his brothers, but specifically makes provision that in case of the death of either of them before he, the testator, dies, then the whole of the undivided -equal third part shall pass to the college as a direct gift, for the purpose of founding and maintaining professorships in the college. "With these provisions is associated, by a subsequent clause of the will, only the general power of sale for administration, above referred to.
[446] We do not find in the 2d codicil anything which requires us toad judge that the realty had been converted into personalty. It may be convenient for the college to receive the provision made for it in that form, but the, test is the intention of the testator. The learned! referee seems to be impressed, with the necessity of such a con. version,, because of the purpose to which the gift is to be applied, but it can be, so applied in the hands’ of the college, as -well ’as-through a sale made by the executors. In critically examining the. codicil, it is plain to us, that the testator intended that the residuary estate should, pass in the manner above indicated- By the 4th. clause of the Codicil there is a specific gift to the testator’s brothers, of .the Madison avenue property for life'; and on their death it is. devised to the. trustees of Columbia College to hold the same forever upon the same terms and conditions upon which the said trustees, shall have the one-third of the residuary estate, “ which by the terms, of my said will and codicils, at the same time, to wit, the death of said survi-vor, will come to the said College.” There is the plain indication that, notwithstanding the declared purpose to which the-residuary gift is to be applied by the, college,, real estate is to go to-it by devise for that express purpose, showing that it was not in the-mind of the testator that in order to effect his beneficent intention to the college it was necessary to convert his realty into personalty. Again, in declaring his change of purpose, from the founding of professorships to one providing for the. equipment of special .laboran tories in the'College, the testator orders and directs that his residuccry estate or the. proceeds or. avails, as the same may from time to time come to the possession of the sand trustees of Columbia College in the Gity of JYew York under the provisions of the will, shall be applied to the substituted or changed purpose. Here.is a provision, which contemplates that the residuary estate in kind shall pass to-the trustees, and in a subsequent part of the codicil he refers to the income of tho property in the possession oí the trustees of Columbia. College or their successors. The oth paragraph of the 2d codicil does not aid the contention that an equitable conversion of the real estate was intended by the testator. That paragraph merely refers to what is called “ the conversion or getting in ” of stocks,, funds-or securities constituting the residuary personal estate of the testator, and furnishes a protection to the trustees for not changing [447] the securities into such investments as the law requires or what are called court securities. Hor was the situation of the real estate of the testator such as wojild make it imperative that it be sold in order that the college might take the benefit intended for 'it by the testator.
Upon a fair construction of the will and the codicil we must reach the conclusion that not only is the intent to have the realty converted into personalty not clearly and unequivocably expressed,, but that it is plain that the testator intended that the college should take the residuary property as it should stand when the trust estates terminated.
We are not able to accept the conclusion of the learned referee / that the power of Columbia College to take real property under the will of Mr. Phoenix is to be determined exclusively by the law as it existed in the Colony of Hew York at the time the charter was granted in 1754 to the college. The right and power of the college in that regard are not derived only from the royal charter, but come from an enlarged and additional and new authority contained in the charter of 1810, granted by the State of Hew York. The referee’s proposition, if we apprehend it correctly, seems to be that every question of power is referable to that royal charter and the colonial law as it existed when that charter was granted; that it constitutes a contract made with the corporation, confirmed by the State Constitution of 1777 and all subsequent State Constitutions, the obligation of which, as a royal grant, made prior to October 13j 1775, cannot be impaired. Apparently, as the learned referee understands the law as it existed when the original charter was granted, the college had unlimited power to take real property, subject only to liability to forfeiture by the King of an excess in value of property so taken over and above the amount specified in the charter. A thorough and exhaustive argument has been made in support of that view by counsel for the college-and recourse has been had to all accessible sources of information to ascertain what the law of the colony which is assumed to have been the law of England, relating to the subject, was, but we are not convinced that the views of the referee should prevail. A grant or devise of realty would be effective either to pass title from the grantor or devisor, subject only to the right of the sovereign to enforce a forfeiture, or the limitation of the power con[448] tained in the charter would operate as a proviso, the effect of which would be to render a grant or devise in excess of that limitation void if the proviso has any efficacy at all. If the referee’s view is correct, it is to be sustained upon the theory that the Statutes of Mortmain were in force in the Colony of Hew York when the royal grant to King’s College Was made, but he seems to be of the opinion that those statutes were not in force at that time, and yet they have been applied as if they were. The appellant’s contention is that the law of the Colony of blew York applicable to this case was identical with, that of the State of blew York, as declared in Chamberlain v. Chamberlain, (43 N. Y. 424) and Matter of McGraw (111 id. 66). We do not regard it essential to the decision of this case that we should rule upon that contention, but if it Were necessary, we woidd strongly incline to the view that the prohibition upon, taking real estate beyond a certain amount, contained in the royal charter, made void the excess, and that the Statutes of Mortmain are not applicable.
We are aware that there are dicta of learned judges, to the effect that such statutes were operative in the State of blew York up to the time of the repealing act of February 27, 1788 (Chap. 46, § 37). Judge Weight remarks, in Yates v. Yates (9 Barb. 338), that there is positive evidence that the British Statutes of Mortmain were in force in the Colony of blew York, but that evidence is not referred to; and Judge Dube, in Ayres v. Methodist Church, etc. (3 Sandf. 368), states that there is certain evidence that the Statutes of Mort-main were in force prior to 1788, and refers to section 4 of chapter 18 of the Laws of 1784 as authority. That was an act to enable . religious denominations in this State to appoint trustees, who should be a body corporate, for the purpose of taking care of the temporalities of their respective congregations, and for other purposes; and by section 4 certain powers and authority are vested, in them, allowing them to take by gift, grant or devise, although “ such gift, grant or devise may not have strictly been agreeable to the rigid rules of law, or might, on strict construction, be defeated by the operation of the Statutes of Mortmain; ” which is not a legislative declaration that those statutes existed, but only an intimation that they may have existed.
Chancellor Kent says that the Statutes of Mortmain never had [449] effect in this country except in the State of Pennsylvania (Kent’s Comm. [3d ed.] 3.43), and Blackstone says that “ colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony.” (1 Black. Comm. 107.) Mr. Fowler, whose extensive and accurate learning on this and cognate subjects entitles him to be regarded as an authority, goes no further than to say in his book on Charitable Uses that it has been stated that the Mortmain Statutes had been operative in' this State. But it has been generally- understood that they were in force nowhere in the United States, except in Pennsylvania, although a mortmain policy, independent of the English statutes, has prevailed in many of the States. The view entertained in England is that the statutes did not extend to the colonies, not only referring to the act of George II (9 Geo. II, chap. 36) which it is admitted was not in force here, but to the whole series, from Magna Oharta (9 Henry III, chap. 36) through 7 Edward I (chap. 1); 34 Edward I (chap. 3); 15 Richard II (chap. 5); 23 Henry VIII (chap. 10); 7 and 8 William III (chap. 37) and down to the Georgian Statute, which is only an extension of the prior acts.
We are also aware that in Bogardus v. Trinity Church (4 Sandf. Ch. 758) the learned vice-chancellor held that the question as to the faking or holding of real estate by a corporation in excess of the annual value authorized by its charter, is one between the ■ corporation and the sovereign power, in which individuals have no concern, and of which they cannot avail themselves in any mode against the eorporation." But in the McGraw Case (supra) Judge Peokham, writing for the court, says that the observation of the vice-chancellor in the Bogardus case that only thé sovereign power would have the right to question the right or power of a corporation in taking land, was mere obiter dictum,- and that upon an examination of all the eases cited by the learned vice-chancellor facts were not presented which required a determination of that question, and we are constrained to take the same view of the vice-chancellor’s remark. The ■opinion of Robertson, Ch. J., in Lathrop v. Commercial Bank of Scioto (8 Dana, 114) is instructive and convincing as to the effect and operation, locally only, of the English Statutes of Mortmain, and his citations from the opinions of English judges as to those statútes mot extending to British colonies are very much in point.'
[450] ' It is, however, unnecessary to prolong this discussion or inquiry, for, as wé view this case, involving, as it does, only the particular question of the power of Columbia College to take under the will of Mr. Phcenix, we are not called upon to decide whether or not the Statutes of Mortmain applied in the Colony of Mew York, for, as previously remarked, the power to take under this will is not derived exclusively from the charter to King’s College. We may assume that under that charter the State alone could raise the question, but under subsequent charters the additional giant of power comes from the State, and, as we think, the power, its incidents and legal quality are to ; be determined by the law of the State as it existed when the charter giving the increased power was granted. If that is so, we see no reason why the rule laid down in the Me Gravy case does not apply to the charter granted by the State of Mew York in 1810. The effect of this view is to allow those contesting-in this action the power of Columbia College to take to maintain a controversy in this court.'
. It becomes appropriate at this "point to advert to the history of the chartered powers' of Columbia College to take and hold real estate and to refer to the various sources of that power as contained in legislative enactments and grants. All of such legislative enactments are enlargements of power and not restrictions. If it is said that the original royal charter constitutes a contract with the college which cannot' be impaired and that such contract includes, power to take and hold real estate, subject only to forfeiture by the sovéreign then the prohibition upon the impairment of the contract would apply only to the power acquired under that charter and not to the -additional power conferred by another charter, granted by the State, accepted' by the corporation, and to be construed and exercised in accordance with -the laws of the State. The additional grant of power thus made and' accepted was not made subject to the law existing when the original charter was granted, but subject to the law existing when the additional p.ower was bestowed.
In examining thé legislative enactments and the grants, both Colonial and State, made to what is now Columbia University, One cannot fail to be impressed-with the importance attached to that institution in the system of education in New York. As early as 1746 (Laws of 1746, chap. 840) an áct was passed entitled, “ An Act for [451] Raising the Sum of Two Thousand Two Hundred and Fifty Pounds by a Publick Lottery for this Colony for the Advancement of Learning & Towards the Founding a Colledge within the Same.” In 1748 and 1751 other acts were passed providing that money be raised by way of a lottery for erecting a college within the colony. In May,. 1754, a petition was presented (by certain persons mentioned in one of the enactments referred to) to the “ Lieutenant Governor and Commander in Chief of the Province of Hew York, and Territories thereon' depending in America,” in which it was represented that the Rector and Inhabitants of the City of Hew York in Communion of the Church of England, as by Law Established, had offered for the use of a seminary or college certain valuable lands on the west side of the Broadway in the west ward of the city of Hew York and were ready to convey the said land on certain conditions, and thereupon it was prayed that a charter of incorporation be granted to a college; and such charter was granted on October 31, 1754. That is the origin of the corporate existence of Columbia University. This charter provides that there shall be a body corporate and politic, called by the name of the Governors of the College of the Province of Hew York in the City of Hew York, in America, and among the powers granted by the charter are these, “ to purchase, take, hold, receive, enjoy and have any messuages, houses, lands, tenements and hereditaments and real estate whatsoever, in fee simple or for term of life or lives, or years, or in any other manner howsoever, for the use of the said college; provided always, the clear yearly value thereof do not exceed the sum of Two Thousand pounds sterling, and, also, goods, chattells, books, moneys, annuities, and all other things of what nature and kind soever.”
The college was also known as Kings College, and, by chapter 51 of the Laws of 1784, certain privileges were granted it by the State of Hew York and its name was changed to Columbia College. That act provided that all the rights, privileges and immunities theretofore vested in the college be vested in the Regents of the University, who were erected into a corporation and enabled to hold, possess and enjoy those rights, privileges and franchises which pertained to the college; but in 1787 an act (Chap. 82) was passed to institute a university within the State, and by it Were repealed the acts of 1784.