and 88 New York State Reporter.

was accordingly so worded as to give to the plaintiffs, to the extent of their debt, the insurance money which represented and stood in place of the cows covered by the mortgage and burned. In other words, it was the insurance money on cows in which the plaintiffs had an interest as mortgagees, which money was to be given to them because, and to the extent, of their mortgage interest only. It turns out, however, that there is no such insurance money. There is insurance money on cows burned, but they are other cows, not in the mortgage, and in which the plaintiffs have no mortgage interest. cannot read the order so as to embrace this money without destroying all the qualifying words, and reducing it to an absolute order to pay the plaintiffs' claim generally from money received from insurance on Cows. This would be contrary to familiar rules of construction by which the whole document is to be read, giving effect so far as possible to all the words. The order is, in effect, the same as though it read, "Please pay Wilson & Eaton the insurance on cows burned covered by their chattel mortgage, to the extent of their mortgage interest." There being no insurance on such cows, it follows that there is no such fund as the parties contemplated.

The plaintiffs' complaint must be dismissed, and judgment rendered in favor of the defendants, the terms of which will be settled on notice. Ordered accordingly.

(33 App. Div. 485.)

ALLEN et al. v. STEVENS et al.

(Supreme Court, Appellate Division, Fourth Department. October 7, 1898.) 1. WILLS-CONSTRUCTION-CHARITABLE BEQUEST-DURATION.

One clause of a will gave the residue of testator's property to trustees to found a home for the aged, and authorized his executors to rent or sell any part of the real estate he owned at his death, and provided that, after they had executed their trust, they should convey to the trustees the residue of his property for the maintenance of the home referred to, and authorized the trustees to rent or sell any part of it, and an additional clause empowered his executors or the trustees to retain his interest in a certain bank, and continue the business at their discretion, but provided that it was not to be continued, nor any portion of his property held, longer than the lives of two persons named. Held, that testator intended to establish a permanent home for the aged, and not one for the lives only of the persons named in the additional clause. 2. CHARITIES-BENEFICIARIES-UNCERTAINTY-PERPETUITIES-POWER OF DIS

POSITION.

Laws 1893, c. 701, providing that gifts, grants, bequests, and devises "which shall be in other respects valid under the laws of the state," shall not be invalid if the beneficiaries are indefinite and uncertain, is expressly limited to the abrogation of the rule respecting indefiniteness, and does not change the rule of statutory limitation of the power to suspend alienation, or of the power of a testator leaving a wife, husband, child, or parent to give more than one-half of his estate to charitable corporations.

8. SAME.

Laws 1860, c. 360, limiting the power of a testator leaving a wife, husband, child, or parent to give more than one-half of his estate to charitable corporations, applies not only to corporations existing at his death, but to those created afterwards.

Ward, J., dissenting.

Appeal from special term, Onondaga county.

Action by Benjamin G. Allen and others, heirs and next of kin of Nathan F. Graves, deceased, against Sidney A. Stevens and others, to obtain a construction of his will. A judgment was entered on a decision of the specia! term (49 N. Y. Supp. 431) separately stating the facts found and the conclusions of law, and an appeal was taken by the heirs and next of kin, by the administrator of Catherine H. Graves, the widow of Nathan F. Graves, deceased, and by all her heirs and next of kin, from the whole of the judgment; by the executors and trustees of Nathan F. Graves, deceased, from that part of the judgment awarding additional allowances to attorneys other than to their own; and by the attorney general from that part of the judgment awarding additional allowances to attorneys other than his own. Reversed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

William G. Tracy, for plaintiffs.

C. Carskadden, for administrator, heirs, and next of kin of Catherine H. Graves, appellants.

George B. Cook, for executors and trustees of Nathan F. Graves, appellants and respondents.

Frank Hiscock, for the attorney general, appellant and respondent. George D. Chapman, for certain respondents.

M. E. Driscoll, for St. Joseph's Hospital, respondent.

Joseph W. Sutphen, for the General Synod, respondent.

Augustus C. Stevens, for executors, defendants and respondents.

FOLLETT, J. This action was begun in December, 1896, by the heirs and next of kin of Nathan F. Graves, deceased, to obtain a construction of his will. The testator died at Syracuse, N. Y., July 21, 1896, leaving a last will and testament, drawn by himself, and executed September 15, 1893, which was duly admitted to probate by the surrogate's court of the county of Onondaga, September 5, 1896. The testator left a widow, Catherine H. Graves, two brothers, and two nephews, the plaintiffs herein, his sole heirs and next of kin. August 15, 1896, Catherine H. Graves was duly adjudged to be a person incompetent to manage herself or her affairs, and Sidney B. Breese was appointed the committee of her person and estate, who answered in this action, admitting the allegation in the complaint, that part of the will was invalid. July 12, 1897, Catherine H. Graves died, and Sidney B. Breese, who had been her committee, was duly appointed the administrator of her estate with the will annexed, who, and all the heirs and next of kin of Catherine H. Graves, were subsequently made parties defendant herein, and answered. The testator left a will, which contains two clauses which are the subject of this litigation:

Tenth. I give, bequeath, and devise all the rest and residue of my property of every kind, personal and real, wherever situate, to my trustees heremafter named, for the purpose of founding, erecting, and maintaining Graves Home for the Aged, to be located in the city of Syracuse, in the state of New York. It is intended as a home for those who, by misfortune, have become incapable of providing for themselves, and those who have slender means of support, The institution to be known as the 'Graves Home. for the Aged.' I hereby appoint Charles E. Stevens, Rasselas A. Bonta, and Maurice A. Graves for the trustees to execute the above trust. I hereby authorize and empower my executors, or the survivor of them, to rent or

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sell any part or all of my real estate that I may own at the time of my death. They are authorized to employ a person or persohs to have charge of the real estate, to collect rents, & to make repairs, and to pay such sums for compensation as they may deem reasonable and proper. After my executors have executed their trust, and paid all the legatees provided for in this will, they are authorized and directed to convey to the said trustees above named the balance and remainder of my property of every kind, to be applied for the purposes above provided; and the said trustees or the survivor are authorized to rent or sell all or any part of my real or personal property, and to employ such agents as they may deem proper to take charge of the same, and pay them such compensation as they deem best. "Eleventh. My executors or my trustees are authorized to retain my stock and shares in the New York State Banking Company, and continue the business of banking for a term of years, at their discretion, but may sell the same, or any part thereof, at any time; but the same is not to be continued, nor any portion of my property held, longer than the lives of Catherine Graves Roby, daughter of Sidney B. Roby, of Rochester, and Helen Breese Graves, daughter of Maurice A. Graves, of Syracuse."

It is apparent on the face of the will that by the tenth clause the testator intended to establish a permanent home for the aged, and not one which should endure only during the lives of Catherine Graves Roby and Helen Breese Graves, the persons mentioned in the eleventh clause. If the limitation prescribed by the eleventh clause was intended to relate to property other than to the shares in the New York State Banking Company, the testator's purpose was that his executors should not hold any part of his estate in their executorial capacity beyond the duration of these lives, and at the termination of that period the estate should be converted, all the legacies paid, and the residue turned over to the trustees for the Graves Home for the Aged, to be administered thereafter perpetually for the benefit of that charity. Such being the just and natural construction of the testator's scheme, the result is that the power of alienation of the property attempted to be disposed of by the tenth clause is suspended for more than two lives in being.

Again, by the first clause of the will the dividends on the shares in the New York State Banking Company and the rents of the realty south of James street, in the city of Syracuse, were to be paid to the widow during her life; and, in case the limitation in the eleventh clause relates to all the testator's property, the power of alienation as to bank shares and realty south of James street might, under the terms of the will, be suspended during three lives in being at the death of the testator, which would render the disposition of that part of the estate invalid. Hawley v. James, 16 Wend. 59, 121; Tayloe v. Gould, 10 Barb. 388, 398; 4 Kent, Comm. 283. In case the testator had died before May 13, 1893, when chapter 701 of the Laws of 1893 took effect, leaving a will disposing of his residuary estate, as provided by the tenth clause, such disposition would have been invalid for the additional reason that the beneficiaries attempted to be provided for are so indefinite as to be unascertainable. Bascom v. Albertson, 34 N. Y. 584; Tilden v. Green, 130 N. Y. 29, 28 N. E. 880. Chapter 701 of the Laws of 1893 was passed for the purpose of abrogating the rule then existing that devises and bequests otherwise valid were invalid in case the beneficiaries were indefinite and uncertain. The statute arose out of the discussion following the de

cision of Tilden v. Green, supra, which case followed a long line of cases in this state. This statute does not change the rule existing in this state in respect to the limitation upon the power to suspend the alienation of property, or the limitation of the power of testators leaving a wife, husband, child, or parent to give more than one-half of their estate to benevolent, charitable, scientific, religious, or missionary associations or corporations. The statute expressly relates to gifts, grants, bequests, or devises "which shall in other respects be valid under the laws of this state." This language, it seems to me, expressly limits the scope of the statute to the abrogation of the rule in respect to indefiniteness. The scope of this statute has not been judicially determined in this state, but three learned text writers have construed it in harmony with the views above expressed. Chaplin, Exp. Trusts, § 514; Fowler, Charit. Uses, 106, 111; Thomas, Estates, 847, 852. By the tenth clause of the will the residuum of the estate, which constitutes the greater part of the entire estate, is to be held perpetually by the trustees named and those who shall succeed them in trust for the benefit of beneficiaries so indefinite as to be unascertainable. The eleventh clause of the will does not limit the duration of the Graves Home for the Aged during the lives of Catherine Graves Roby and of Helen Breese Graves, the clear intention of the testator being that the Graves Home should exist for an indefinite period, unlimited by time.

It is urged by the learned counsel for the respondent that the testator intended that there should be incorporated under the name of the 'Graves Home for the Aged' a corporation which should take the residuary estate for the purpose of carrying out the provisions of the tenth clause. No such intention was expressed in the will; but in case such an intention can be, by any stretch of construction, inferred, the case of the respondents is not greatly aided, for it is conceded that by the tenth and preceding clauses of the will more than one-half of the testator's estate is bequeathed and devised for benevolent and charitable purposes. It is urged, however, that chapter 360 of the Laws of 1860 places no limitation upon the power of testators to devise and bequeath more than half of their estates to charitable purposes unless given to charitable corporations. It is true that the statute limits the power of testators in such cases to give more than half of their estates to associations or corporations, but a construction of the statute that the limitation applied only to the power of testators to give more than half of their estates to corporations existing at the death of the testators, but that it imposes no limitation upon their power to give to corporations to be created after their death, would be a nullification of the statute; and so I conclude that if a testator leaving a husband, wife, child, or parent gives more than half of his entire estate to a benevolent corporation to be created after his death, the gift of more than one-half is invalid. In this case the testator's widow, through her committee, asserted in her answer that the disposition of more than one-half of his estate for charitable purposes was invalid, and demanded that one-half thereof be paid over to her.

Many other questions are discussed in the briefs of the counsel for the parties, but for the reasons stated I think the judgment should be

and 88 New York State Reporter.

reversed, and a new trial granted, with costs to the appellants who have appealed from the whole of the judgment to abide the event. All concur, except WARD, J., dissenting.

Appeal by the plaintiffs and by the defendants Sidney B. Breese, as administrator with the will annexed of Catherine H. Graves, deceased, and by Sidney A. Stevens and others, the heirs at law and next of kin of Catherine H. Graves, from a judgment of the supreme court entered in the clerk's office of Onondaga county on the 30th day of December, 1897, adjudging that certain bequests contained in the will of Nathan F. Graves for the founding and maintaining of Graves Home for the Aged, to be located in the city of Syracuse, in the state of New York, and other provisions of the said will, are valid; and also appeal from the costs and extra allowance of costs to the attorney general of the state and to the executors and trustees of Nathan F. Graves, deceased, and their attorneys; also, appeal of the said defendants Charles F. Stevens and others, as executors and trustees, from the allowance of costs to the attorney for the plaintiff of $2,000. and to the attorney general of an extra allowance of $1,800, embraced in the said judgment; also appeal of the said executors and trustees from so much of the said judgment as provides extra allowances of costs to other parties and attorneys in the action; also appeal by the attorney general from the extra allowances of costs to all the parties and attorneys in the action except himself. The action was brought by the plaintiff for the construction of the will of Nathan F. Graves, deceased, and judgment was rendered by the special term of Onondaga county, construing said will, and adjudging that the trust provisions contained therein were valid. The plaintiffs are the heirs at law and next of kin of the said Nathan F. Graves. The deceased left a widow, Catherine H. Graves, who, before the commencement of the action, was adjudged of unsound mind, and a committee was appointed over her property and person. She and her committee were made parties defendant. After the trial, and before the decision in the action, the said widow died, and Sidney B. Breese was duly appointed administrator of her estate, and he, as such administrator, and the heirs and next of kin of the widow, were substituted as defendants in the action in the place of the widow and her committee. There is no appeal from that portion of the judgment holding that the bequests contained in the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth clauses of the will are valid (except so far as limited and affected by chapter 360 of the Laws of 1860). The will was admitted to probate in the surrogate's court of Onondaga county on the 5th day of September, 1896, as a will valid to pass real and personal property, and duly recorded. The trustees under the will were also the executors named therein, but Rasselas A. Bonta duly renounced as executor, but did not renounce as trustee under the said will. A number of corporations and associations, charitable and religious, were made legatees under the will, and were parties to the action, and appeared and answered. The first clause of the will made provisions for the testator's wife, Catherine. Then followed eight clauses providing legacies for the corporations and charitable and religious institutions. The ninth clause gave legacies to relatives and friends of the deceased, and the tenth and eleventh clauses, being the remaining clauses of the will, are those upon which the controversy in this action arises, and will appear in the opinion. The testator died July 21, 1896, a resident of Syracuse, in this state. Other facts, and the questions raised upon the appeal, will appear in the opinion.

WARD, J. (dissenting). The testator, at the time of his death, in July, 1896, had reached the advanced age of 83 years. He never had any children, but left a widow, still older than himself, and two brothers, and two sons of deceased sisters, his heirs at law and next of kin, who are plaintiffs in this action. He left personal property of