dered levied by the legal voters present at said meeting, for the aforesaid purposes." Section 119 of the roads and bridges act provides that the highway commissioners shall ascertain how much money must be raised "for the making and repairing of bridges, the payment of damages by reason of the opening, altering and laying out of new roads and ditches, the purchase of necessary tools, implements and machinery for working roads, the purchase of the necessary material for building or repairing or draining roads and bridges, the pay of the overseer of highways during the ensuing year, and for the payment of all outstanding orders drawn by the commissioners on their treasurer," and shall levy a tax on all the real, personal and railroad property in said town, not exceeding 25 cents on the $100. The section also provides that, upon the giving of notice "that a larger amount of money will be required for the purpose of constructing or repairing roads or bridges in their town than can be realized from the real, personal and railroad tax authorized by law to be assessed by the commissioners," the voters may at the next town meeting authorize "an additional amount to be raised by tax, not exceeding twenty-five cents on each $100 valuation." The question here presented is whether the words in the additional levy, "for the aforesaid purposes," can be fairly construed to mean the same as the words of the statute, "for the purpose of constructing or repairing roads or bridges." This statute must be strictly construed. Under the reasoning of this court in People v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co., 249 Ill. 160, 94 N. E. 20, we think the words used in the certificate of levy cannot be construed to comply with the statute. The objection to this additional levy should, therefore, have been sustained by the county court. [2, 3] It is further contended by appellant that the town of North Litchfield was operating under the labor system until April 10, 1910, at which time, by a majority of 330, the voters abolished that system, and that in pursuance of this action the commissioners of highways levied 36 cents on the $100, and filed a certificate to that effect with the board of supervisors. Appellant objected to this tax, and the trial court sustained the objections. It also objected to the district road tax in district No. 2 of North Litchfield for $115.59. Counsel contend that this objection should also have been sustained. There is nothing in this record to show why the trial court sustained the objection to the road and bridge tax as to the entire town of North Litchfield, and overruled it as to the road and bridge tax in road district No. 2 of said town. The record is not abstracted as to the objection to the road and bridge tax of the entire town, and, while appellee has filed cross-errors to this tax, no additional abstract was filed, and no reasons are set out in the brief why the court ruled incorrectly in sustaining the objection as to this tax. This court, in this state of the record, is not required to rule on the crosserrors. In order to sustain its objection as to the $115.59 levied for the road and bridge tax in district No. 2 of North Litchfield township, it was necessary for the appellant to prove that the election abolishing the la bor system was based upon a proper petition and notice. Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Randle, 183 Ill. 364, 55 N. E. 728; Chicago & Northwestern Railway Co. v. People, 193 Ill. 539, 61 N. E. 1068; People v. Toledo, St. Louis & Western Railway Co., 231 Ill. 514, 83 N. E. 193. No such proof was made. The only proof in the record is that at the annual town meeting the report of the canvassing board was made that 623 votes were cast for abolishing the labor system and 293 against it. [4] The presumption of law is that a tax is legally levied, and the burden of proof is upon the objector to establish the contrary. Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. People, 212 Ill. 551, 72 N. E. 790. Appellant not having proved that the election to abolish the labor system was based on a legal petition and statutory notice, this court cannot hold, on this record, that the labor system was abolished in said town. The county court, therefore, rightly overruled the objections as to the $115.59 for road and bridge tax in district No. 2. The judgment of the county court, overruling the objections to the $115.59 for road and bridge tax in district No. 2 in North Litchfield township, must therefore be affirmed, but the judgment of the court must be reversed as to the road and bridge tax in Bois D'Arc township, and the cause remanded to the county court, with directions to sustain the objection to the said additional levy for road and bridge purposes. Affirmed in part, and reversed in part, with directions. (203 N. Y. 380.) In re ROBINSON'S WILL. (Court of Appeals of New York. Nov. 28, 1911.) 1. CHARITIES (§§ 21, 22*)-CERTAINTY AS TO BENEFICIARIES AND PURPOSES. A will creating a trust must sufficiently define the beneficiaries and the purpose of testator, so that the trust can be enforced by the courts, notwithstanding Personal Property Law (Consol. Laws 1909, c. 41) § 12, provides no gift to charitable uses shall be invalid for indefiniteness or uncertainty of the persons designated as the beneficiaries. [Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 44-56; Dec. Dig. §§ 21, 22.*] 2. CHARITIES (§ 21*) - PUBLIC PURPOSE STATUTES “GIFT.” Personal Property Law (Consol. Laws 1909, c. 41) § 12, providing that no "gift" to charitable uses shall be invalid for indefiniteness or uncertainty of the persons designated as the beneficiaries, applies only to gifts for a public purpose, and not to gifts for the benefit of private institutions or individuals. [Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 44-50; Dec. Dig. § 21.* of law, that sustains the trust and devotes the fund included therein to purposes permitted by law and to the good of humanity should be preferred. [Ed. Note.-For other cases, see Charities, Dec. Dig. § 4.*] 7. CHARITIES (§ 7*)-BENEFICIARIES. Trusts, otherwise valid as a gift to charitable uses, are sustained, though the beneficiaries are not necessarily or in terms confined to residents of the state. [Ed. Note. For other cases, see Charities, Dec. Dig. § 7.*] 8. CHARITIES (§ 20*)-ADMINISTRATION AND ENFORCEMENT. A bequest for charitable uses may, under direction of the will, be administered and enforced by and through a corporation subsequently created for that purpose. Cent. Dig. § 29; Dec. Dig. § 20.*] Appeal from Supreme Court, Appellate Division, Second Department. In the matter of the probate of the will of Mary S. Robinson, deceased. From an order of the Appellate Division (130 N. Y. Supp. 259), so far as it affirms that part of the decree of the Surrogate's Court of Westchester County (71 Misc. Rep. 87, 129 N. Y. Supp. 1020), which adjudged invalid a special trust in the will, the executor and trustees appeal. Reversed. For other definitions, see Words and Phrases, vol. 4, pp. 3084-3087; vol. 8, p. 7670.] 3. CHARITIES (§ 36*)-CONSTRUCTION OF WILL -PURPOSE OF GIFT. The words "such other financial aid," in a bequest in trust "to provide shelter, necessaries of life, education, * and such other financial aid as may seem to" the trustees "fitting and proper to such persons as Mary S. Robinson, the testatrix, died a they shall select as being in need of the same. resident of Westchester county, October 16, Preference * to be given to persons 1909, leaving an estate consisting of personal who are elderly or disabled from work"-are to be read with the preceding words, and the property only. She left an instrument in expression of preference in selection of persons writing, bearing date January 26, 1904, purto receive the fund, and, as so read, be held to porting to be her last will and testament. refer to financial aid of the same general char- It was offered for probate in the surrogate's acter and purpose as that included in such pre-court of Westchester county, and her next of ceding words, and be construed to mean other financial aid for similar urgent and necessary purposes. [Ed. Note. For other cases, see Charities, Dec. Dig. § 36.*] 4. CHARITIES (§ 10*)-PURPOSE OF GIFT. erence * A bequest in trust "to provide shelter, necessaries of life, education, * and such other financial aid as may seem to" the trustees "fitting and proper to such persons as they shall select as being in need of the same. Prefto be given to persons who are elderly or disabled from work"-is within Personal Property Law (Consol. Laws 1909, c. 41) § 12, authorizing gifts "to religious, educational, charitable or benevolent uses"; it being for those in need, who require shelter, necessaries of life, and education, and other like benefactions, and not for those simply desiring something useful. [Ed. Note.-For other cases, see Charities, Dec. Dig. § 10.*] 5. CHARITIES (§ 12*)-PURPOSES OF GIFT-SPECIAL EDUCATION. A gift is not without the bounds of charity, because authorizing use of the fund to furnish "specific," as well as general, education. [Ed. Note.-For other cases, see Charities, Cent. Dig. 36; Dec. Dig. § 12.*] 6. CHARITIES (§ 4*) VALIDITY CONSTRUC kin and the Attorney General of the state of New York were duly cited to appear in the proceeding. The next of kin and said Attorney General thereafter duly appeared, and one of said next of kin filed an answer to the petition for the probate of said will expressly putting in issue the validity, construction, and effect of the sixth to eleventh paragraphs, inclusive, of said instrument, and in said answer denied that the said provisions constitute a valid disposition of personal property by will under the laws of this state. The surrogate found that the will was duly executed in accordance with the laws of the state of New York, and that it is the last will and testament of said deceased; but he found, as a conclusion of law, that the trusts attempted to be created by the sixth, seventh, and ninth paragraphs of said will are invalid, and that the eighth, tenth, and eleventh paragraphs of said will are void, and that the testatrix died intestate as to all of her property, except that part thereof given and bequeathed by the second, third, and fourth paragraphs of her said will, and that the next of kin of the testatrix are entitled to her residuary estate in equal Lewis E. Carr, for appellants. Edward R. Otheman, for respondents. shares. Matter of Robinson, 71 Misc. Rep. | the Appellate Division which affirmed the 87, 129 N. Y. Supp. 1020. An appeal was decree of the surrogate, declaring the ninth taken by the executor and trustees named in paragraph of the will invalid and the tenth the will from the decree of the surrogate's and eleventh paragraphs void. court, entered in accordance with said findings, to the Appellate Division of the Supreme Court, so far as it declares parts of said will invalid or void. The Appellate Division modified said decree by declaring valid the trust set forth in the sixth and seventh paragraphs of the will, and as so modified said decree was affirmed. Matter of Robinson (Sup.) 130 N. Y. Supp. 259. The eighth paragraph of the will provides, in case of the death of certain persons and the survivor of them, or of certain other contingencies, for a gift over of the fund given in trust by the sixth and seventh paragraphs of the will to the fund provided by the ninth paragraph of the will. The eleventh paragraph of the will provides that if any person named in the will contests the same such person shall forfeit any right to participate in the estate. The ninth and tenth paragraphs of the will are as follows: "Ninth. I direct my said executor to pay over the rest, residue and remainder of my estate to the said Burton C. Meighan and Frank B. Upham, in trust, however, for the following uses and purposes: The said trustees are to invest such portion of the fund as shall not be used for the purposes herein specified, in the securities prescribed by law as savings bank investments, and they are to disburse the principal or interest, or both, of said fund in their discretion as follows, to wit: "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. "Tenth. I authorize and empower my said trustees, in their discretion, to appoint other persons, not exceeding five, to act with them in the execution of the trusts, or either of them, herein provided for; and I direct that the execution of said trusts shall thereupon devolve upon all of the said trustees jointly and upon the survivors of them. If the said two trustees, Burton C. Meighan and Frank B. Upham, deem it advisable, they may cause a corporation to be created for the purpose of executing the trusts provided for in this will." The executor and trustees named in the CHASE, J. (after stating the facts as above). [1, 2] Gifts for religious, educational, charitable, or benevolent uses, to indefinite or uncertain beneficiaries, are now permitted in this state by express provision of statute. Personal Property Law, § 12 (Laws of 1909, c. 45 [Consol. Laws 1909, c. 41]); Real Property Law, § 113 (Laws of 1909, c. 52 [Consol. Laws 1909, c. 50]). The law relating to gifts for charitable uses, as it existed prior to chapter 701 of the Laws of 1893, which was substantially re enacted in said personal property law and said real property law, has been changed. Matter of Shattuck, 193 N. Y. 446, 86 N. E 455; Bowman v. Domestic & Foreign Miss. Society, 182 N. Y. 494, 75 N. E. 535; Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568. The spirit of love and religion which is the basis of charity should be exercised in construing the provisions of such acts. A will, however, must sufficiently define the bene ficiaries and the purpose of the testator, so that the trust can be enforced by the courts; otherwise the will does not come within the provisions of the acts. The gifts must be also for a public and not for a private purpose. This court has recently construed the provisions of the act of 1893 in the Shattuck Case, 193 N. Y. 451, 452, 86 N. E. 456, and there say: "It is manifest that it is necessary for a testator to define his purpose and intention in making a trust sufficiently so that the court, at the instance of the Attorney General, representing the beneficiaries, can by order direct in carrying out the trust duty." And the court further say: "The intention of the Legislature in passing the act of 1893 was to save to the public charitable gifts made in trust to uncertain and indefinite beneficiaries. Gifts for the benefit of private institutions or individuals were not intended to be included within its provisions." It is not seriously contended but that the trust attempted to be created by the ninth paragraph of the testatrix's will is within the provisions of the personal property law, and can be carried out, providing the purpose and intention of the testatrix in defining the beneficiaries is lawful and sufficiently clear. so that the same can be enforced by the courts. The important question for determination on this appeal is whether the gift provided by the will is confined to religious educational, charitable, or benevolent uses The answer to such question involves the purpose of the testatrix. [3, 4] The personal property law, so far as necessary for the present discussion, is " [5] It is urged, however, by the respondent that the will authorizes the trustees to expend the fund for special education, and that to such extent it is not within the terms of the statute. The language of the statute does not confine educational uses to such as religious, educational, charitable, or benevo- | in want, necessity, exigency, poverty, indilent uses, which shall in other respects be gence, and destitution. Construed as stated, valid under the laws of this state, shall be the purpose of the testatrix was within the deemed invalid by reason of the indefinite- language of the statute, which authorizes ness or uncertainty of the persons designated gifts "to religious, educational, charitable, as the beneficiaries thereunder in the instru- or benevolent uses." Shelter, necessaries of ment creating the same. * * The pur-life, education, and other like benefactions pose of the trust must come within the uses to be supplied to those in need, to be selected specified in the act. In construing the will by the trustees, is a definite purpose. now under consideration, the words "such other financial aid" must be read with the words that precede them, and the expression of preference in selecting persons to receive the fund, subsequently stated in the same paragraph; and as so read, the preceding words not being exhaustive, such compre- are general. There is nothing in the fact hensive words should be held to refer to financial aid of the same general character and purpose as that included in such preceding words. They should be construed to mean other financial aid for similar urgent and necessary purposes. Matter of Reynolds, 124 N. Y. 388, 26 N. E. 954; Matter of Hermance, 71 N. Y. 481, 487; Lewis v. Howe, 174 N. Y. 340, 346, 66 N. E. 975, 1101; People ex rel. Huber v. Feitner, 71 App. Div. 479, 75 N. Y. Supp. 738; Garvey v. Garvey, 150 Mass. 185, 22 N. E. 889; 1 Jarman on Wills (5th Ed.) 417. The rule which we are applying is that, where certain things are enumerated, and such enumeration is followed or coupled with a more general description, such general description is commonly understood to cover only things ejusdem generis with the particular things mentioned. In such case it is presumed that the testator had only things of that class in mind. Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458. that specific education, as distinguished from general or common school education, was contemplated by the testatrix that condemns the trust as being one other than for charitable uses. Charity at least includes any department or extent of education primarily and fairly calculated to make the recipient self-supporting. A gift is not without the bounds of charity, because the training contemplated thereby may include special or specific education. St. John v. Andrews Institute, 191 N. Y. 254, 83 N. E. 981; Rothschild v. Schiff, 188 N. Y. 327, 80 N. E. 1030; Matter of Shattuck, supra. The respondent refers to the Shattuck Case, 193 N. Y. 452, 86 N. E. 456, as specifically holding that the word "educational," as used in the statute, does not necessarily indicate a public charitable use. In that case this court say: "The word 'educational' does not necessarily describe a public or charitable institution, and for that reason, as we will show, the trust is not saved by the pro The word "need" is used in the same par-visions of the act of 1893." That language agraph of the will as a noun, and as such was used with reference to an educational it is defined to mean: "A state requiring institution, and in connection with a will supply or relief; pressing occasion for some- that gave, in general terms, the trustee authing; urgent want; necessity; exigency." thority to use the income of the trust by It is also defined to mean: "The lack of any-paying the same "to religious, educational thing desired or useful, as, 'He felt the need or eleemosynary institutions as in his judgof a better education.'" The latter meaning is by lexicographers said to be its meaning in a milder sense. Its general and more commonly accepted meaning is stated in the first-quoted definition, and also as: "Want of the means of subsistence; poverty; indigence; destitution." ment shall seem advisable." It was there held that an educational institution includes a private, as well as a public, institution, and that, so far as it included a private institution, it was without the terms of the statute. In the will now under consideration, a gift to an institution is not contemplated. It authorizes the use of the money included in the trust to furnish an "education, general or specific." A specific education is no more without the charitable purpose of the testatrix than is a general education, and the construction of the words relating to education are in no way controlled by what was said in the Shattuck Case. Reading the statement of preference in the selection of beneficiaries in connection with the words "shelter, necessaries of life, education, general or specific," and also associating with such words the thought of want and necessity, which, in the connection in which they are used, they naturally and commonly imply, it is plain and unmistakable that the testatrix intended the trust for the benefit of those in need, who require shelter, [6] It is doubtless true that the paragraph necessaries of life, and education, and not of the will by which the trust is attempted for those simply desiring something useful; to be created is susceptible of more than and that the discretion vested in her trustees one construction; but a construction which extends only to selecting such persons as to is fairly within the rules of law, and that Error, Cent. Dig. 88 4273-4279, 4345-4347; [Ed. Note.-For other cases, see Appeal and Dec. Dig. § 1083.] 2. WATERS AND WATER COURSES (§ 18315*) — cluded therein to purposes permitted by law | court of appeals presents a question which it and to the good of humanity, should be must review. preferred. Crozier v. Bray, 120 N. Y. 366, 375, 24 N. E. 712; Mee v. Gordon, 187 N. Y. 400, 410, 80 N. E. 353, 116 Am. St. Rep. 613; Young Women's C. Home v. French, 187 U. S. 401, 23 Sup. Ct. 184, 47 L. Ed. 233; Goodwin v. Coddington, 154 N. Y. 283, 48 N. E. 729; Kelly v. Hoey, 35 App. Div. 273, 55 N. Y. Supp. 94; Thomas, Law of Estates Created by Wills, 1657. In our judgment, the construction of the will as we have indicated is the more reasonable one. It being determined from the will that the trust and the purpose of the testatrix in her attempt to establish it are for the uses enumerated in the statute, the courts can and will, at the suit of the Attorney General of the state, compel the trustees to carry out the same according to such purpose and for such uses. CONTRACTS-WATER COMMISSIONERS-POWER A town is not liable at law for contracts made by district water commissioners in the town. themselves liable in their official capacity upon [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 1831%.*] 4. WATERS AND WATER COURSES (§ 18316*)OFFICERS · CAPACITY OF WATER COMMIS SIONERS. A board of water commissioners in a town constituted under Town Law (Consol. Laws 1909, c. 62) does not have an express quasi corporate capacity; and, as such capacity is not essential to the proper conduct of its of fice, the courts will not hold that such corporate capacity exists, in the absence of legislative action in that regard. [7] Trusts, otherwise valid under the acts mentioned, are sustained, although the beneficiaries are not necessarily or in terms confined to residents of this state. St. John v. Andrews Institute, supra; Manley v. Fiske, 139 App. Div. 665, 124 N. Y. Supp. 149, affirmed 201 N. Y. 546, 95 N. E. 1133; Allen v. Stevens, supra; Rothschild v. Schiff, supra: Bowman v. Domestic & Foreign Miss.. Society, supra. [8] A gift for the uses specified in the statute may, under the direction of the will, be administered and enforced by and through a corporation subsequently created for that purpose. St. John v. Andrews Institute, supra. The validity and effect of the eleventh paragraph of the will was not discussed, nor was a decision upon the appeal, so far as it relates thereto, insisted upon in this court. The order of the Appellate Division, so far as it relates to the ninth and tenth paragraphs of the will, should be reversed, and the provisions of the said paragraphs of the will should be declared valid and enforceable, with costs to all parties appearing and filing briefs, payable out of the fund. CULLEN, C. J., and HAIGHT, VANN, WERNER, WILLARD BARTLETT, and HISCOCK, JJ., concur. Ordered accordingly. (203 N. Y. 445) PEOPLE ex rel. FARLEY. WINKLER et al., Board of Water Com'rs. Ed. Note.-For other cases. see Waters and WATER District water commissioners who, as a board, are not quasi corporations, but only administrative officers, with power to make contracts in their official name and capacity, and intrusted with funds to meet them, and who are not agents of the town or district, nor personally liable upon their official contracts, cannot be sued in actions at law. [Ed. Note.-For other cases, see Waters an Water Courses, Dec. Dig. § 1832.*] 6. MANDAMUS (8_3*)-REMEDY AT LAW-ACTION AGAINST WATER COMMISSIONERS OF A TOWN. Under Town Law (Consol. Laws 1909, c. 62) §§ 270-281, relating to the creation of water districts and the appointment, powers. and duties of water commissioners, the only contract made by them, or for a failure to pay appropriate remedy for an alleged breach of a any debt incurred by them in their official capacity, is mandamus. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 10-34; Dec. Dig. § 3.*] 7. CERTIORARI (§ 26*) - GROUNDS - PUBLIO BOARDS AND OFFICERS AUDIT AND PAYMENT OF CLAIMS. Under the provision of Town Law (Consol. Laws 1909. c. 62) §§ 270-251, certiorari may be invoked against a board of district water commissioners, when their action in paying a claim is challenged as unlawful. [Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 39; Dec. Dig. § 26.*] Appeal from Supreme Court, Appellate DIvision, Second Department. Application by the People, on the relation (Court of Appeals of New York. Dec. 5, of John M. Farley, for mandamus against 1911.) 1. APPEAL AND ERROR ($ 1083*)-DECISIONS OF INTERMEDIATE COURT-DECISIONS REVIEWABLE-MANDAMUS. Where an order granting a writ of mandamus is reversed upon the law, and not as a matter of discretion, a further appeal to the Max Winkler and others, constituting the Board of Water Commissioners of District No. 1 in the Town of Harrison, in Westchester County, to audit the claim of the relator for services. Appeal from an order of the Appellate Division (130 N. Y. Supp. 691), |