(Supreme Judicial Court of Maine. March 14, Savings Bank. 1917.)

"As a memorial to my late beloved brother C. F. Wentworth, I give to the town of Appleton, in trust however, the sum of six thousand A "public charity" is a gift to be applied dollars which is already on deposit in the Rockconsistently with existing laws for the benefit of land Savings Bank, Rockland, Maine, for the an indefinite number of persons, either by edu- purposes hereafter named and I hereby direct cation or religion, relief from disease, suffering, the executor of this will to deposit such balance or constraint, assistance in establishing themas remains in his hands from sale of said propselves in life, maintaining public works, or otherty after the payment of all legacies and all erwise lessening the burden of government. [Ed. Note. For other cases, see Charities, Cent. Dig. § 1.

no idler, loafer, gambler or drunkard receive | tains all the necessary elements of a public any benefit of said fund."

Then follow provisions as to the method of accounting which are immaterial in this discussion.

[1] The question at issue is the validity of this gift, which must be upheld, if at all, as a charitable bequest. Such bequests are always favorites of the law.

[2, 3] The accepted definition of a "public charity" is that given by the Massachusetts court in a leading case in these words:

"A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature." Jackson v. Phillips, 14 Allen (Mass.) 539-556.

The heirs at law contend in the first instance that this bequest is void for uncertainty. This claim is without foundation, and the authorities cited by the learned counsel for the plaintiffs are clearly to be distinguished.

charity as before defined. The trust is charitable in its nature, the relief of the needy in time of stress, and is created for the benefit of an unascertained, uncertain, and fluctuating body of individuals in which the beneficiaries are a portion or class of a public community. Bequests strikingly similar have been upheld:

"To be 'divided among the poor colored people of the city of Lynn.' Atty. Gen. v. Goodell, 180 Mass. 538, 62 N. E. 962.

"To the suffering poor of the town of Auburn." Howard v. American Peace Soc., 49 Me. 288.

"To the town of Skowhegan for the worthy and unfortunate poor, and to save them from pauperism.' Dascomb v. Marston, 80 Me. 223, 13 Atl. 888.

In fact, gifts far more general and indefinite in their terms have been sustained as charitable bequests. Saltonstall v. Sanders, 11 Allen (Mass.) 446; Weber v. Bryant, 161 Mass. 400, 37 N. E. 203; Everett v. Carr, 59 Me. 325; Fox v. Gibbs, 86 Me. 87, 29 Atl. 940; Dunn v. Morse, 109 Me. 254, 83 Atl.

795.

The intention of the testatrix is clear. She desired that the objects of her bounty should be not the shiftless, nor the intemperate, nor the gamblers, whose poverty could be relieved by the municipality; but those worthy Thus in Chamberlain v. Stearns, 111 Mass. people in her own town whose means fall 267, the trust was to be applied "solely for just short of a comfortable support, and who, benevolent purposes." The court held that though deprived of some of the necessities the word "benevolent," as used in that be- of life, would bear their deprivations in siquest, unqualified and unrestricted by the lence rather than feel the shame of public context, included not only purposes deemed pauperism. They may have seen better days, to be charitable under the accepted legal def- and through misfortune or ill health are inition, but also those objects which bear no brought low financially in spite of their inrelation to a public charity, such as acts dic-dustry, and yet their pride would forbid their tated by kindness, good will, or a disposition to do good, which cannot be deemed charitable in a technical and legal sense. The bequest was therefore held void.

In Nichols v. Allen, 130 Mass. 211, 39 Am. Rep. 445, there was no restriction to the objects of the trust except that they must be "such persons, societies or institutions as they" (the trustees) "may consider the most deserving." The court held that the word "deserving" denoted worth or merit, without regard to need or condition, and was not limited to the persons or the objects that come within the well-recognized class of charitable uses. That bequest was accordingly held void.

[4] These cases illustrate the principle that a trust, which by its terms may be applied to objects not charitable in the legal sense, is too indefinite to be carried out.

[5] In Kent v. Dunham, 142 Mass. 216, 7 N. E. 730, 56 Am. Rep. 667, a trust was created "for the aid and support of those of my children and their descendants who may be destitute, and in the opinion of said trustees need such aid." Here there was clearly no public object, and one element of a public charity was held to be lacking.

being the recipient of public charity. It is this needy class that is embraced within the scope of this bequest, and not only the deserving recipients, but also the manner in which the benevolence is to be carried out, renders the trust a most needed and commendable form of public charity, and one that should be encouraged. Its validity is clear.

[7] In the second place, the heirs attack the validity of this bequest, because, as they allege, the property is devoted to a memorial or monument to the brother of the testatrix. Were this fund to be established for the preservation, adornment, and repair of a private monumental structure, it would indeed be void, as creating a use not charitable. Bates v. Bates, 134 Mass. 110, 45 Am. Rep. 305. But the mere fact that a gift for a charitable purpose is intended by the donor also as a private memorial to some relative or friend does not impair its public character or affect its legal validity. Appeal of Eliot, 74 Conn. 586, 51 Atl. 588; In re Smith Est., 181 Pa. 109, 37 Atl. 114; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401; Atty. Gen. v. Belgrave Hospital, L. R. 1, Ch. Div. 73 (1910); Richardson v. Essex Inst., 208 Mass. 311, 94 N. E. 262, and note

[6] The bequest under consideration con- 21 Ann. Cas. 1159.

After providing for the payment of debts (Supreme Judicial Court of Maine. March 14, and making certain devises and legacies, the

simmons v. Harmon, 108 Me. 456, 81 Atl. 667; and the other authorities cited above.

coupled with "to be distributed and disposed, Allen, 130 Mass. 211, 39 Am. Rep. 445; Fitzof as he pleases," leave no room for doubt as to the testator's intention. They are meant to create a trust, and not to grant an absolute ownership. The legal title is conveyed, but not the beneficial. Perry, Tr. 158; Fitzsimmons v. Harmon, 108 Me. 456, 81 Atl. 667, and note 37 L. R. A. (N. S.) 400. [3] The attempted trust, however, must fail for uncertainty and indefiniteness.

"A trust which by its terms may be applied to objects which are not charitable in the legal sense, and to persons not defined, by name or by class, is too indefinite to be carried out." Nichols v. Allen, 130 Mass. 211, 39 Am. Rep. 445. The bequest in that case was in these words:

"To be by them distributed to such persons, societies or institutions as they may consider most deserving."

The trust was declared void. Other illustrations of the same principle are these: "Upon trust to dispose of the same at such times and in such manner and for such uses and purposes as they shall see fit, it being my will that the distribution thereof shall be left entirely to their discretion." Fowler v. Garlike, 1 Russ. & Mylne, 232.

"Upon trust to pay her debts and legacies and to dispose of the ultimate residue to such objects of benevolence and liberality as the Bishop in his own discretion shall most approve of." Morice v. Bishop of Durham, 10 Ves. 521. "To my brother * in trust to be disposed of by him as I have heretofore or may hereafter direct him to do," and the beneficiaries were disclosed neither in the will nor in any other document that could be regarded as a part of it. Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29.

"In trust * * * to expend solely for benevolent purposes in their discretion." Chamberlain v. Stearns, 111 Mass. 267.

"To distribute the same in such manner as in his discretion shall appear best calculated to carry out wishes which I have expressed to him or may express to him." Olliffe v. Wells, 130 Mass. 221.

"To divide as seems to her best as I have told her my wishes in the matter, mentioning all relatives including my nephews." Fitzsimmons v. Harmon, 108 Me. 456, 81 Atl. 667.

The bequest in the will under consideration, "I leave in trust to Hall J. Staples to be by him distributed and disposed of as he pleases," is certainly no less uncertain and indefinite than the illustrations above given. It cannot be upheld as a charitable trust because the fund is not limited to any use that falls within the scope of a public charity as known to the courts and as defined in Jackson v. Phillips, 14 Allen (Mass.) 539. This definition has been followed and applied in this state in the very recent case of Bills v. Pease, 116 Me. 98, 100 Atl. 146. Clearly, the attempted trust must be held to fail.

Answering therefore the questions propounded by the executor, we would say: First, that Hall J. Staples is not entitled to the residue of the personal estate bequeathed under clause four in the will of Nathaniel McLellan; and, second, that there is a resulting trust in favor of the heirs at law of said McLellan, and that the balance of the estate, after payment of any remaining expenses of administration, should be divided among them under the laws governing the distribution of intestate property in this state.

Bill sustained with one bill of costs for the plaintiff and one for the defendants. Reasonable counsel fees shall also be allowed by the sitting justice to attorneys on both sides, to be paid from the estate and allowed to the plaintiff in his account. Decree accordingly.

Where the court cannot say that there was no evidence which if believed was sufficient to justify a verdict, or that upon all the evidence it is apparent that jury were biased or prejudiced, misconduct, a new trial will not be granted. laboring under a misapprehension, or guilty of

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 135-140.]

Motion from Supreme Judicial Court, York County, at Law.

Action by the Springvale National Bank against George Ashworth. Judgment for defendant, and plaintiff moves for new trial.

Motion overruled.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and MADIGAN, JJ.

[4] Here comes in another well-settled rule that, when a bequest is made in terms clearly manifesting an intention that it shall be taken in trust and the trust is so indefinite that it cannot be carried into effect, the legatee takes the legal title only, and a trust results George A. Goodwin, of Springvale, for by implication of law to the testator's re- plaintiff. Ruggles S. Higgins, of Portland, siduary legatees or next of kin. Nichols v. for defendant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

PER CURIAM. This is an action against [5. LOGS AND LOGGING 17-DRIVING LOGS the alleged indorser of two promissory notes. -INTERMINGLED LOGS-RECOVERY IN QUANThe defendant pleaded the general issue, and, TUM MERUIT. by brief statement, denied the signatures upon the notes, alleged to be his, and filed his affidavit in support of his denial. The gen-pensation after demand and refusal to pay, the uineness of the signature was the chief, if not the only, issue in the case. The jury rendered a verdict for defendant, and plaintiff filed the usual motion for new trial.

[1-4] The grounds upon which new trials may be granted have been exhaustively considered in our decisions. It is not enough that the court might have come to a different conclusion. The credibility of the witnesses and the weight to be given to evidence found credible is for the jury. We are unable to say that there was no evidence, which, if believed, was sufficient to justify the finding of the jury or that upon all the evidence it is apparent that the jury was biased or prejudiced, laboring under a misapprehension or guilty of misconduct.

The motion is therefore overruled.

(116 Me. 107)

WADLEIGH v. KATAHDIN PULP & PA-
PER CO.

In action under Rev. St. 1903, c. 43, § 6, providing that where logs are intermingled with logs of another owner, one may drive all the logs and recover from the other a reasonable comdemand is prerequisite to recovery, and it is error to instruct that if no demand is proved, plaintiff may recover in quantum meruit. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 44-46.]

On motion from Supreme Judicial Court, Penobscot County, at Law.

Action by Moses B. Wadleigh against the Katahdin Pulp & Paper Company. Verdict for plaintiff, and defendant excepts and moves for new trial. Exceptions sustained Argued before SAVAGE, C. J., and KING, BIRD, HANSON, and MADIGAN, JJ.

Gillin & Gillin, of Bangor, for plaintiff. Ryder & Simpson, of Bangor, for defendant.

KING, J. Action to recover compensation for driving certain of the defendant's pulp wood down the Penobscot river to its destiInation at the booms of the company at Lincoln, which pulp wood had become intermixed with the plaintiff's logs in said river so it could not be conveniently separated, and also to recover wages and expenses of

(Supreme Judicial Court of Maine. March 24, the plaintiff's men furnished the defendant

1917.)

1. ACTION ON THE CASE

TRACT.

1-TORT OR CONAn action on the case includes assumpsit as well as an action in form ex delicto. [Ed. Note.-For other cases, see Action on the Case, Cent. Dig. §§ 1-15, 17, 21, 25-30, 32-41. For other definitions, see Words and Phrases, Second Series, Action on the Case.]

2. LOGS AND LOGGING 17-DRIVING LOGS -INTERMINGLING LOGS COMPENSATION NATURE OF ACTION.

Under Rev. St. 1903, c. 43, § 6, providing that any person whose timber in the waters of the state is intermixed with that of another may drive all the timber and is entitled to reasonable compensation from the owner to be recovered after demand in an action on the case, the statutory obligation to pay is predicated on no element of tort, and the action may be in assumpsit as well as ex delicto.

[Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 44-46.]

3. ACTION ON THE CASE 4-DECLARATION -REQUISITES.

In an action on the case, all the facts upon which plaintiff relies must be stated in the declaration.

[Ed. Note.-For other cases, see Action on the Case, Cent. Dig. §§ 42-46.]

to assist in separating the pulp wood from the logs at the sorting gaps at the defendant's booms. The verdict was for the plaintiff for $912.24, of which sum $408 is the amount found by the jury for the driving of the intermixed pulp wood. The case comes up on defendant's exceptions and motions for a new trial.

R. S. 1903, ch. 43, § 6, provides:

"Any person, whose timber in any waters of the state is so intermixed with the logs, masts or spars of another, that it cannot be conveniently separated for the purpose of being floated to the market or place of manufacture, may drive all timber with which his own is so intermixed, toward such market or place, when no special and different provision is made by law for driving it; and is entitled to a reasonable compensation from the owner, to be recovered after demand therefor on said

owner or agent, if known, in an action on the case; he has a prior lien thereon until thirty days after it arrives at its place of destination, to enable him to attach it; and if the owner cannot be ascertained, the property may be libeled according to law, and enough of it disposed of to defray the expenses thereof; the amount to be determined by the court hearing the libel."

The declaration contains three counts. The first is a special count, wherein are set out all the essential facts relied upon by the plaintiff to recover under the provisions of the statute quoted a reasonable compensation for the driving of the pulp wood, and this count also declares specially for the services and expenses of the plaintiff's men furnished to assist at the sorting gaps in separating the pulp wood from the logs and turning it