This is a proceeding commenced by a trustee for construction of a last will and testament to determine the disposition of a charitable bequest.

The last will and testament of decedent Samuel Wunsch was admitted to probate by a decree of this court dated July 14, 1980. Paragraph FOURTH of the will bequeaths $100,000.00 to each the following to establish a fund for a specific purpose: 1) Polytechnic Institute of New York; 2) Community Hospital of New York; 3) Wunsch Animal Welfare Fund, Inc.; and 4) the Council for the Arts, Glen Cove.

The bequest to the Council for the Arts provides:

E) I give and bequeath the sum of One Hundred Thousand Dollars ($100,000.00) to the Council for the Arts at Glen Cove, Glen Cove, New York, to be known as the Samuelsie Wunsch Fund, subject to the following conditions:

(1) The income from the Fund shall be used for the operation of the Wunsch Arts Center, or

(2) In the event that it is determined by the Board of Directors of the Council to be in the best interests of the Wunsch Arts Center, the entire Fund or any part or parts thereof may be used for the purchase of equipment or for the capital construction, provided that the said equipment or construction is appropriately identified in a permanent manner as having been provided by the Samuelsie Wunsch Fund.

The will creates a trust for the benefit of the spouse, remainder to be divided equally among the charitable beneficiaries. Article "EIGHTH" provides:

(2) upon the death of my wife, to pay over and distribute the then balance of principal and income of such trust to the organizations and for the purposes set forth in paragraph "Fourth" hereof, in equal shares, and subject to all of the terms and conditions. If any of the remaindermen named in the previous sentence of this clause is not an organization described in Section 170 (c) of the Internal Revenue Code of 1954, as amended, at the time when any principal or income of the trust is to be distributed to it, its share shall be divided among those of the remaindermen therein mentioned who are organizations described in Section170(c) and if none of such remaindermen is an organization described in Section 170(c) at the time when any principal or income is to be distributed to it, the Trustees shall distribute such principal or income to one or more organizations then described in Section 170(c) as the Trustees shall select in their sole discretion. If any organizations named in Paragraphs "FOURTH," "FIFTH," "SIXTH" and "SEVENTH" would not qualify as a remainderman under this paragraph, the bequest to such organization shall be void.

The Wunsch Arts Center is actually the auditorium of the Robert M. Findley School, Glen Cove. The submissions in support of the petition indicate that the Council no longer has tax exempt status and in fact has ceased operation. Petitioner seeks an order appointing the Glen Cove school district as a trustee to distribute the funds for equipment or capital construction to improve the Wunsch Art Center. The Attorney General of the State of New York has appeared and raises no objection.

An absolute gift to a charitable corporation for a restricted purpose creates an implied trust, not a technical trust (Sherman v Richmond Hose Co., 230 NY 462 [1921]; Lefkowitz v Cornell University, 35 AD2d 166 [4th Dept 1970]) affd 28 NY2d 876 [1971]). The question here is whether there can be a substitution of the charitable corporation which was designated as a beneficiary.

The testator provided a gift over if the council was not a tax-exempt organization at the time for distribution of the remainder. As this event occurred, the gift over takes effect. Where the testator directs a gift over, the doctrine of cy pres cannot be applied to designate a substitute [*2]charity (Matter of Zumstine, 23 Misc 2d 305 [Sur Ct, Nassau County 1960] affd 13 AD2d 780, affd 10 NY2d 957]; Matter of Dunton, 28 Misc 2d 939 [Sur Ct, Suffolk County 1961]).

It is noted that as to the other bequests in Article "FOURTH," the designated charitable organization or institution was given control of the funds. By contrast, the testator declined to place the bequest in question under the supervision of the school district. The funds cannot be turned over to the school district as trustee, even though this would result in achieving the testator's objective, which was to benefit the students of the school district. The testator conditioned the gift upon the existence and operation of the Council as a charitable organization and his intention must prevail.

Accordingly, the funds designated under "EIGHTH" for distribution to the Council for the Arts, are to be distributed in equal shares to the remaining charitable beneficiaries named in Article "FOURTH," provided the beneficiaries meet the requirements set forth in the will.

Settle decree.