Tilden v. Green

7 N.Y.S. 382, 61 N.Y. Sup. Ct. 231, 27 N.Y. St. Rep. 420, 54 Hun 231, 1889 N.Y. Misc. LEXIS 1094

• Court: New York Supreme Court
• Decided: November 7, 1889
• Status: Published

Opinions

Van Brunt, P, J.

This action is brought for the construction of the will of Samuel J. Tilden, who died in August, 1886, leaving the said will, which had been executed in April, 1884. Mr. Tilden left him surviving, as his only next of kin and heirs at law, one sister, two nephews,—one of whom is the plaintiff in this action,—and four nieces. By his will, after naming the executors and trustees thereunder, and making provision for their compensation, and as to the manner of the exercise of the powers to be conferred upon them, and for the appointment of the successors of such of his trustees as should die, resign, or become incapacited to act, he provides by the eighth clause thereof as follows: “Eighth. My said executors and trustees are directed to constitute the trusts for specific persons hereinafter more particularly described and defined. My said executors and trustees shall be trustees of the special trusts by them so constituted, but the said trusts shall be distinct and separate from the general trust under this instrument. In their capacity of trustees of trusts for specific persons, they shall have power to manage the several trusts; to collect the income thereof, and to apply the same as herein directed; to sell, in their discretion, the securities, and to reinvest the proceeds thereof.” Ttie testator then, by the ninth, tenth, eleventh, twelfth, thirteenth; fourteenth, fifteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-sec- and, and twenty-third clauses, creates certain special trusts for the benefit of particular individuals therein named, each of which is separate and distinct, and each independent of the other, complete in itself, and created by a separate paragraph in the will. By the twenty-fifth clause the testator provides as follows: “Twenty-Fifth. I direct my executors and trustees, in case any special trust hereby directed to be constituted shall fail, in whole or in part, by depreciation of securities, to make the same good out of my general estate, so long as the general trust to my executors and trustees shall continue; and in case the said executors and trustees shall convey any portion of that estate to a corporation designated as the ‘ Tilden Trust,’ or shall vest the same in any trust or trusts for charitable purposes, to do so on the express condition that the said conveyance shall be subject to the obligations to make good the funds devoted to the said special trusts, and shall exact from the grantee, in every such case, an acknowledgment of such obligation, and agreement to fulfill the same. This provision is made subject to the condition that the corporation shall be duly authorized by law, by a special act or otherwise, to accept the grant, subject to the obligations herein directed to be imposed upon or assumed by the said corporation. I also direct my said executors and trustees to obey such instructions as I may hereafter give to them in respect to the allotment or selection of securities for the said special trusts, or any of them.” By the twenty-sixth clause he provides as follows: “Twenty-Sixth. I hereby authorize and direct my executors and trustees, during the continuance of the trust of my general estate, to apply any surplus income to or towards the several special trusts hereby directed to be constituted, in the same manner as they might apply the principal of my said estate to the said purposes.” By the twenty-seventh and twenty-eighth clauses he gives certain annuities. By the twenty-ninth clause he gives directions as to the management of the securities originally purchased for, or set apart for, the special trusts; and by the thirtieth clause he also gives an annuity. By the thirty-first clause he gives certain specific legacies. By the thirty-second clause he directs his executors and trustees to apply $10,000, or such part of it as may be necessary, according to such instructions as he might thereafter give to them from time to time, in writing or verbally. By the thirty-third clause he provides as follows: “Thirty-Third,. I authorize my executors and trustees to cause the establishment of a library and free reading-room in my native town of New Lebanon, in the manner following, that is to say: They shall obtain title to the land upon which the building stands which was erected by my brother, Henry A. Tilden, and which has been occupied by a school, buying in the mortgage on the same, amounting to about $15,000, and, if necessary, obtaining releases from the heirs of my brother, Henry A. Tilden, from my sister, Mary B. Pelton, or her heirs, and from Mrs. Lucy P. Tilden. They shall vest the title in a corporation, if a charter shall be granted on their application to the legislature, or a corporation can be formed under any general law. My said executors and trustees are hereby authorized to require, if needful, proper conveyances to be executed by the heirs of the said Henry A. Tilden, by Mary B. Pelton or her heirs, and by Lucy P. Tilden, as condition precedent to the payment of the legacies herein given to them, respectively. They shall also convey to the corporation, if one be created, any interest which I may have in the said premises. My executors and trustees are authorized to expend for the creation and equipment of, and to invest as a permanent fund to maintain, the said library and reading-room, the sum of $65,000, and any further sum, not exceeding $35,000, which I may in writing instruct my said executors and trustees to apply to those objects. They are also authorized to use the said building, and endowment hereby provided, in part for a school for the training of girls, if they find the same expedient, in connection with the free library and reading-room.” By the thirty-fourth clause he provides as follows: “Thirty-Fourth. I hereby authorize my said executors and trustees to appropriate out of my estate, in such manner as they may deem most expedient, the sum of $50,000 towards the establishment of a library and free reading-room in the city of Yonkers, and such further sum, not exceeding $50,000, as I may hereafter instruct my said executors and trustees to apply to that object. My said executors and trustees are requested to apply to the legislature for a special charter to enable them to carry out this provision, or to form a corporation under any general law, which in their judgment shall be most desirable. ” By the thirty-fifth clause he provides as follows: “Thirty-Fifth. I request my said executors and trustees to obtain, as speedy as possible, from the legislature, an act of incorporation of an institution to be known as the ‘ Tilden Trust,’ with capacity to establish and maintain a free library and reading-room in the city of New York, and to promote such scientific and educational objects as my said executors and trustees may more particularly designate. Such corporation shall have not less than five trustees, with power to fill vacancies in their number; and in case said institution shall be incorporated in a form and manner satisfactory to my said executors and trustees during the life-time of the survivor of the two lives in being, upon which the trust of my general estate herein created is limited, to-wit, the lives of Ruby S. Tilden and Susie Whittlesey, I hereby authorize my said executors and trustees to organize the said corporation, designate the first trustees thereof, and to convey to, or to apply to the use of, the same, the rest, residue, and remainder of all my real and personal estate not specifically disposed of by this instrument, or so much thereof as they may deem expedient; but subject, nevertheless, to the special trusts herein directed to be constituted for particular persons, and to the obligations to make and keep good the said special trusts, provided that the said corporation shall be authorized by law to assume such obligation. But in case such institution shall not be so incorporated during the life-titne of the survivors of the said Ruby S. Tilden and Susie Whittlesey, or if, for any cause or reason, my said executors and trustees shall deem it inexpedient to convey said rest, residue, and remainder, or any part thereof, or to apply the same, or any part thereof, to the said institution, I authorize my said executors and trustees to apply the rest, residue, and remainder of my property, real and personal, after making good the said special trusts herein directed to be constituted, or such portions thereof as they may not deem it expedient to apply to its use, to such charitable, educational, and scientific purposes as in the judgment of my said executors and trustees will render the said rest, residue, and remainder of my property most widely and substantially beneficial to the interests of mankind. ” And by the thirty-sixth clause he authorizes his executors and trustees to reserve any books which the testator might have from any disposition made by his will, and authorizes them to dispose of the same in such manner as in their judgment would have been most agreeable to him. By the thirty-seventh clause he provides as follows: “Thirty-Seventh. In case, at anytime during the trust embracing my general estate, any interest in any special trust hereby directed to be constituted shall lapse, or no disposition of such interest contained in this instrument shall be effectual to finally dispose of the same, such interest shall go to my said executors and trustees, to be disposed of under the provisions of this will; or if the said general trust shall have ceased, but a corporation designated as the ‘ Tilden Trust ’ shall be in operation, such interest shall go to the said corporation.” And by the thirty-ninth clause he devises all the rest, residue, and remainder of his estate as follows: “Thirty-Ninth. I hereby devise and bequeath to my said executors and trustees, and to their successors in the trust hereby created, and to the survivors and survivor of them, all the rest, residue, and remainder of all the property, real and personal, of whatever name or nature, and wheresoever situated, of which I maybe seised or possessed, or to which I may be entitled, at the time of my decease, which may remain after instituting the several trusts for the benefit of specific persons; and, after making provision for the specific bequests and objects as herein directed, to have and to hold the same unto my said executors and trustees, and to their successors in the trust hereby created, and the survivors and survivor of them, in trust, to possess, hold, manage, and take care of the same during a period not exceeding two lives in being; that is to say, the lives of my niece, Ruby S. Tilden, and my grandniece, Susie Whittlesey, and until the decease of the survivor of the said two persons; and, after deducting all necessary and proper expenses, to apply the same, and the proceeds thereof, to the objects and purposes mentioned in this my will.”

The questions presented upon this appeal arise in reference to the validity of the general .trust spoken of in the eighth clause of the will, and which is attempted to be established by the thirty-fifth clause above cited. In the consideration of this question it is of course necessary to bear in mind the cardinal principles which are to govern courts in the construction of a will, and they have been so repeatedly laid down that it is not necessary to cite authorities in their support, because they have become axioms. It is the duty of the court to give such a construction to the provisions of a will as will effectuate tlie general intent of the testator, as derived from an examination of the whole instrument, even though it maybe necessary to transpose words and phrases, or even to insert or leave out a provision, if it be necessary to do so in order to accomplish the clearly expressed intention of the testator. There is also another rule of construction, which provides that where two or more meanings are presented for consideration, one of which will hold a devise as void, and the other of which will enable the will of the testator to be operative, we ought not, without absolute necessity, to adopt the construction which necessitates the holding of the devise as void. And also, where several trusts are contained in the will, some of which are legal and others illegal, if they are so connected together as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion were held legal and other portions illegal, or if manifest injustice would result to the beneficiaries, or some of them, by holding one portion legal and the others illegal, then all the trusts must be considered together, and all must be held to be illegal, and must fall together. But where several trusts are created independent of each other, each complete in itself, and the legal can be separated from the illegal, and be upheld without doing injustice to or defeating what the testator might in the emergency be presumed to wish, the illegal trusts may be cut off, and the legal ones permitted to stand, and thus the intention of the testator be effectuated so far as the law will permit. Under the last rule of construction, the respondents claim that the latter part of the thirty-fifth clause may be cut off; and that the clause in said section referring to the corporation to be called the “Tilden Trust” is a separate, distinct, independent trust, which may be held valid although the other trust mentioned in the clause in question should be held to be invalid. And this is the main contention which has been presented by the briefs of counsel, and it is upon this ground that the learned judge below sustained the devise in question.

It is claimed that the provisions of the will in respect to which this controversy arises, either constitute a trust in the trustees to be executed for the benefit of the Tilden Trust, or it conferred upon said trustees a power in trust, or it was an executory devise; and the learned judge below held the provision in the will to be of the latter character, and that it was a devise similar to that which was. contained in the will under consideration in the case of Burrill v. Boardman, 43 N. Y. 259. In this we think the learned judge fell into an error, in overlooking the true nature of an executory devise under our statutes, and the difference between the provisions of the will in question and the one under consideration in Burrill v. Boardman. What was understood as an executory devise prior to our Bevised Statutes was, however, abolished by their adoption, and all distinctions between contingent remainders and executory devises were by them abolished; both coming under the definition of estates in expectancy. Estates in expectancy are divided into estates commencing at a future day, denominated “future estates, ” and reversions. A future estate is defined to be an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time. Future estates are further declared to be either vested or contingent. They are contingent while the person to whom, or the event upon which, they are limited to take effect, remains uncertain. And then we have the further provision that expectant estates are descendible, devisable, and alienable in the same manner as estates in possession. It is clear, therefore, in the case of all expectant estates, when the contingency arises upon which they are limited to take effect, that they vest by force of the instrument creating them. By an executory devise, therefore, or a gift in the nature of an executory devise, the expectant takes a vested right to the property; and this right cannot be defeated or diminished in any manner by any person. In other words, in the instrument creating the estate, the subject and object of the devise must be ascertained and certain. It is clear, upon a reading of the will of the testator, that it was not his intention to create any such estate. In the first place, the beneficiaries under the will take nothing by virtue of the provisions of the will itself. The estate is attempted to be vested in the trustees, (the evidence of which we will consider hereafter,) and it is by force of their action that the estate is to become vested in the beneficiaries. It is true that it is claimed, upon the part of the respondent, that the action of the trustees or executors under the will derives its validity from the powers conferred by the will, and that therefore it is to be deemed as the action of the testator; but an estate created under such conditions is provided for by another part of the Revised Statutes, and does not come within the definition of an expectant estate, as contained in the provisions of the statute to which reference has been had. In the case of Burrill v. Boardman it was held that, the moment the corporation came into being, the estate which had been devised to the executors in trust to be administered by this corporation upoii its formation vested in the corporation; that it required no action upon the part of the executors; and that it was entirely similar to the case of a devise to a person not in esse at the time of the death of the testator, but who should be brought into being within the time limited for the suspension of the power of the alienation of estates. The court say: “The limitation to the incorporated hospital being valid as a contingent ex-ecutory bequest, neither the appointment of the trustees nor their title was essential to the validity of the contingent limitation. The law would compel the application of the property to the purposes of the lawful bequest wherever it might be found,”—and cite with approval the proposition of Lord Chief Justice Wilmot, who says: “So, in this case, the testator does not declare his intention to give to a person not in esse, but is actually giving directions for the creation of that person; and there is no difference between the cases but that one is an executory trust for a natural person to be created, and the other is a political person to be created.” Attorney General v. Downing, Wilm. 16.

It is also claimed by the learned counsel for the respondent that the precise legal description of the disposition made in favor of the Tilden Trust is that it is an executory devise and bequest; and, after calling attention to the distinction between executory devises and contingent remainders as they existed before our Revised Statutes, he states that' the executory bequest and devise in the present case is made subject to two conditions: (1) That the corporate body described as the donee shall come into existence within the prescribed limits; (2) that the executors and trustees shall not deem it inexpedient to endow the institution. This statement assumes two things which do not exist, as we shall attempt presently to show, viz., that there is a donee who takes under the will, and that such donee takes by force of the will alone, unless the executors and trustees named in the will should deem it inexpedient that any such donee should take; in other words, that there is a donee named in the will who would take, upon coming into existence, without any action whatever upon the part of the executors and trustees. And the learned counsel further states that “this was declared to be the nature of a precisely similar gift in Burrill v. Boardman, 43 N. Y. 254. That was made subject to one only of the above conditions, viz., the first. But that involved the discretion of the persons named. The gift could not take effect unless the charter was a liberal one, and the discretion to judge of this would appear to have been lodged with the person named as trustee.” In what part of the devise this discretion appears to be lodged in the person named as trustee we have been unable to discover. ¡Nothing is said in the will about the trustee having any discretion, and the court expressly held that the trustee had no discretion, but that the estate devised vested in the corporation as soon as it came into being, and that neither the appointment of the trustees nor their title was essential to the validity of the contingent limitation; and the bequest was held, because of'these features, to be in the nature of a contingent executory bequest. Whether the charter of the corporation was such an one as entitled it to take in the case of Burrill v. Boardman, was clearly a question for the court to determine, and with which the executors under the will liad nothing to do. If it could take at all, it took the whole of the bequest. In the case at bar the Tilden Trust took nothing upon its incorporation. The appointment of the trustees was absolutely essential, and they were to convey to the corporation, if they deemed it expedient, and oijly so much of the trust-estate as they deemed expedient. Such is the express, plain, unequivocal language of the will. It seems, therefore, that the devise in question does not fulfill any of the conditions which pertain to an executory devise, as the portion of the estate which the Tilden Trust was to receive was uncertain; and it was further within the discretion of the executors to determine whether the Tilden Trust should benefit at all, or not, by the provisions of the will. It is not the case, therefore, of a vesting under the will, and a divesting by the exercise of the power of selection given to the executors by the will; on the contrary, if the executors do not act, nothing vests. There was therefore uncertainty, both in subject and in object, which is fatal to an executory devise. The provisions of the will in question, therefore, established a trust in the executors and trustees therein named, or conferred upon them a special power in trust; and it seems to be immaterial to the result which must necessarily follow whether it is to be construed as the one or the other.

It is evident, upon considering the provisions of the will, that it was not the intehtion of the testator to confer upon his executors and trustees a power in trust, because he devises to them the estate, and commits its control, care, and management to them, and impliedly he provides for the collection of the income of the whole estate by them,—of that which the trustees were to set apart as constituting the several special trusts, as well as the residue which might remain after the constituting of those trusts, the payment of the legacies provided for in the will, and the doing of the other things which were distinct and separate from the general trust mentioned in the eighth clause, and which he called in said clause the “general trust.” A very significant indication of this idea of the testator is contained in the twenty-sixth clause, where he authorizes and directs his executors and trustees, “during the continuance of the trust of my general estate, [evidently referring to that which he had mentioned in the sixth clause as the ‘ general trust,’] to apply any surplus income to or towards the several special trusts hereby directed to be constituted, in the same manner as they may apply the principal of my said estate to the same purpose. ” He therefore intended that the trustees should be invested with the ownership of the property which composed the residue of his estate until they should divest themselves of such ownership by, pursuant to the directions contained in the thirty-fifth clause, conveying and applying the same to the charitable uses therein mentioned, as they were, as already stated, to have the care and management thereof until such time; and they evidently were expected to collect the income, because there are directions as to the application of the surplus income arising therefrom prior to such application, which they could not control had they not the power of0collection. Therefore, as far as it was possible for the testator to signify the intention, he signified his intention that his executors and trustees should be vested with the title of this residue until they divested themselves of the title in carrying into effect the “general trust” which he spoke of in the eighth clause and in the twenty-sixth clause, and for the instituting of which he made provision in the thirty-fifth clause.

Using the words of Justice Weight in Levy v. Levy, N. Y. 107, “if there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust, without a certain beneficiary who can claim its enforcement, is void, whether good or bad, wise or unwise.” Therefore, if these provisions of the will are to be construed as a trust, and they are so indefinite as to be incapable of being executed by a judicial decree, they are bad. The same conclusion must follow if it is held that only a power was conferred upon the executors, although such a construction would be antagonistic to the plainly expressed intention of the testator. It is claimed upon the part of the respondent that, because a testator might give by his will a legacy to such person or persons as A. B. shall designate, therefore, conceding that there is no certain beneficiary who is entitled to claim the enforcement of the provisions o£ the thirty-fifth clause of the will in question, the gift is a valid one. It may be conceded that, if the gift had been in that form, it would have been perfectly valid. It would have been merely conferring a power upon the executors which they would have had the right to exercise or not at their own pleasure. The estate would have descended to the heirs and next of kin of the testator, subject to the execution of the power. It would have come under the definition of a general power, which is defined to be one which authorizes the alienation of lands embraced in the power to any alienee whatever. This, however, was not the power conferred upon the executors and trustees of Mr. Tilden by the terms of his will. By the terms of his will, Mr. Tilden directed his executors, or, if you please, empowered his executors, to dispose of the residue of his estate to a person or class of persons other than the grantee of the power. This, under our statutes, is defined to be a special power in trust; and if the trust which was created by the testator fall within the provisions of section 58,1 Rev. St. p. 729, and should be held to be valid as a power in trust, it is aspeeial power in trust as defined in the chapter of the Revised Statutes relating to powers. It is provided by section 96, l Rev. St. p. 734, that every trust power, unless its execution or non-execution is made expressly to depend upon the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity for the benefit of the parties interested. By section 97 it is provided that a trust power does not cease to be imperative where the grantee has the right to select any, and exclude others, of the persons designated as the objects of the trust. How, it is clear that whetjier a trust has devolved upon these executors, or simply a power, it is a trust or a power which they are bound to execute; and tl’at it was not intended that it should depend upon the will of the grantees of the power as to whether they would execute it or not. Therefore, in the contemplation of the statute, where a special power in trust is created, the same rule applies in reference to the beneficiaries of the power that applies to the case of the beneficiary of a trust, namely, that such beneficiary shall be so definite as that his rights may be enforced by a judicial decree, unless the execution of the power is made expressly to depend upon the will of the grantee, which is not claimed in the case at bar. If there was any doubt in regard to this proposition, reference to sections 100 and 101 of the same statute would seem to remove the same. Section 100 provides that if the trustee of a power with a' right of selection shall die, leaving the power not executed, its execution shall be decreed in equity for the benefit equally of all the persons designated as objects of the trust. And section 101 provides that where a power in trust is created by the will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve upon the court of chancery. Therefore, if this devise is to be construed as a special power in trust, it must be, both as to subject and object, of so definite a character that the court of chancery might execute it, should the trustees of the power fail to perform their duty. And hence, in laying down the rules which are to govern gifts to charitable uses in the adjudicated cases, no distinction, point, or question has been made as to whether such devises and bequests were trusts, or powers in trust, the same rules, in the respects stated, being applicable to both. The executors of Mr. Tilden are the trustees of a trust created in respect to the rest, residue, and remainder of his property mentioned in the will, or they are the grantees of a special power in trust in respect to such rest, residue, and remainder; and whether the executors be trustees of a trust, or grantees of a power, the gift under consideration being to a charitable use, to be held valid it must be sufficiently definite to be capable of enforcement by a judicial decree. Power v. Cassidy, 79 N. Y. 602; Prichard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 N. Y. 312, 16 N. E. Rep. 305.

The learned judge in the court below was of the opinion that the thirty-fifth article contained two distinct and separate alternative gifts, the first and primary gift being to" and for the benefit of the Tilden Trust, and the secondary and ulterior gift (in the event of the primary gift not taking effect) for such charitable, educational, and scientific purposes as in the judgment of the trustees would render the rest, residue, and remainder of the testator’s property most widely and substantially beneficial to the interests of mankind. Conceding that what he calls the “secondary and ulterior gift” would be void, he claims that it was the intention of the testator to make the Tilden Trust the primary object of his bounty with respect to the rest, residue, and remainder of his estate, and that it was separate from and independent of such void ulterior trust; and applying the principle that where the general intent of the testator may be sustained by cutting off a void trust which is separable from "other valid trusts, in a case where the trust which is valid is independent of the other dispositions of the will, and subordinate to them, and is not an essential part of the general scheme, he disposes of the question upon the theory that the last clause of the thirty-fifth section constitutes a trust, which is separable from that which is created by the first clause, that it is independent of it, and was not an essential part of the testator’s general scheme. The question presented under this view of the ease (namely, that the provision for the Tilden Trust is a separate and independent gift) is, therefore, does the gift under which the Tilden Trust claims, fulfill the conditions heretofore named? Let us turn for a moment to the devise as contained in the will. The testator, after requesting (which request, it is conceded, amounts to a command) his executors and trustees to obtain a charter for an institution to be known as the “Tilden Trust,” authorizes them, in case such institution should be incorporated in a form and manner satisfactory to them within the time limited by the will, to organize the corporation, designate the first trustees thereof, “and to convey to, or apply to the use of, the same, the rest, residue, and remainder of all my real and personal estate not specifically disposed of by this instrument, or so much thereof as they might deem expedient.” In other words, in case of the satisfactory incorporation of the Tilden Trust, he authorizes his executors and trustees to convey to, or apply to the use of, this corporation, so much of the rest, residue, and remainder of his property as they might deem expedient. This clause cannot be considered, as is claimed by the counsel for the respondent, to be a direction by the testator to his executors and trustees to endow this institution, unless they shall deem it inexpedient to do so, without a perversion of the whole tenor of the language of the clause, as it was the clear intention of the testator not to confer upon the Tilden Trust, even after incorporation, any power to claim anything from the hands of these executors and trustees as a matter of right. The whole power of the corporation to take, depended upon the approval by the executors and trustees of the form and manner of its incorporation, and upon their determination that it was expedient, in view of all the facts known to them, and of all the powers conferred upon them, to endow the corporation, the amount of such endowment being in their absolute discretion. Therefore, without action upon the part of the executors, the Tilden Trust could not possibly claim anything; and its power to claim an endowment is not taken away only, in case the trustees should determine that it was inexpedient to endow it, but its very power to take anything depends upon the affirmative judgment of the executors and trustees that it is expedient that it should be endowed with some amount, which must be determined by the trustees before it could be applied to the use of the corporation. Such being the condition of the power conferred, it was incapable of being executed by a judicial decree, because there were no parties interested under the power itself, and no fund set apart which, even had the party been definite, such party could claim. Whether there would ever be such parties or such funds depended entirely upon the affirmative action of the executors and trustees. Hence, if the executors or trustees, after all the conditions precedent had been fulfilled, had died, resigned, or become incapacitated from acting prior to the arrival of the time when they wouldebe entitled to act, considering the first clause of the paragraph by itself, no court could have decreed the execution of the trust or power, and the will of the testator would be absolutely defeated, his heirs and next of kin taking the estate contrary to his expressed intention,—a result which can never happen, as we have seen, in those cases where a valid trust, or power in trust, has been created. If the provisions of the will relating to this rest, residue, and remainder are to be deemed a trust, therefore, they are void; and, if they are to be deemed to confer simply a power in trust upon the executors and trustees, they are equally invalid for indefiniteness, unless the execution or non-execution of the power was made expressly to depend upon the will of the grantee of the power.

It is not claimed by anybody that it was the intention of the testator to make the execution or non-execution depend upon the will of his executors. The testator did not intend that, under any circumstances, his heirs or next of kin should get from his estate anything more than the provision which he had made for them therein. This is plainly evident from a reading of the will, and therefore he did not intend that such heirs or next of kin should receive any portion of the rest, residue, and remainder; neither did he intend that, under every circumstance, even if incorporated, the Tilden Trust should receive, as matter of right, the whole or any part of this rest, residue, and remainder, but he did intend that it should be devoted to some charitable use, —to the Tilden Trust if incorporated, and if his executors deemed it expedient, but in any event to some charitable use; and hence the last clause in the paragraph of the will under consideration: “But in case such institution shall not be so incorporated during the life-time of the survivor of the said Ruby S. Tilden and Susie Whittlesey, or if, for any cause or reason, my said executors and trustees shall deem it inexpedient to convey said rest, residue, and remainder, or any part thereof, or to apply the same, or any part thereof, to the said institution, I authorize my said executors and trustees to apply the rest, residue, and remainder of my property, real and personal, after making good the said special trusts herein directed to be constituted, or such portions thereof as they may not deem it expedient to apply to its use, to such charitable, educational, and scientific purposes as in the judgment of my said executors and trustees will render the said rest, residue, and remainder of my property most widely and substantially beneficial to the interests of mankind.” These considerations show, not only that the testator did not intend that the execution or non-execution of the power (if it is to be deemed a power) should depend upon the will of the grantee, but also how impossible it is to separate that part of the thirty-fifth clause relating to the Tilden Trust from the latter half of the paragraph, relating to the application of the rest, residue, and remainder to other charitable uses, without defeating the plain intention of the testator. The execution of the power (if it is a power) not expressly depending upon the will of the grantee, it is (even if the final clause of the thirty-fifth paragraph be cut off) so indefinite that it could not' be executed by a judicial decree, and it is invalid. The trustees have full discretion, both as to the legal entity to be called into being, and as to the application of the estate to its use, if called into being. This power or authority, thus conferred, could not be executed by judicial decree, because, unfortunately, there is no fund or estate which by the will must be given to any person or class.of persons. There is an estate which may be given, in whole or in part, to one possible institution, or which may be applied to indefinite “purposes.” Under the Revised Statutes, (section 99, p. 734, vol. 1,) there may be a power of selection and exclusion with regard to the designated objects of the testator’s bounty, and still the trust power does not cease to be imperative. But there both the fund and the designated objects are specific. The trustee of the power must distribute the entire fund between such designated objects, selecting and excluding as lie pleases, but exhausting the fund upon lawfully designated beneficiaries. A court of equity can and will enforce the performance of that duty; and the only variation in its execution, in case of the death of the grantee of the power, leaving the power unexecuted, is that the power of selection ceases, and equity decrees an equal distribution among the objects as prescribed by statute. How could a court of equity compel the performance of the duty here devolving upon these trustees ? How could*the court perform such duty, in case of the death of such trustees before they had had an opportunity to perform? The indefinite and uncrystallized “purposes” could not well file a bill. The corporate institution might, but it could not interplead the “purposes.” If it filed a bill alone, ihe answer would be, not that the trustees have a power of selection and exclusion with regard to a class made up of the corporation and the “purposes,” (which power they have, as far as they could, exercised in favor of the corporation;) but that, as to the corporation treated singly, they have an absolute discretion. This discretion is proved doubly, for it is contained—First, in the power to apply to the use of the corporation so much of the estate as the trustees may deem expedient; and, second, the further power to do something else with it, in whole or in part, if they deem it inexpedient to give it to the corporation, in whole or in part. As has already been suggested, what, it may be asked, would become of this residue if the executors had never qualified, or had died before the execution of the power? Could the supreme court take upon itself the exercise of this discretion,—decide whether the corporation was incorporated in manner and form satisfactory to the trustees, and whether it should take the whole, or only a part, and, if so, what part? It is plain that the discretion which is vested in these trustees cannot be controlled, and cannot be exercised, by any other person or court, and thus no duty has been imposed upon them, the performance of which can be compelí, d by a court of equity; and this is the test of the validity of such a power as a power in trust. The radical vice of the entire provision seems to have arisen from the testator’s unwillingness to confer any enforceable rights upon any qualified person or body. He seems to have had absolute confidence in his executors, but in no one else,—confidence (it is to be regretted) to the exclusion of that necessary definiteness for which educational or trust discretion cannot be substituted under our system of law.

It is no answer that the clause may be made definite by the action of the executors. The question must be determined as of the time of the death of the testator. A trustee cannot make that valid which is invalid; nor can he invalidate that which is valid. If the trust or power is valid, he can be compelled to execute it; if invalid, he stands, as to the property not disposed of by the will, as trustee for the heirs and next of kin, and an equitable interest is vested in them immediately upon the death of the testator, subject only to the payment of his debts and the expenses of administration. In the case of Holland v. Alcock it is said, where a trust is attempted to be created without any beneficiary entitled to demand its enforcement, the trustee would, if the trust property were in his possession, have the power to hold it to his own use, without accountability to any one, and contrary to the intention of the testator, but for the provision that in such a case a resulting trust attaches in favor of whoever would, but for the alleged trust, be entitled to the property. This equitable title cannot, on any sound principle, be made to depend upon the exercise by the trustee of an election whether he will or will not execute the alleged trust. In such a case there is no trust, in the sense in which the term is used in jurisprudence. “The existence of a valid trust, capable of enforcement, is consequently essential to enable one, claiming to hold as trustee, to withhold the property from the legal representatives of the alleged donor. A merely nominal trust, in the performance of which no ascertainable person has any interest, and which is to be performed or not as the person to whom the money is given thinks fit, has never been held to be sufficient for that purpose.” Therefore the circumstance that the Tilden Trust has been incorporated, and that the executors have attempted to convey to it the rest, residue, and remainder of the testator’s property, in no manner affects the question as to whether, at the death of Mr. Tilden, any trust was created, or any power in trust was conferred upon these executors and trustees, which authorized-them to withhold the property from the legal representatives of the alleged donor.

But it seems to us that it is impossible to hold that that portion of the thirty-fifth clause which relates to the Tilden Trust can be considered and construed separately from the balance of the paragraph. In the first place, an inspection of the will shows that'the testator has been particular to distinguish throughout between the special trusts and the general trusts. He has created these special trusts by separate and distinct paragraphs. He has by the eighth clause declared that such special trusts shall be distinct and separate from the general trust, under the will; the general trust evidently meaning the one single, undivided trust to charitable uses which is provided for by the thirty-fifth clause of the will. Again, by the twenty-sixth clause of the will, he speaks of the power of his trustees, during the continuance of the trust—not the “trusts,” but the “trust”—of his general estate, to apply any surplus income to or towards the several special trusts by the will directed to be constituted; showing, again, in language as significant as could be used, that the testator had in his mind a single devise in trust to charitable uses, and that he did not intend, or did not suppose, that there were various independent, separate devises to primary, secondary, or tertiary charitable uses, but that there was one devise and one trust for charitable uses, his executors having the power of selection. Undoubtedly, he desired bis executors to give the preference to the Tilden Trust; but that is as far as he went. Again, in the thirty-ninth clause, he speaks of the rest, residue, and remainder of his property, which forms the subject of the provisions contained in the thirty-fifth clause. He says: “I hereby devise and bequeath to my executors and trustees, and their successors in the trust hereby created, and to the survivors and survivor of them, all the rest, residue, and remainder of the property,” etc., “which may remain after instituting the several trusts for the benefit of specific persons, and after making provision for specific bequests and objects as herein directed, to have and to hold the same,” etc. If it had been the supposition of the testator that he had made a specific bequest to the Tilden Trust, by which, upon its satisfactory incorporation, it would have become-invested with the title to this rest, residue, and remainder, is it possible that he could have made use of any such language? In that case there would have been no rest, residue, and remainder which he could have devised to his trustees. He there makes a distinction, plain and pointed, between the devises to specific persons (and by the word “persons” he evidently meant to include corporations, for by the thirty-fourth clause he makes a specific devise to a corporation to be called into being, and which devise is to be taken out before the rest, residue, and remainder can be ascertained) and the trust created by the will,—in some places called the “general trust,”—which is to be carried into effect according to the provisions of the thirty-fifth clause of the will. Furthermore, it is evident that it was not the intention of the testator, as has already been stated, that the only charitable use to which his executors and trustees should have -the right to devote this property should be the Tilden Trust. It is conceded that, under the language of the will, the executors had the power to determine the amount in which, if any, the Tilden Trust should be endowed. How, what were the circumstances, under which the testator intended that his executors and trustees should come to a determination upon this question ? Was it that they were bound to convey the whole of the rest, residue, and remainder of his estate to the Tilden Trust, or permit his heirs and next of kin to receive it, who he had declared should not have any other portion of his estate than such as he had provided expressly in the will? Clearly not. That was not the question which was to determine the expediency of the endowment of the Tilden Trust. If such had been the intention of the testator, it is clear he would not have left anything in the discretion of his executors, but he would have devised the rest, residue, and remainder to this corporation when it should have been called into being, as was done in the case of Burrill v. Boardman, without the necessity of any intervention on the part of his executors and trustees. But he did not do this. He expressly confers the power upon his executors to withhold from the Tilden Trust, unless they deemed it expedient that it should receive. What was to be done with it in case they did withhold? What were the considerations which were to enter into the question of the expediency of withholding ? What the circumstances which were to enter into the consideration of the quantity or amount of the endowment; whether the Tilden Trust should receive the whole, or so much thereof as they might deem expedient? The testator intended that his executors and trustees, in determining this question, should have in mind the fact that if they withheld the whole, or any part, of this rest, residue, and remainder from the Tilden Trust, they could still carry out his intention to devote this rest, residue, and remainder to charitable uses by giving it to other charities. This was a circumstance which these executors and trustees had a right to have in mind, in determining the question whether or not they should endow the Tilden Trust with the whole, or any part, of the testator’s estate. It was not that, in case they did not endow the Tilden Trust, therefore the heirs and next of kin would get the property, which the testator did not intend; but it was that, if they did not give it to this charitable use, the testator empowered them to give it to others. And from the character of the will, and the character of the trusts in other respects reposed in the executors, it is to be assumed—it must necessarily be assumed—that these executors were the confidential friends of the testator, were acquainted with his wishes, and he had supreme reliance upon them that they would carry out his wishes to the fullest extent. How can it be said, in this condition of affairs, that the last clause of the thirty-fifth paragraph is independent of, and has no relation to, the first? By such a construction the trustees of this will are placed in an entirely different position from that which the testator intended. As already stated, he did not intend that his "executors should be compelled to choose between the Tilden Trust and his heirs and next of kin. But the declared and expressed intention, in language as strong and as pertinent as could be used, is that they shall choose bet wen the Tilden Trust and such other charitable, educational, and scientific purposes as in their judgment would render the rest, residue, and remainder of his property most widely and substantially beneficial to the interests of mankind. To further illustrate this view, it is only necessary to call attention to the fact that even after the corporation called the “Tilden Trust” is called into existence at the request of his executors and trustees, and they have approved of the manner and form of its incorporation, he yet does not require them to convey or apply anything to the use of this corporation.

It is admitted upon the part of the respondents that, for any cause happening subsequent to the incorporation, they would have had the right to refuse to endow the Tilden Trust; but they insist that such refusal must result from a reason not connected with the wisdom of this form of charity; that that matter the testator had .determined for himself. But where is to be found this limitation of their discretion we cannot conceive. Who is to call for the cause or reason ? To whose judgment are the executors to submit this cause or reason? To their own, and nobody else’s. And whether that cause or reason depends upon the form of the charity, or upon something which has occurred since the incorporation,—no matter what,—we see no limitation of the right of the trustees to determine whether they will or will not endow the Tilden Trust. It may be true that the testator intended that the Tilden Trust should have a preference in the matter of endowment, and that is undoubtedly the fact; but he is scrupulously careful to commit the whole question, notwithstanding his solicitude, into the hands of his executors, so that they had a right to refuse to convey, even after the incorporation of the institution in a form and manner satisfactory to themselves. This idea of separating these charities for the benefit of whom this general trust was instituted did not occur to the learned counsel who presented the ease of Prichard v. Thompson, nor to the court which decided that case. There was as broad an antithesis between the two classes of charities named in the will under consideration in that ease as there is between those mentioned in the said thirty-fifth clause, (if the Tilden Trust and the other charities there mentioned can possibly be construed as two classes of charities.) In the case cited, the devise was upon trust to distribute among such incorporated societies, organized under the laws of the state of Hew York or the state of Maryland, having authority to receive, etc. It was not dreamed that the provision for the charities in the state of Maryland could be cut off, and the validity of the devise determined, by construing the provision as though it were a trust to distribute among such incorporated societies, organized under the laws of the state of Hew York, as had authority to receive, etc. And it is plain why no such idea entered into the consideration of the case. The executors, if they had any power of selection at all, had the power to select among two classes, namely, societies incorporated under the laws of the state of Hew York, and societies incorporated under the laws of the state of Maryland. They were in form alternative gifts, but they were related to and dependent upon each other, and the will of the testator could not be carried into effect unless the trustees had the power of selection over the whole subject, including both classes. So, in the ease at bar, by the thirty-fifth paragraph the devise is to the executors to distribute to the Tilden Trust, or to such charitable, educational, and scientific purposes as in their judgment would render the rest, residue, and remainder most widely and substantially beneficial to the interests of mankind. That was what Mr. Tilden desired,—that the power which he conferred upon his executors should be exercised, they having in view the totality of the power given to them; and you can no more separate the Tilden Trust from the other charitable objects mentioned in the last clause than could be separated the Hew York from the Maryland corporations in the case of Prichard v. Thompson. In the cases cited to sustain the view that the latter portion of this trust might be cut off, and the first part remain, there were separate, distinct, independent schemes. In most of them a complete trust had been created during the time limited under our statutes, and after the completion of that trust there had been an attempt to extend the limitation beyond the provisions of the statute; and the courts have held that the first limitation is good, and the succeeding one bad. In one case, after having established a valid limitation, two alternative limitations were attempted to be established, dependent upon the condition of affairs, at the determination of the first estate. One of these alternative limitations was good, and the other was bad. They had no connection with each other. They could not exist at the same time. If one took effect, the other could not exist; and the court held that if, upon the determination of the first estate, the condition of affairs was such that the valid alternative limitation could take effect, it might go into operation notwithstanding the other alternative had been invalid from the moment of its creation, (Schettler v. Smith, 41 N. Y. 328,)— a case very different from the one at bar. In the case at bar there was but one .general trust, as the testator has plainly declared; and in the execution of that trust the duty has devolved upon his executors of selecting the beneficiary, giving to the Tilden Trust a preference; and that is all. We cannot see how, under the plain rules governing the construction of gifts to charitable uses, such a devise can be upheld. If it is, it must be by reversing the plain principles which seem to have governed devises of this description through all the adjudications, and in violation of what seems to be the plain provisions of the statute. It is undoubtedly a great misfortune that the intention of the testator to found a trust of the character mapped out by his will should be frustrated, and that the city of Hew York should not receive the advantages of the munificence by which it was intended that its people should be benefited; but this consideration ought not to cause the court to violate rules and statutes which have been adopted as best subserving the interests of the people, and thus unsettle principles which have obtained through a long course of decisions controlling the rights and interests of property.

Many other points have been raised by the counsel for both the appellants and respondents, but it is not thought necessary to consider them, in view of what we deem the vital points of the case. We are therefore of opinion that the judgment appealed from should be reversed, and a new trial ordered, with costs of all parties to be paid out of the fund.