In re the Will of Hamilton

Foster, J. This is an appeal from a decree of the Surrogate’s Court of Chautauqua County adjudging that a trust, created by the testatrix in the Nineteenth and Twentieth paragraphs of her will, for the establishment of an animal home or hospital and for the care, comfort and benefit of dumb animals therein, is a charitable trust and a valid testamentary disposition of her residuary estate. The opinion of the learned Surrogate, construing the testatmentary provisions under attack, is comprehensive and persuasive. We shall, therefore, state but briefly our reasons for agreement with his conclusions. Testatrix left her homestead property at Ripley, N. Y., “ for the purposes of an animal home or hospital,” as a trust committee may decide; the remainder of her estate, and the income therefrom, “ for the care and comfort of such animals ” as the judgment of the committee may decide, to the end that the “ home or hospital shall be maintained for the comfort and benefit of dumb animals.” We are told that the decedent’s residuary estate will exceed $400,000 in value. No issue has been made of decedent’s testamentary capacity. The trust she has attempted to establish is attacked upon the grounds that it is not for a charitable or benevolent use as contemplated by any statute (Personal Property Law, § 12; Real Property Law, § 113), and hence is void under the rules against perpetuities; that the beneficiaries are uncertain, and the trust provisions so indefinite as to permit commercial transactions for profit. The decisive issue is whether the trust may properly be held to be one for a charitable use. If so, the rule against perpetuities does not apply (Allen v. Stevens, 161 N. Y. 122), nor, under the statutes does the lack of certainty as to beneficiaries affect its validity. There is no precise definition of a charitable use or trust. Essentially such a trust must carry the implication of a public benefit and must not be for a personal, private or [636] selfish end (Matter of MacDowell, 217 N. Y. 454). Many specific instances have been approved as charitable uses but we find no case in this State precisely in point as a precedent here. We turn, therefore, to a broader exposition of what may be termed charitable purposes: “A trust for the promotion of purposes which are of a character sufficiently beneficial to the community as to justify permitting property to be devoted forever to their accomplishment is charitable. * * * c. Belief of Animals. A trust to prevent or alleviate the suffering, of animals is charitable. Thus, a trust for the prevention of cruelty to animals, or a trust to establish a home for animals, or a trust for the prevention or cure or treatment of diseases or of injuries to animals, is charitable(2 Bestatement, Trusts, § 374.) (Emphasis supplied.) We find nothing in the foregoing statements that conflicts with any prohibition expressed in this State by way of statute or otherwise, and hence we have no difficulty in adopting it. Moreover, and insofar as they may apply, we think them consistent with the common view that the care and ‘comfort of animals are generally beneficial to mankind. Certainly the converse of this would not be regarded as true in this day and age. In the modern view consideration for dumb animals is regarded as commendable, and encouraged and promoted .by numerous societies which are organized for this sole purpose. We hold, therefore, that the trust in question is a charitable one. With the motives of testatrix we are not concerned (Matter of Everson, 268 App. Div. 425). If a definite charitable use may be found we are bound to uphold it and preserve the intention of the testatrix insofar as it is possible so to do (Matter of Horner, 237 N. Y. 489; Matter of Gallien, 247 N. Y. 195; Matter of Durbrow, 245 N. Y. 469; Matter of Durand, 250 N. Y. 45). The contention that the real property left for the purposes of the trust may become a haven for wild animals, snakes and reptiles we regard as without merit. We think, as the Surrogate has expressed, that it was the intention of .the.testatrix to provide for the care of domestic animals. Some claim is made that the fund provided is inadequate to support the trust. This is purely conjectural at this stage, but even if it. were an established fact it would not be sufficient to invalidate the trust since the doctrine of cy pres applies. Equally hypothetical is the possibility of commercialism arising out of the operation of the trust. Such a bare possibility is not sufficient to defeat an otherwise valid trust, and concerning this phase [637] of the matter we are mindful that the Attorney-General represents the beneficiaries, and it is his duty to see that the trust is properly enforced. The decree should be affirmed, with costs to the respondent.