Opinion of the Court, per HAIGHT, J. [Vol. 147. Alcock, 108 N. Y. 312; Holmes v. Mead, 52 id. 332; Prichard v. Thompson, 95 id. 76; Read v. Williams, 125 id. 560; Levy v. Levy, 33 id. 97.) As we have seen, the trust is that Powers will dispose of the property among "the charitable and benevolent institutions or corporations in the city of Rochester as he shall choose and such sums and proportions as he shall deem proper." Charity means one thing, benevolence quite another. Benevolence includes all acts or gifts prompted by good will or kind feelings, and may be entirely independent of any thought or intention of charity. The recipient or beneficiary may be well-to-do and in no need of charity. In England, under the law of charitable uses, bequests for charity have been sustained, whilst benevolent gifts without a designated beneficiary have been held to be too indefinite, and, therefore, void. (Norris v. Thomson's Exrs., 19 N. J. Eq. 307.) It is urged, however, that the word "benevolent" as used in this will is coupled with the word "charitable," and that the institution or institutions intended as beneficiaries must be both charitable and benevolent; in other words, that benevolent as here used was intended to mean charitable. This view, we think, we may properly adopt. Powers was then required to dispose of the property among the charitable institutions or corporations in the city of Rochester, either or both, or exercise his discretion in selecting from them. We think we may take judicial notice that in the prominent cities of our state there are numerous organized charities that are not incorporated as well as those that are incorporated. What are they? City hospitals, homes for the friendless, industrial schools, orphan asylums, aged female societies and children's homes, are common names in every city with which we are familiar. Again, we have charities connected with nearly every religious denomination and church. Many schools are supported by charity. Then come the social societies, the Masons, the Odd Fellows, the Knights of Pythias and numerous others, all incorporated and maintaining institutions of charity. Then there are the benevolent associations, the Ancient Order of United N. Y. Rep.] Opinion of the Court, per HAIGHT, J. Workmen, Supreme Tent of the Knights of the Maccabees of the World, the Benevolent and Protective Order of Elks and numerous others of like character, organized for the purpose of affording relief to a member or his family under certain contingencies, charitable in nature. Then, if we leave the list of corporations and enter the field of unincorporated institutions, we will find the King's Daughters, the Willing Workers and the sewing societies in nearly every circle and society. It will, thus, readily be seen that the including of all of the charitable institutions of a large city, both corporate and unincorporated, as the beneficiaries of the fund, was probably never contemplated or intended by the testatrix, and so including them would devolve duties upon the court which could only be discharged with the greatest difficulty, if capable of execution at all. The Special and General Terms appear to have considered the case of Power v. Cassidy (79 N. Y. 602) as controlling in the support of the trust. In that case the bequest was: "I give to my executors, to be divided by them among such Roman Catholic charities, institutions, schools or churches in the city of New York, as a majority of my executrix and executors shall decide, and in such proportion as they may think proper." It does not appear to us that the two cases are parallel, or that the decision in one should control the other. The beneficiaries in each case are limited in locality to a single city. In this respect only are the cases parallel. The Roman Catholic is a well-known religious denomination whose societies cover a goodly portion of the civilized part of the globe. The territory is divided into dioceses. It maintains churches, schools, institutions and charities in each diocese, which are under the control and management of a bishop. The Catholic charitable institutions, schools and churches in a city are, therefore, substantially under the charge and management of one man. They constitute a limited and welldefined class by themselves, as distinguished from all other religious or denominational societies, and are easily known and readily ascertained. It was upon this ground, and for this rea Opinion of the Court, per Haight, J. [Vol. 147. son, the bequest in that case was sustained. That case was considered to be upon the border line, and in sustaining the bequest the court felt that it was going to the extreme limit of the rule, and, on several occasions since, it has taken the opportunity to say that the rule would not be extended beyond the facts of that case. In the will under consideration very different facts are presented. There is no limitation by class or kind; the only limitation, as we have seen, is as to locality. Roman Catholic charities, institutions, schools, etc., are included with like institutions of every other denomination. Neither are the beneficiaries limited to religious denominations, for all kinds and classes of charities, religious or otherwise, are included. In the Levy case (supra) a testator devised a farm, together with the residue of his real and personal property, to the people of the United States, or such persons as Congress should appoint to receive it in trust for the purpose of establishing and maintaining on the farm so devised an agricultural school for the purpose of educating children of warrant officers of the United States navy, whose fathers were dead, as practical farmers; that if the United States refused to accept the bequest, he devised the same to the people of the state of Virginia for a like purpose, and if the legislature of Virginia declined to accept the trust he then gave it to certain Hebrew societies, naming them, in New York, Philadelphia and Richmond, with directions for them to carry out the trust for the benefit of the children of such societies who were between the ages of 12 and 16 years whose fathers were dead, etc. It was held that the bequest was too indefinite to be valid. WRIGHT, J., in delivering the opinion of the court, says with regard to the trust to the Hebrew societies: "It is so utterly vague and indefinite that it could not be executed in the English chancery without invoking its cy pres power, a power in case of charity, as has been held by this court, having no existence in the jurisprudence of this state." In Holmes v. Mead (supra) a certain parcel of land was devised to Mead and others to have and to hold the same dur N. Y. Rep.] Opinion of the Court, per HAIGHT, J. ing the lifetime of two persons, naming them, and the survivor of them, upon a trust that the same should be used as a place of public worship for the performance of religious offices according to the doctrine and discipline of the Protestant Episcopal church in the United States of America, and upon the death of the longest liver of the two persons named then to convey the same to any trustee who may be authorized by any act of the legislature of the state to take and hold such church and premises as a place of public worship, and in case no such act of the legislature is then in force, to convey the same to the rector, wardens and vestrymen of St. Mary's Church, Beachwood, if such church shall be incorporated under any act of the legislature, and if there be no such incorporation then the said premises to go to his heirs. $5,000 was also bequeathed to the trustees to be invested and the income thereof paid annually for the support of the rector for the time being of St. Mary's Church, or for the support of the clergyman of the Protestant Episcopal church employed as a missionary, or otherwise, and who shall officiate therein, with the principal and income to be paid and transferred or disposed of in like manner as the lot of land devised to the trustees is directed to be conveyed or disposed of. It was held that the trust was invalid and could not be executed. In Prichard v. Thompson (95 N. Y. 76) the testator bequeathed to his executors the sum of $150,000 upon the trust that they shall distribute and apply the same "to such charitable and educational uses and in such manner as shall be specified and directed in a codicil." He then declared that it was his purpose to prepare a codicil without unnecessary delay, and provided that in case a codicil should not be executed, that then the bequest was "upon trust to distribute the sum of $150,000 to and among such incorporated societies organized under the laws of the state of New York or the state of Maryland, having lawful authority to receive and hold funds upon permanent trust for charitable and educational uses as my said executors, the survivor, or survivors of them shall select for that purpose and in such several sums, Opinion of the Court, per HAIght, J. [Vol. 147. not exceeding in any case the amount that such incorporated body is empowered by law to take and hold upon the use aforesaid as they, my executors, the survivor or survivors of them, shall determine." He died without making a codicil. It was held that the gift was too indefinite to be capable of being executed by a judicial decree; that where a bequest embraces unknown beneficiaries to an unlimited extent so as to render it almost impossible to ascertain their number or character, it cannot be carried into effect. MILLER, J., in delivering the opinion of the court, speaking of the executors, says: "If they are unable, or for any reason fail to perform, it is difficult to see how a court of equity could enforce a performance. It could not well control their discretion or exercise the power conferred in their place and stead, or of the survivors or survivor of either of them. If they refuse to execute it, or the power remains unexecuted, it is not apparent how the court could make a selection, from the extensive range of societies referred to, of those that should receive the bequest, or of the proportion in which it should be divided. Neither could the court select individuals to perform a duty devolving upon the trustees, who are selected no doubt by reason of personal confidence in their judgment, and their capacity for the task imposed. Another difficulty presents itself as an obstacle in carrying out the trust in question. The beneficiaries referred to, consisting of every corporation within two states of the character named in the will, would be almost innumerable and none of them could claim that any specific portion of the bequest belonged to them. Until selected by the trustees they would have no such interest as would give them a standing to compel an enforcement of the bequest. It is a well-settled and established rule that, where a gift to a charitable use is so indefinite as to be incapable of being executed by a judicial decree, the representative of the donor must prevail over the charity." Again, he says: "Here no class is designated, and as we have already intimated, if a court of equity should be called upon, or assume to take upon itself the responsibility of carrying |