testifies that he wrote several letters of rejection, shortly after the alleged delivery, with the statement that the goods were held at defendant's risk and subject to his order. I think this was sufficient evidence of an offer to return the goods. Stone v. Frost, 6 Lans. 440, affirmed 61 N. Y. 614.

It is further contended that plaintiff elected to retain part of the goods, and therefore cannot recover damages for the part retained. This is not the theory of the plaintiff. It must be borne in mind that the plaintiff does not attempt to rescind the contract in toto, as he has accepted a large number of the chattels, and he sues for a breach in that a part of them, which he contends he rejected, do not conform to the requirements thereof. The partial acceptance by the vendee does not excuse the vendor for the nonfulfillment of his contract as to the chattels in dispute, but he may be held liable in damages therefor. Kipp Kipp v. Meyer, 5 Hun, 111; Sorg Co. v. Crouse, 88 Hun, 246, 250, 34 N. Y. Supp. 741; Manning v. Humphreys, 3 E. D. Smith, 218; McKnight v. Devlin, 52 N. Y. 399, 11 Am. Rep. 715. I do not read Mason v. Smith, 130 N. Y. 474, 29 N. E. 749, cited by the learned counsel for the respondent, as opposed to this doctrine. That was an action for the contract price by the seller, wherein a part of the goods had been returned, and the court, referring to the rest of the goods, say: "If the defendants had not desired to keep the other goods, they should have then rescinded the contract, and either returned or offered to return them, and in failing to do this they must be deemed to have elected to retain them under the contract."

The plaintiff pleads, and the defendant admits, that he has paid the consideration for the contract. And there is evidence which justified the court in the conclusion that the sums set opposite the items were the contract prices agreed upon between the parties. I think, therefore, that the court was justified in fixing the damage at this sum. Ideal Wrench Company v. Garvin Machine Company, 65 App. Div. 235, 72 N. Y. Supp. 662, and authorities cited.

The judgment should be affirmed, with costs. All concur.

(41 Misc. Rep. 299.)

and 118 New York State Reporter

In re DANIELS' ESTATE.

(Surrogate's Court, Madison County. August, 1903.)

1. WILL-BEQUEST IN TRUST.

A bequest to a religious society, incorporated under Rev. Laws 1813, p. 212, c. 60, of money, in trust, to be invested, and the income applied to keeping the church and parsonage in repair, is an immediate and absolute gift, not affected by the words "in trust."

In the matter of the estate of Lucy C. Daniels, deceased. Decree on settlement of administrator's account.

The thirty-first and thirty-second subdivisions of the will of the testatrix read as follows:

"I bequeath Fifteen Hundred Dollars to the First Methodist Episcopal Church of Hamilton in the Village of Earlville, in trust, to be kept invested and the income thereof to be applied in repairing its Church edifice and parsonage.

"I bequeath Six Hundred Dollars to the First Baptist Church of Sherburne, commonly known as the Earlville Baptist Church, in trust, to be kept invested and the income thereof to be applied in keeping the Church edifice and grounds in repair."

S. B. Cloyes, for administrators.

M. H. Kiley, special guardian, for infant residuary legatees.

SMITH, S. The societies, legatees, were incorporated under chapter 60, p. 212, Rev. Laws 1813, which law authorizes them to receive and hold real and personal property. Section 4 of the act provides as follows:

"The trustees of every church, congregation or society, herein above mentioned, and their successors, are hereby authorized and empowered to take in to their possession and custody all the temporalities belonging to such church, congregation or society, whether the same consist of real or personal estate, and whether the same shall have been given, granted or devised directly to such church, congregation or society, or to any other person for their use *

estate

pious uses."

* and also to purchase and hold other real and personal for the use of such church, congregation or society, or other

A religious corporation, therefore, is authorized by this statute to take possession of personal property that has been given, granted, or devised directly to it or to any other person for its use, and to hold the same for its use, or to other pious uses. Tabernacle Church v. Fifth Avenue Church, 60 App. Div. 327, 70 N. Y. Supp. 181, and cases there cited; First Presbyterian Church v. McKallor, 35 App. Div. 98, 54 N. Y. Supp. 740.

In the case of Williams v. Williams, 8 N. Y. 526, it was held that, the object of this class of corporations being to perpetuate the uses of the property acquired by them, it necessarily follows that it is legal for a donor to prescribe, by way of limitation or condition, that his particular gift shall be kept and preserved so as to subserve the purposes which the corporation was created to promote, and that it shall not be wasted, alienated, or otherwise misappropriated. In other words, it is simply declaring that the property

shall be devoted to the object which the Legislature had in view in providing for the corporate existence of the donee; and hence the court held that a just construction of the statute respecting religious corporations authorizes them to hold property granted to them with a provision requiring the income to be permanently devoted to its uses, and forbidding the diversion of the principal from the proper object of the society.

Repairing the church edifice and parsonage and keeping the church grounds in repair are within the powers and duties of a religious corporation. Matter of Estate of Williams, 1 Misc. Rep. 444, 23 N. Y. Supp. 150; First Presbyterian Church v. McKallor, supra.

The subject of charitable bequests and devises has frequently been before the courts for adjudication, and the general principles applicable to them are settled; and while the decision in the case of Williams v. Williams as to another bequest, involving the existence of the English system of charitable uses in this state, has been disapproved and has been regarded as overruled, the decision sustaining the bequest to the Huntington Church (a religious corporation) has not only never been questioned, but has been expressly approved, in subsequent cases in that court. Wetmore v. Parker, 52 N. Y. 450, and cases there cited. In this case it is held that corporation created for charity may take and hold personal property limited by the donor to any of the corporate uses of the donee, and a direction of the donor that the principal shall be kept inviolate, and the income only expended, will not invalidate the gift, provided, of course, that the same is immediate and vested. The question relates to the capacity of the corporation, and the law of perpetuity has nothing to do with it.

If the societies have the power to take the funds for the purposes specified in the will, the statute against perpetuities will not apply. Adams v. Perry, 43 N. Y. 487-500; Cottman v. Grace, 112 N. Ý. 299-307, 19 N. E. 839, 3 L. R. A. 145; First Presbyterian Church v. McKallor, supra. Such gifts are valid, not because they per se are exempted from the operation of the statute, but for the reason that by their charters they are authorized to take and hold property, and thus exempted from their operation. 43 N. Y. 500.

In Matter of the Estate of Williams, I Misc. Rep. 440, 23 N. Y. Supp. 150, the testator bequeathed all of his personal estate to the trustees of the New York Annual Conference of the Methodist Episcopal Church, to be held in trust by them, and the interest thereof to be applied each year on salary of the pastor of the St. Paul's Methodist Episcopal Church, situated at Athens, Greene county, N. Y. The court held: That the legal title to the personal property of the testator is in the trustees, without any power of disposal of the same. They must keep it invested in order to produce an income, and they are authorized to turn over to the Board of Church Extension of the Methodist Episcopal Church the amount held in trust by them, in case the Methodist Church at Athens becomes extinct. That it would be a clear violation of the duty of the trustees to dispose of the principal sum, and the absolute ownership in the property is therefore sus

and 118 New York State Reporter

pended during a long period of time, unlimited by lives in being. The learned surrogate held that both of the objectionable provisions of the will would have been saved if the estate of the testator had been left to the Methodist Church at Athens for the purposes mentioned in the will; that the legacy would not then have been regarded as a trust, within the meaning of the statute, and there would have been no contention of absolute ownership. In that case the property was given to another corporation, in trust, for the benefit of the church at Athens. That church had no control over the funds during the continuance of the trust. In this case the bequests are directed to the religious corporations, who are to keep the funds invested. They are trustees for that purpose, and for the purpose of applying the income for the uses specified in the will. The gifts were immediate, and be came at once vested. The corporation never could have any other or greater interest than they then had, and no one else had any interest, contingent or otherwise, in the funds. There was no expectant or future contingent interest in any one, and if it be said that the statute of perpetuity is violated because the words "in trust, to be kept invested," take away the jus disponendi, without which there cannot be absolute ownership, if this is the effect of the direction that the fund should be kept invested, the direction would probably be held void, while the gift would be sustained to carry out the main purpose of the testatrix, within a well-recognized principle. Wetmore v. Parker, 52 N. Y. 459.

Where a legacy is given to a person or corporation, and that person or corporation is to have the perpetual use of income to be derived from the legacy, and there is no limitation over (that is, no remainderman), such a legacy is an absolute gift to the person or corporation, even though the words "in trust" are annexed to the gift. In other words, a bequest to a person or corporation "in trust," where that person or corporation is to have the income during his or its life, and there is no bequest over of the remainder, amounts to an absolute gift, and the words "in trust" will be regarded as precatory words. Page on Wills, § 595, states the following rule:

"So, where the income in personalty is given to one, without limiting it to his life, it is held that absolute ownership of the property from which the income is derived passes to the legatee. A life estate in personalty without any gift over is held in Delaware to pass an absolute interest."

In First Presbyterian Church v. McKallor, supra, the will provided as follows:

"I give and bequeath to the Trustees of the First Presbyterian Church of Waterford, N. Y., the sum of $2,000.00, in trust, to invest the same, and out of the income therefrom, to pay annually towards the repairs and improvements of the parsonage property of said Church, the sum of $50.00, the balance of said income to be for the uses and purposes of said church."

And it was held that the bequest was an absolute gift to the church. Merwin, J., in writing the opinion of the court, says:

"The fact that the bequests are in form given in trust for some particular purpose does not make them invalid, as long as the purpose expressed is one within the corporate powers of the church."

In Matter of Woods' Ex'rs, 33 Misc. Rep. 12, 67 N. Y. Supp. 1123, the surrogate of New York held that a gift to a rural cemetery in trust for certain purposes is a gift to the corporation.

In Matter of Smith, 131 N. Y. 246, 30 N. E. 132, 27 Am. St. Rep. 586, Andrews, J., uses this language: "The rule that the gift of the income of property is a gift of the property itself, only applies when there is no limitation of time attached to the gift.'

The income only of the permanent endowment of such institutions can be used with safety to their very existence. Any other course would frustrate, and sooner or later destroy, its usefulness; and, as was said by Church, C. J., in Wetmore v. Parker, supra:

"No mortmain law, restrictive as they have sometimes been, ever prevented the donors from making their gifts in such terms as would preserve the principal from dissipation. It does not create a trust in any such sense as that term is applied to property. The corporation uses the property, in accordance with the law of its creation, for its own purposes; and the dictation of the manner of its use, within the law, by the donor, does not affect its ownership or make it a trustee. A person may transform himself into a trustee for another, but he cannot be a trustee for himself. Lewin on Trusts, 15."

In writing the opinion in the case of Tabernacle Church v. Fifth Avenue Church, supra, at page 335, 60 App. Div., and page 185, 70 N. Y. Supp., Hatch, J., uses this language:

"As we construe this instrument, it falls within the class of so-called trusts arising out of gifts and bequests to charitable and religious corporations for the promotion of some corporate purpose, which have been held not to be trusts in the legal sense. Such a gift does not create a trust in any such sense as that term is applied to property. The donor may lawfully restrain the use of the donee to the income, so as to preserve the principal from dissipation, the gift being to promote some of its chartered purposes. In the present case the corporation is directed to use the income in accordance with the law of its creation, for its own purposes, * and the direction as to the manner of its use, within that law, does not affect its ownership, nor make it a trustee."

*

*

In Bird v. Merklee, 144 N. Y. 550, 39 N. E. 646, 27 L. R. A. 423, Bartlett, J., states:

"The fact that the testator has designated the purpose for which this legacy must be used does not indicate a desire upon his part to create a trust. If it were necessary in order to sustain the bequest, these words of designation by the testator might be treated as merely precatory, but we think it was entirely competent for him to apply his bounty to the whole or any one or more of the various purposes for which the corporations are authorized to hold property. The fundamental error in this case, in the court below, and in cases that are frequently coming to the attention of this court, is the failure to recognize the fact that gifts to religious and charitable corporations to aid in carrying out the purposes for which they are organized, whether by expending the principal of a bequest, or the income of a bequest to be invested in perpetuity, do not create a trust in any legal sense; do not offend against the statutes of perpetuities; are not to be judged by any of the well-known rules pertaining to the law of trusts as applied to private individuals."

It has repeatedly been held that an unqualified gift by will of the rents or income of real estate is, in legal effect, a devise of the property itself. Mott v. Richtmyer, 57 N. Y. 49-60; Jennings v.