701, as amd. by Laws of 1901, chap. 291; now Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 12, as amd. by Laws of 1909, chap. 144, and Laws of 1911, chap. 220; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 113, as amd. by Laws of 1909, chap 144), has been so frequently considered by the courts that a further review seems almost unnecessary. Under this act charitable trusts are no longer invalid by reason of the indefiniteness or uncertainty of the persons designated as beneficiaries. Thus, in Matter of

Robinson (203 N. Y. 380) the court sustained a trust which directed the trustees to disburse the principal or interest of the residuary estate of a testatrix, or both, in their discretion, "To provide shelter, necessaries of life, education, general or specific, and such other financial aid as may seem to them fitting and proper to such persons as they shall select as being in need of the same. Preference is to be given to persons who are elderly or disabled from work, and to persons who are Christians, of good moral character, members of one of the so-called evangelical churches, to wit, the Methodist, Baptist, Presbyterian, Congregational, Moravian or Episcopal, and who are not addicted to the use of intoxicants or tobacco, nor to attendance at theatrical entertainments."

In Matter of Cunningham (206 N. Y. 601) the testator bequeathed $5,000 to his executors "to be by them applied in their best judgment and discretion to such charitable and benevolent associations and institutions of learning for the general uses and purposes of such associations and institutions as my said executors may select, and in such sums respectively as they may deem proper." In sustaining the trust, BARTLETT, J., who delivered the opinion of the court, said: "A considerable number of English cases might be cited in which the purpose of the charitable trust which received the sanction of the court was quite as indefinite. I shall refer to only a few of them. In Moggridge v. Thackwell (7 Vesey, 36b, 85) Ann

Cain gave her residuary personal estate to her executor, desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen who have large families and good characters;' and Lord ELDON affirmed the decree of Lord THURLOW who had held that the trust was sufficiently definite to be executed by the court. In Legge v. Asgill (Turner & Russell, 265, note) the testatrix made a number of bequests in her will, and executed a codicil providing: "If there is money left unemployed, I desire it may be given in charity.' It was held that this was an effective gift of £2,000 of personal estate to charitable purposes. In Whicker v. Hume (7 House of Lords Cases, 124, 154) there was a bequest of personal property upon trust to apply and appropriate the same in such manner as the said trustees or trustee shall, in their absolute and uncontrolled discretion, think proper and expedient for the benefit, and advancement and propagation of education and learning in every part of the world.' It was objected that the gift was of such an extensive nature that it was impossible to carry it into effect; but Lord CHELMSFORD held that the purpose of the testator was to promote teaching and instruction, and the circumstance that the whole habitable world was open to the discretion of the trustees did not prevent the gift from being available as a good charitable bequest."

In Matter of Miller (149 App. Div. 113) this court held, where the income of a trust fund was directed to be expended for scholarships to be granted," first, to the sons of poor clergymen in France intending to become ministers of the gospel, as may desire the same, and secondly, in the absence of such, to any poor young men wishing to become ministers of the gospel or missionaries," that the trust was valid and could be enforced. (See, also, Buell v. Gardner, 83 Misc. Rep. 513, where a trust created for the benefit of "institutions and persons who may be worthy, needy and deserving of the same," was held good. And Utica Trust & Deposit Co. v. Thomson, 87 Misc. Rep. 31,

where the income of a trust fund was directed to be paid yearly "to such charity or charitable institutions as shall be designated by and agreed upon by any three of said trustees.")

The language used in the codicil in creating the trust under consideration is no more indefinite than in some at least of the authorities cited. The amount given was to be spent in charity. That is clear. The purpose of the statute was to validate gifts or bequests where the beneficiaries were indefinite and uncertain. Here all that is uncertain is as to who shall be the recipient of the charity, and that necessarily must be left to the discretion of the trustees.

Matter of Shattuck (193 N. Y. 446), upon which the appellant principally relies, is not, as I read it, an authority for holding that the trust is void for indefiniteness of purpose; on the contrary, it seems to me an authority to the effect that the trust here created is valid. Judge CHASE, who delivered the opinion, said: "The act of 1893 doubtless saves a trust from being invalid because the beneficiaries are indefinite and uncertain, but a trust may be so indefinite and uncertain in its purposes as distinguished from its beneficiaries as to be impracticable, if not impossible, for the courts to administer." was there held that the purpose for which the trust was designed was not, necessarily, charitable. This clearly appears from a statement in the opinion in Matter of Cunningham (supra). Judge BARTLETT said: "Inasmuch as it was possible, under the terms of the Shattuck trust, that it might be devoted in whole or in part to private use, the entire gift was pronounced invalid."

It

If the trust be valid the plaintiff, as the assignee, has not interest therein, and the same result follows if the trust created by the will were disregarded and the money sought to be recovered were given to Alice Franchetti by her sister upon condition that she expend the same in the charity alleged. It is well settled that when a valid charitable trust is created, without

provision for a reversion, the interest of the donor is permanently excluded. In the absence of such a provision the title to the property does not revert to the donor or his representatives. This rule was restated in Associate Alumni v. Theological Seminary (163 N. Y. 417), Judge CULLEN, who delivered the opinion of the court, saying: "The general rule is if the trustees of a charity abuse the trust, misemploy the charity fund, or commit a breach of the trust, the property does not revert to the heir or legal representative of the donor, unless there is an express condition of the gift that it shall revert to the donor or his heirs, in case the trust is abused; but the redress is by bill or information by the Attorney-General or other person having the right to sue.' (2 Perry on Trusts, § 744*; Sanderson v. White, 18 Pickering, 328; Vidal v. Girard's Executors, 2 Howard [U. S.], 191; Mills v. Davison, 54 N. J. Eq. 659.)" (See, also, 2 Story Eq. Juris. [13th ed.] § 1177; Potter v. Chapin, 6 Paige, 639.)

If it be true, therefore, as contended, that there has been a misuse of the trust fund, that would not entitle the donor, or in the case at bar the assignee of one of her residuary legatees, to the return of the fund. The legal title was in the trustee and, she having died, the execution of the trust devolves upon the Supreme Court (Allen v. Stevens, 161 N. Y. 122; Matter of Griffin, 167 id. 71) which carries the same into effect by a trustee appointed by it. The plaintiff has no standing to maintain such action, since he has no interest in the fund or the enforcement of the trust.

It follows, therefore, that the order and judgment appealed from should be affirmed, with costs.

INGRAHAM, P. J., LAUGHLIN, DOWLING and HOTCHKISS, JJ., concurred.

Judgment and order affirmed, with costs.

*See 2d ed.- [REP.

WARREN PUTNAM NEWCOMB, as Executor, etc., of H. VICTOR NEWCOMB, Deceased, Appellant, v. JEANNE LA ROE, Respondent. (Action No. 2.)

(Supreme Court, Appellate Division, First Department, April 9, 1915.) DECEDENT'S ESTATE-ACTION TO RECOVER MONEYS ALLEGED TO HAVE BEEN LOANED BY TESTATOR TO DEFENDANT-EVIDENCE-RES ADJUDICATA,

In an action to recover moneys alleged to have been advanced by plaintiff's testator for the purchase of a bond for the defendant, a former employee of the testator, by a stock brokerage firm, and other moneys advanced by him to her for her account with said firm, or paid to said firm by him for her account, and claimed to constitute loans from him to her, the defendant pleaded payment and proved the repayment of a portion of the money by her check, which was uncontroverted. The plaintiff claims that the judgment of this court on appeal in another action by him against the defendant for the construction of the testator's will, with respect to the effect on a claim for services made by the defendant of a legacy and an annuity to her, constitutes a conclusive adjudication that none of the moneys sought to be recovered in this action were advanced to the defendant on account of services, or were by agreement between her and the testator to be applied toward the payment of her claim, because the court reversed findings that the defendant had been paid the amount for which recovery is sought in this action. The defendant pleaded the pendency of the other action, and in her account annexed to her answer therein credited the plaintiff with the amount for which she is now sued. The attorney for the plaintiff in this action testified that the claim upon which it is based was not litigated in the other action.

Held, on all the evidence, that the decision of the court in the first action is not res adjudicata, and that a judgment in favor of the defendant should be affirmed.

APPEAL by the plaintiff, Warren Putnam Newcomb, as executor, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of October, 1914, upon the verdict of a jury rendered by direction of the court.