INGRAHAM, P. J. (dissenting.) The statement of the testimony by my brother CLARKE and the authorities cited by him. establish, I think, that no contract was proved which would justify the court in enforcing it against the personal representatives of the estate. The only substantial evidence of any contract came from the plaintiff's husband, who had no occupation or business and no property, and apparently was supported entirely by his wife, the petitioner in this proceeding. While his testimony may not be incompetent, he was certainly as much interested as the petitioner, whose testimony is incompetent, and as I read it it fails to establish any contract by the decedent to live with the petitioner during her life and pay half the expenses of the establishment which the plaintiff was to provide or to make any provision for the petitioner by will. Undoubtedly if believed it would establish an intention of the decedent to live with the petitioner, but as I look at it it fails to show any enforceable contract made by her to continue such arrangement for any period. The so-called corroborative evidence consists of declarations of decedent as to her intentions, and as I look at it, fails to corroborate the claims of the petitioner that any express contract was made. Now the proof of the alleged contract in case seems to me to be within the principle established in Hamlin v. Stevens (177 N. Y. 39) where the court said: "Such contracts should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses. We wish to be emphatic upon the subject, for we are impressed with the danger, and aim to protect the community from the spoliation of dead men's estates by proof of such contracts through parol evidence given by interested witnesses." And the same principle has been now firmly established in this State and shown in many cases, some of which are mentioned in the prevailing opinion. Certainly in this case there was not

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such testimony of a contract as was required by the Court of Appeals in Hamlin v. Stevens (supra) as a basis for a claim against the estate of a decedent, and I think, therefore, the decree of the surrogate should be reversed and the proceedings dismissed.

Decree modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.

LOUIS STIEGLITZ, as Administrator with the Will Annexed, etc., of LIZETTE SINSHEIMER, Late of the City of New York, Deceased, Plaintiff, v. THE ATTORNEY-GENERAL OF THE STATE OF NEW YORK, JOHANNA SINSHEIMER et al., Defendants.

(Supreme Court, New York Special Term, June, 1915.)

WILLS-DOMICILE GIFT OF PERSONAL ESTATE TO FOREIGN TRUSTEES-CREATION OF ENDOWMENT—WHEN COURTS OF THIS STATE WILL NOT INTERPOSE TO PREVENT CARRYING OUT OF DISPOSITIONS MADE BY WILL.

When a citizen of this State, or a person domiciled here, makes a gift of personal estate to foreign trustees for the purposes of a foreign charity our courts will not interpose our local laws with respect to trusts and accumulations to arrest the disposition made by the owner of his property but will inquire first whether all the forms and requisites necessary to constitute a valid testamentary instrument under our law have been complied with, and, second, whether the foreign trus tees are competent to take the gift for the purposes expressed and to administer the trust under the law of the country where the gift is to take effect.

In 1867 a testatrix, then a resident of this State, returned to Germany where she was born, and remained there until her death, and while there she made her will creating an endowment for the purpose of giving maidens related to her a dowry at their marriage and also an endowment to contribute to the education of young persons and students of a college or a polytechnical school; the trusts so created were to be executed in Germany. Held, that assuming that the laws of Germany would permit the carrying out of the trusts, no proof to the contrary having been offered, the courts of this State would not interpose the laws of this State to prevent the disposition made by testatrix from being carried out.

ACTION for the construction of a will.

Arthur L. Strasser (Walter J. Rose, of counsel), for plaintiff.

Fiorello H. La Guardia, deputy attorney-general, for attorneygeneral.

Chas. S. Sinsheimer, for defendants Benjamin L. Sinsheimer et al.

Herman S. Bachrach, for defendants Hannah Sinsheimer et al.

Edgar A. Pollack, for defendants Sophie Pollack et al.

NEWBURGER, J. This is an action for the construction of the will and codicil of Lizette Sinsheimer. The will was made in the city of Worms, duchy of Hesse, Germany, on the 10th day of December, 1881, and the codicil executed at the same place on the 22d day of January, 1890. The will and codicil were established and probated under a decree of this court on the 27th day of July, 1914. The decedent, while formerly a resident of this State, had, in 1867, returned to the city of Worms, Germany, of which city she was a native, and remained there until her death. Paragraph 4 of the decedent's will creates an endowment known as the Sinsheimer bridal legacy, for the purpose of giving maidens related to the testatrix a dowry at their marriage, and also an endowment, to be known as the Sinsheimer family stipendium, for the purpose of contributing to the education of young persons, without regard to sex, recommended by their teachers, and students of a college or a polytechnical school. The decedent's long residence in the city of Worms must be considered in determining the scheme of the dispositions contained in her will and codicil. The trusts created were to be executed

our own.

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in the city of Worms, and assuming that the laws of Germany permit the carrying out of such trusts, no proof to the contrary having been offered, this court will not interpose the laws of this State to prevent the disposition made by the testatrix from being carried out. As was said by Mr. Justice O'BRIEN in Hope v. Brewer (136 N. Y. 137): "But I have not been able to find any well-considered case, in which the question was directly involved where a gift to a foreign charity in trust, contained in a valid testamentary instrument, has been held void, where there was a trustee competent to take and hold, and the trust was capable of being executed and enforced, according to the law of the place to which the property was to be transmitted under the will of the donor. The law of this State inhibiting the creation of trusts not expressly authorized by statute and the suspension of the power of alienation of real estate and the absolute ownership of personal property, is founded upon a public policy of * It is not a matter of any public concern whatever to this State whether the personal property of a person domiciled here shall pass to his heirs or next of kin in a foreign country, or to trustees in trust for charity residing there, or even to a foreign corporation for purposes of charity. (Vansant v. Roberts, 3 Md. 119.) Our law with respect to the creation of trusts, the suspension of the power of alienation of real estate, and the absolute ownership of personal, was designed only to regulate the holding of property under our laws and in our State, and a trust intended to take effect in another State, or in a foreign country, would not seem to be within either its letter or spirit. When a citizen of this State, or a person domiciled here, makes a gift of personal estate to foreign trustees for the purpose of a foreign charity, our courts will not interpose our local laws with respect to trusts and accumulations to arrest the disposition made by the owner of his property, but will inquire as to two things: First, whether all the forms and requisites necessary to constitute a valid testamentary instru

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ment, under our law, have been complied with; and, second, whether the foreign trustees are competent to take the gift for the purposes expressed, and to administer the trust under the law of the country where the gift was to take effect, or, as Judge RAPALLO stated, the rule with respect to gifts to charity generally, the inquiry is whether the grantor or devisor of a fund designed for charity is competent to give, and whether the organized body is endowed by law with capacity to receive and to hold and administer the gift' (Holland v. Alcock, supra, p. 337)." And at page 140 he says: "In the leading case of Chamberlain v. Chamberlain (43 N. Y. 424), ALLEN, J., discussing the question, said: The courts of this State will not administer a foreign charity, but they will direct money devoted to it to be paid over to the proper parties, leaving it to the courts of the State within which the charity is to be established, to provide for its due administration and for the proper application of the legacy (Hill on Trustees, 468; 2 Story on Equity Jurisdiction, 430; Provost v. Edinburgh v. Aubery, Ambler, 236; Burbany v. Whitney, 24 Pick. 154; Attorney-General v. Lepine, 2 Swanst. 181).'" (See, also, Mount v. Tuttle, 183 N. Y. 358; Robb v. Washington & Jefferson College, 185 id. 496; St. John v. Andrews Inst., 191 id. 254.) The complaint must be dismissed.

Complaint dismissed.

GIFT TO FOREIGN CHARITY IN TRUST.

1. When a citizen of this State, or a person domiciled here, makes a gift of personal estate to foreign trustees for the purpose of a foreign charity, our courts will not interpose our local laws with respect to trusts and accumulations to arrest the disposition made by the owner of his property but will inquire as to two things, first, whether all the forms and requisites necessary to constitute a valid testamentary instrument under our law have been complied with, and second, whether the foreign trustees are competent to take the gift for the purposes expressed and to administer the trust under the law of the country where the gift is to take effect. v. Brewer, 136 N. Y. 126-138.)

(Hope