PUTNAM, J.— Plaintiffs, being respectively the husband and son of Jane E. Decker, testator's sister, sue here for the construction of Conrad Vreeland's last will, made and probated in New Jersey, where the testator resided up to his death in June, 1913. He died seized of real estate in New Jersey worth $52,590 and possessed of personalty there amounting to $47,000. He left realty in the State of New York worth $41,300. He had no debts; and his funeral expenses were less than $1,000. He left no descendants, but was survived by a widow, Carrie M. Vreeland (a defendant), and the plaintiff John V. Decker, with certain other defendants, his heirs at law and next of kin.

His will gave his widow the household furniture, live stock and farming utensils, also in lieu of dower she received an annuity of fifty dollars a month. He disposed of the residue as follows:

"Item fourth. Subject to the foregoing bequests and devises I give, devise and bequeath unto my executors, hereinafter named, but nevertheless in trust, all my real and personal estate of every kind whatsoever and wheresoever the same may be found to which I may die seized; my said executors or trustees to hold said estate and not to encumber the real estate in any way whatsoever, but to keep it in good condition and repair, and to keep the funds of my estate properly invested in bonds and mortgages, and to use the income derived therefrom in the following manner: To pay the North New Jersey Baptist Association all the income derived from my estate for and towards the maintenance of the churches, ministers and missionaries of the Baptist denomination, and for the erection of regular Baptist Churches, which are presided over by regular Baptist ministers only, and for the payment of salaries of said ministers or missionaries only; but no minister presiding over any of said churches to receive out of said income any sum in excess of three hundred dollars as salary in any one year. I

hereby empower my executors and trustees to sell and give title to any real estate I may own at my decease. Any church receiving any benefit under this, my last will and testament, to be supplied with a minister who shall hold service in such churches at least once on each Sabbath day, weather permitting. Said income to be applied only to the support, erection and maintenance of churches in the manner aforesaid, in the Counties of Passaic, Bergen, Morris and Sussex, in the State of New Jersey, and which are not located within the limits of any incorporated city in said counties.

“Item fifth. I hereby nominate and appoint my wife, Carrie M. Vreeland, Walter D. Hoag and George C. Freeland execu tors and trustees of this, my last will and testament. I hereby order and direct that the trustees of this trust hereinafter created, shall consist of three persons, and in the event of the death or resignation of any of the above named three trustees or their successors that said vacancy or vacancies shall continue until the next annual meeting or conference of the North Jersey Baptist Association, at which time a trustee shall be selected for each such vacancy or vacancies in the same manner as the association selects its other officers."

By the 4th clause the residuum of the estate, which constitutes practically the entire estate, is to be held perpetually by the trustees named, and those who shall succeed them, in trust for the benefit of named beneficiaries, to wit, an association of Baptist churches, and ministers and missionaries of the Baptist faith.

Plaintiffs maintain that this devise and bequest falls within section 17 of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18), and entitles the heirs at law and next of kin to the excess above one-half of the estate.

Section 17 of the Decedent Estate Law provides: "No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevo

lent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more." (Originally by Laws of 1860, chap. 360.)

This statute, being a limitation upon the right of a testator to dispose of his property, is not to be applied to a devise or bequest, unless such gift comes plainly within the statutory limitation.

These residuary devises and bequests, although charitable, are not to a "society, association or corporation, in trust or otherwise," but are to trustees, upon whom the testator has conferred active powers and duties to keep and preserve the realty, with the power to sell the same, and to keep the funds of the estate invested in bonds and mortgages, and to use the income towards the maintenance of certain churches, ministers and missionaries of the Baptist denomination. This is clearly a devise to individuals for charitable uses, and not within the purview of the statute of 1860. (Allen v. Stevens, 161 N. Y. 122.) The property is permanently in the trustees, the income to be used for specific purposes. Where the trustees named are to turn over the subject of the trust to charitable corporations, such beneficiaries are virtually legatees, and a different rule applies. (Jones v. Kelly, 170 N. Y. 401.) Our Legislature did not design to prevent income as such from going to charitable purposes. Such gifts are not subject to our statutes against perpetuities. (Matter of Shattuck, 193 N. Y. 446, 450, and cases cited.) Mr. Vreeland's will directs the trustees named to execute, themselves, a continuing trust, and vests in the trustees a lasting title to the property so devised.

The equities are with the designated beneficiaries. The testator left no child, grandchild or parent. The widow, who was the only one holding a relation to the testator to benefit

by the statute, approved this testamentary trust, and asks that it be sustained. Plaintiffs, who had no legal claim upon the testator's bounty, should, therefore, be held to their strict legal rights.

I advise that the judgment in favor the defendants be affirmed, with costs.

JENKS, P. J., THOMAS, CARR and STAPLETON, JJ., concurred.

Judgment affirmed, with costs.

EDWIN T. CORNELL, Respondent, v. LILLIAN R. CHILD and FLORENCE C. KENT, Respondents, Impleaded with CHARLES PURDY and Others, Appellants.

(Supreme Court, App. Div., Second Department, December 17, 1915.)

REAL PROPERTY-DESCENT-DECEDENT ESTATE LAW-DESCENT OF BROTHER OF THE HALF BLOOD WHO IS ALSO COUSIN BY MARRIAGE OF ANCESTOR WITH DECEASED WIFE'S SISTER-" ANCESTOR DEFINED.

The half brother of an intestate, who is also her cousin by reason of the fact that the intestate's father married his deceased wife's sister, and also the descendants of the deceased half brother, being nieces of the half blood, are "of the blood" of the intestate and inherit her real estate to the exclusion of other cousins who are descendants of a deceased aunt of the intestate.

Where a sister inherits lands from her brothers "they are ancestors " from whom the estate is derived within the meaning of section 90 of the Decedent Estate Law, and the lands so inherited by the sister descend to her brother of the half blood and to the descendants of a deceased brother of the half blood under the circumstances aforesaid.

APPEAL by the defendants, Charles Purdy and others, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Westchester

on the 15th day of March, 1915, upon the decision of the court after a trial at the Westchester Special Term in an action for partition.

Eben H. P. Squire, for the appellants.

Burton C. Meighan, for the respondents.

PUTNAM, J.- The rights of the descendants of three sisters, Sarah, Elizabeth and Ann Theall, are here involved. Mr. William Cornell first married Sarah, by whom he had two sons, William T. Cornell (who in 1907 deceased, leaving as only issue Lillian R. Child and Florence C. Kent) and Edwin T. Cornell, the plaintiff herein. After Sarah's death, Mr. William Cornell married as his second wife Elizabeth Theall, by whom he had three children, Fred L. Cornell, Frank S. Cornell and a daughter, Ella L. Cornell. Mrs. Elizabeth Cornell was seized of the lands here in question. She died in 1892, intestate, so that the lands subject of this suit for partition descended to her three children aforesaid, each having a third interest, as tenants in common. These children have now all died. Ella's interest became increased by devise and descent from her brothers. By lapse of certain provisions of the will of Ella Cornell, a case of partial intestacy has arisen as to one-half of her residuary estate. The respondents claim that this inheritance passed to her brother of the half blood, plaintiff Edwin T. Cornell, with her nieces of the half blood, Lillian R. Child and Florence C. Kent, daughters of the deceased half-brother Williams T. Cornell, between whom there is entire agreement.

The descendants of Ann Theall, by her marriage with Thomas Purdy, also claim an equal share in the property as to which Ella L. Cornell died intestate. This family relationship is shown by the following diagram: