In re Griffin's Will

that the object of the trustees of the association in promoting the incorporation of the institute, soliciting its charter, and endowing it, was to create a convenient instrumentality which would either assist it in its educational work, or relieve it from it. ¡Nevertheless, on the face of their respective charters they are separate corporations; neither charter in any way indicating as among its objects the assistance of the other or relation to it.. The refusal of the surrogate to find that the Round Lake Association carried- on its educational projects through the agency of the Round Lake Summer Institute should be construed as a finding that one is not, in a legal sense, the agent or department of the other, but that each is the separate master of its own corporate functions. The one may be the patron of the other, but neither is part of the other. So construed, the refusal is not erroneous. As the corpus of the bequest is given to the association to invest and apply the income to the institute, the former is the trustee of the latter. Underwood v. Curtis, 127 N. Y. 523 , 28 N. E. 585 . As both are corporations, the capacity of the one to act as trustee and of the other as beneficiary of the fund depends upon their charters, which indicate their objects, and the statutes applicable to such corporations; and, in the absence of enabling power in such statutes, then upon the general statutes which define estates, and how they may be acquired and held. To pass beyond these well-defined limits, and attempt to ascertain from their practical operations the power and capacity of corporations to act as trustees and to take and hold estates, would make the policy of the state dependent upon a rule as varying as the practical operations of the various corporations. If this bequest had been directly to the Round Lake Summer Institute, in trust to invest the same and apply the income to the support and maintenance of its school, it would have been valid. It is a literary or academic corporation, and such bequests upon such trusts are authorized to such corporations. Laws 1840, c. 318; Laws 1841, c. 261; Adams v. Perry, 43 N. Y. 487 ; In re Wesley (Sup.) 17 N. Y. Supp. 304 , affirmed in 136 N. Y. 658 , 32 N. E. 1014 . The provisions of the Revised Statutes against perpetuities and the suspension of the power of alienation would not apply, since the acts cited make an exception in favor of such corporations when the devise or bequest is direct and absolute. Wetmore v. Parker, 52 N. Y. 450 . The bequest to an educational, charitable, or religious corporation in trust for the promotion of some one of its chartered purposes is not a trust, in a legal sense. A party cannot be trustee for himself. It is a benefaction given in confidence that the beneficiary will observe the benefactor’s expressed wishes respecting it; and the beneficiary,, by accepting it, agrees to do so. Bird v. Merklee, 144 N. Y. 544 , 39 N. E. 645 , 27 L. R. A. 423 . But where the devise or bequest to a literary, charitable, or religious corporation is not direct and absolute to it for its own benefit, but is for the use and benefit of another corporation, then, since a corporation has no powers except such as are-expressly conferred upon it, or result by implication, as the incidents-of the conferred powers, the power to act as trustee must be found in its charter, or in the laws applicable to such charter or corporation; and the beneficiary must in like manner find its power to take the

income from the hand of such trustee. We may concede that if the trust were valid, and the trustee incompetent, another trustee could be appointed. Holmes v. Mead, 52 N. Y. 332 , 339. This bequest is unlike the devise which was upheld in Adams v. Perry, supra, in which the testator gave a house and lot to trustees named in the will, to convey to the Lowville Academy, with directions to use the same in establishing a female department. As the trustees had no duties except to convey the°property, and as, under the statute, in such case no conveyance was necessary, the court held that the Lowville Academy was the direct devisee, and establishing the female department was within the chartered powers of the academy. The acts of 1840 and 1841 permitted the testator to make the devise, and the academy to receive it. But the case before us is like the bequest in Adams v. Perry, in the same will, of other property to the same trustees, to invest and apply to the academy, to be devoted by the latter to the care of its grounds and the support of its female department. The court held the latter provision void, and remarked:

“These acts of 1840 and 1841 give to the corporations therein described capacity to take property granted or devised to them in trust for the purposes therein specified, but do not authorize the creation of any trusts of which such corporations shall be beneficiaries while others are the trustees, not warranted by the existing law, or give any validity to any such trust. To render these statutes applicable, the property must be" given to the corporation upon some trust thereby authorized.”

The trust to the association for the benefit of the institute does not come within the acts cited, but does come within the Revised Statutes, and is void because it creates an unlawful perpetuity. It is not limited upon lives of human beings, but upon the unlimited lives of the corporations, and may last forever. In Chamberlain v. Chamberlain, 43 N. Y. 424 , a bequest of personal property to the Centenary Fund Society of the Erie Annual Conference of the Methodist Episcopal Church, in trust to apply the income for the benefit of Allegany College for such specific purposes as the Centenary Fund Society should direct, was upheld under the chartered powers of the two corporations. Both were Pennsylvania corporations, and the court found that under the laws of that state the one was authorized by the terms of its charter to take as trustee, and the other to take as beneficiary, pursuant to the terms of the bequest. So far as the case is an authority, it is in support of the unquestioned rule that the terms of the charter of each must be compared with the laws of the state of its creation, to ascertain whether such a bequest is authorized. Sheldon v. Chappell, 47 Hun, 59 , is to the same effect. But it was there held that a corporation could act as trustee for a fund in which it had an interest. The beneficiary was incorporated to aid one of the chartered objects of the trustee. While this did not enlarge the powers of the trustee, it created a new agency through which it could exercise its powers, and thus enabled the trustee to take the bequest to promote' its own objects through an agent especially empowered by the letter of its creation to promote them. Moreover, the trustee was to apply the fund, not to invest it and apply the income. And thus the power of alienation was not suspended. The charter of the association does not authorize it to act as trustee for the insti

tute. It does not authorize the institute to accept bequests, except directly to itself. There is no implication that the chartered purpose of the former is to care for the latter, or that the latter is to depend upon the bounty of the former.

The decree of the surrogate must be affirmed, with one bill of costs to the respondents, payable out of the estate. All concur.