FOURTH DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. effect will be given to it by a cy-pres or proximate application notwithstanding that in ordinary cases the trust would be void for uncertainty or would result to the donor or his representatives." (Citing Adams Eq. *69.) The prerogative power exercised by the Crown was not engrafted upon our system as a part of our inheritance of English law and chancery jurisdiction. That power only exists in this country in the Legislatures of the several States. "The jurisdiction of the Court of Chancery in England in relation to charities was derived from three sources: "First. From its ordinary jurisdiction over trusts. * * * * This statute was embraced in the general repeal of English statutes in 1788, and * it is not in force here, and it seems equally clear that our courts are not endowed with any portion of the power which the Chancellor of England exercises by virtue of the royal prerogative. * It follows that the jurisdiction * * possessed by the courts of this State ever trusts for charitable purposes is limited to that which the Court of Chancery in England possessed independent of those two sources." (Owens v. Missionary Society of the M. E. Church, 14 N. Y. 387, 388.) Several cases had been decided in this State prior to the case of Williams v. Williams (supra) which seemed to hold a similar doctrine to that of the Williams case; but a case widely different in its facts (Bascom v. Albertson, 34 N. Y. 584) from that of Williams v. Williams, decided sixteen years later, assumed directly to overrule the case of Williams v. Williams in several respects, and held that the English system of charitable uses had no existence in this State and no place in our system of jurisprudence; that the authority prior to the statute of 43 Elizabeth was exercised by the English Court of Chancery in respect to pious and charitable uses, and as distinguished from other uses and trusts was not a part of its original and inherent judicial power as an equitable tribunal, but a branch of the jurisdiction it assumed to exercise in virtue of the royal prerogative and the cy pres powers with which the courts of this State have not been invested; that the design and effect of the repeal of the statute of Elizabeth and of the Mortmain Act of 9 George II, App. Div.] FOURTH DEPARTMENT, OCTOBER TERM, 1898. chapter 36, was to abrogate in this State the English law of indefinite charitable uses, and there is nothing to withdraw gifts to mere private trustees or indefinite charitable uses from the statute against perpetuities. This case was followed by a series of other cases in the Court of Appeals. (Prichard v. Thompson, 95 N. Y. 76; Holland v. Alcock, 108 id. 312; Cottman v. Grace, 112 id. 307; Fosdick v. Town of Hempstead, 125 id. 581; Tilden v. Green, 130 id. 29; and see Burrill v. Boardman, 43 id. 254; People v. Powers, 147 id. 104.) But in Bird v. Merklee (144 N. Y. 549) the court says, in speaking of Williams v. Williams (supra) and of the bequests therein mentioned: "It was there held that the provisions of the Revised Statutes against perpetuities do not affect the property given in perpetuity to religious or charitable institutions. While this case has been disapproved as to another bequest involving the existence of the English system of charitable uses in this State, its decision sustaining the bequest referred to has not only never been questioned, but has been expressly approved in subsequent cases in this court." (Citing Wetmore v. Parker, 52 N. Y. 457; Holland v. Alcock, 108 id. 337.) The rule established in Williams v. Williams, however, as to charitable trusts not being obnoxious to the Statute of Perpetuities, has received the sanction of the United States Supreme Court and of the courts of nearly every State in the Union outside of our own, although in those States similar statutes to our own against perpetuities are in force. (See 2 Perry Trusts [2d ed.], § 748, n. 1.) "Charitable trusts are not within the rule against perpetuities, nor are they affected by or within the scope of statutory or constitutional provisions against perpetuities in general." (5 Am. & Eng. Ency. of Law [2d ed.], 902, and notes 1, 2; Russell v. Allen, 107 U. S. 163; 3 Washb. Real Prop. [5th ed.] 555, and note.) The review I have made of the decisions of this and other States and of the English system in regard to charitable uses discloses the reasons and necessity for legislation in this State defining the law as to charitable trusts in order that they may be protected in the future and the charitable intention of donors sustained in behalf of that large class of people in our midst who are in need of all that charity can give them. FOURTH DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. The Legislature of 1893 was confronted with a confused condition of things with relation to the laws of charitable trusts, nearly equal to that which disturbed the serenity of Lord Bacon, who, in the year before the adoption of the statute of 43 Elizabeth, in a lecture on the Statute of Uses before the Society of Gray's Inn, exclaimed: "I have chosen to read upon the statute of uses made 27 H. VIII, ch. 10, a law whereupon the inheritances of this Realm are tossed at this day like a ship upon the sea in such sort that it is hard to say which bark will sink and which will get to the haven; that is to say, what assurances will stand good, and what will not. Neither is there any lack or default in the pilots, the grave and learned judges; but the tides and currents of received errors and unwarranted and abusive experience have been so strong, as they were not able to keep a right course according to the law." It is a curious fact that in nearly all the cases that have passed upon charitable trusts in this State since the decision in Williams v. Williams the trust has been declared invalid either for the want of a legal trustee to take the title or a legal beneficiary to claim the equitable interests. Mainly, the trust has been declared void for the want of a legal beneficiary. The cases cited and many others might be referred to, to establish this statement. What a picture do these cases present of disappointed expectations; of hope deferred; of suffering and want in those who could have been benefited and relieved by the noble charities that those cases disclose. The donors of these charitable gifts have gone to their graves in the wrong belief that they had done something for the benefit of their fellowmen. This condition amounts to an “evil” and "reproach." (Fairchild v. Edson, 154 N. Y. 212.) A learned author has well said: "It is always hoped where funds are given in trust, the income to be applied to some church, almshouse, hospital or school, that such institution will exist indefinitely, and that the donor's bounty will be a perennial spring for generations.” (Perry on Trusts, § 737.) As has been said, the appellants assail the charity instituted by the testator as void, being in conflict with the Statute of Perpetuities. Their argument assumes that the scheme of the testator contemplates a permanent home for the beneficiaries at Syracuse. It is to extend beyond two lives in being at the death of the testator and App. Div.] FOURTH DEPARTMENT, OCTOBER TERM, 1898. be a permanent institution. Assuming that such will be the situation, the inquiry confronts us whether the trust can be sustained. All parties to this controversy concede that, under the decisions of our highest courts, this trust would have been invalid prior to the passage of the remedial statute (Chap. 701, Laws of 1893). The appellants contend that the statute only relieves a part of the difficulty which existed before its passage, viz., the indefiniteness and uncertainty of the beneficiary; and that all other objects remain as before, and the trust is still obnoxious to the statute against perpetuities; and that the objection that the trustees are not a corporation which can legally assume the trust, and that there is no provision in the will for the creation of such a corporation during the two lives in being, is still available. As I understand the decisions, the law had become finally settled in this State that in order to avoid the Statute of Perpetuities the trustees must be either a corporation that had power to take the property bequeathed or devised as trustees, or there must be a provision in the will for the creation of such a corporation within the period of two lives in being, and that that must be accomplished. It seems to us that this argument of the appellants takes too narrow a view of the act of 1893. That act goes further than to remedy the difficulty as to beneficiaries. It creates a complete system. It provides not only for the protection of the beneficiaries, though unnamed and only designated as a class, but it provides for a trustee, in all cases, that is competent to take. If the will specifies the trustees by name, whether individuals or corporations, the act vests the legal title to the property of the trust in such trustees and indicates a purpose to clothe them with the power to take and hold trust property to carry out the purposes of the testator. This is a new feature in the law of charities. Trustees in equity and the legal title are both united in the trustees named in the will. This, however, does not create a merger of the equitable estate in the legal, which never occurs where the intention is otherwise. (1 Perry Trusts [2d ed.], § 347, and n. 3.) The statute goes further and provides that if no trustee is named, the trust shall vest in the Supreme Court; hence the objection so often raised to defeat the charitable intentions of donors, that the cestui que trust is not definitely ascertained, or the trustee not named, or if named is not competent to act, cannot prevail in FOURTH DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. the case at bar, as the remedial statute has provided for both difficulties so that we have in this case beneficiaries competent to take and trustees competent to hold under this statute. To make the situation clear beyond controversy the 2d section of the act provides that the Supreme Court shall control the gift and the Attorney-General of the State shall enforce the trust by a proper proceeding in court. The Supreme Court thus assumes one of the highest functions of the English Chancery Court. It takes control of the rights of the beneficiaries. It becomes the guardian of their welfare, and it supplies a trustee when one is lacking. There is no force in the argument that the Supreme Court has no jurisdiction in a case where a trustee has been named by the donor, and that it can only act where no trustee has been appointed. This view is too narrow. It is apparent that the Legislature intended to clothe the trustees appointed by the donor with the title. The trustee was given the legal title so as to obviate the objection that the title was in abeyance, and, therefore, the bequest void; and when in the exigencies of human affairs the trustee named by the donor had died or ceased to act, the court then assumed the function of trustee, and in doing so only carried out the equitable rule that where a valid trust was created, equity would not permit the trust to fail for want of a trustee, but the court would appoint one. (1 Perry Trusts [2d ed.], § 38; 5 Am. & Eng. Ency. of Law [2d ed.], 920, and notes.) It would be doing violence to the legislative intelligence, as well as its intention, to suppose that the Legislature did not intend the result that must necessarily flow from the new system it had created. The old objections to charitable trusts, so far as concerned the objects of the trust and the agency to execute it, as well as the law of perpetuities and the disastrous results which had followed, was before it. It had witnessed the spectre of the Statute of Perpetuities rising up and overthrowing many cases. The Legislature well knew that the permanence of trusts of a charitable nature was an indispensible element in their success. We are of opinion that the statute has placed the trust recognized by it beyond the reach of the law against perpetuities, and necessarily so. The experience of the people of this State with charitable institutions had created no cause for the alarm which was felt in England |