tors or administrators of such survivor, should in their or his discretion, will, and pleasure, think fit, or as they should think would have been agreeable to him, if living, and as the laws of the land did not prohibit. Sir J. Leach, V. C., observed, that the testator had not fixed trusts in general. (3.) The cy pres power is unsuited to our institutions and has no existence in the jurisprudence of this state on this subject." And in Downing v. Marshall, 23 N. Y. 366: "A charitable donation precise and definite in its purpose, void at law because the beneficiaries are unascertained, may be sustained if there be a competent trustee to take the fund and effectuate the charity." To the same effect, see Sherwood v. American Bible Society, 4 Abb. App. 227, 1 Keyes 561; Goddard v. Pomeroy, 36 Barb. (N. Y.) 546, where Johnson, J., says: "It seems to be now settled that a gift to a charity, if there is a competent trustee, although there is no ascertained or ascertainable beneficiary, may still be upheld, provided the charitable use is so clearly and certainly defined as to be capable of being specifically executed and enforced, as intended by the donor, by judicial decree." In Levy v. Levy, 33 N. Y. 97, rev'g 40 Barb. 585, in the words of Wright, J., p. 121: "A trustee is not necessary to the validity of a trust, for a use being well declared, the law will find a trustee wherever it finds the legal estate; and the definiteness of the purpose of the trust does not make a good use if there is no definite object or beneficiary." See also Paschal v. Acklin, 27 Tex. 196; and an absolute devise to A, with intention that he should apply it to certain charities, he knowing nothing about the devise before the testator's death, is valid, though not enforceable as a trust, Schultz's Appeal, 80 Penna. St. 396. The cases illustrating this rule, and the exceptions to it, may be considered in the following classes: A. Where the legal estate is given in trust to a trustee who is not capable of taking by devise. B. Where the beneficiary is definitely de clared but incapable of taking the legal estate, and no trustee appointed. C. Where there is no trustee appointed, and no beneficiary designated with sufficient certainty. A. The donee of the legal estate is sometimes held incapable of taking because of its corporate character-sometimes because of its want of such character. In addition to the salutary restriction as to quantity of property that may be held by a religious society, mentioned in a previous note to this chapter, the statute in New York, and in some other states, prohibits a devise to a corporation unless it is expressly authorized by its charter or other statute to take property in that way. While in some states, where there is no statute expressly prohibiting a corporation to take by devise, the courts have held it incapable of so doing without legislative authority; see State v. Wiltbank, 2 Harring. (Del.) 18, where it was held that a religious society could not take land by devise for parish church, being only authorized by statute to take by deed; and to the same effect, State v. Walter, 2 Harring. (Del.) 151. In Walker v. Walker, 25 Ga. 420, the American Colonization Society was not allowed to take a devise, for want of express authority in its charter, but in this case the court appointed the executors trustees to carry out the intention of the testator; nor can a foreign corporation, not authorized by laws of Illinois to take by devise, Starkweather v. Am. Bible Society, 72 Ill. 50; nor a domestic religious society, not authorized by statute to take by devise, State v. Warren, 28 Md. 338; Murphy *. Dallam, 1 Bland Ch. 529; but in Massachusetts a foreign corporation is allowed to take by devise, Burbank v. Whitney, 24 Pick. 146. In New York, on the upon any part of the property a trust for a charitable use, and the court could not, therefore, devote any part of it to charity; he had given it to the trustees expressly upon trust, and they could not, therefore, hold it for their own benefit; the purposes of the trust being so other hand, as above mentioned, a corporation cannot take land by devise unless specially authorized by statute, Jackson v. Hammond, 2 Caines' Cas. 337; McCartee v. Orphan Asylum, 9 Cow. 437; Potter v. Chapin, 6 Paige 639; Downing v. Marshall, 23 N. Y. 366; Goddard v. Pomeroy, 36 Barb. 546; White v. How ard, 52 Barb. 294; affirmed, 46 N. Y. 144; Holmes v. Mead, 52 N. Y. 332. This rule, however, does not restrict the power of a corporation to take personal property by will, Sherwood v. Am. Bible Soc., 4 Abb. App. 227, 1 Keyes 561; Am. Tract Soc. v. Atwater, 30 Ohio St. 77. In Leazure v. Hillegas, 7 Serg. & R. 313, Tilghman, C. J., says: "The English Statutes of Mortmain are in part inapplicable to this country and in part applicable and in force. They are so far in force that all conveyances by deed or will of lands, tenements or hereditaments made to a body corporate are void unless sanctioned by charter or act of assembly." It has been held, nevertheless, that the object of such a statute as that of New York, prohibiting a corporation to take lands by devise unless specially authorized to do so, was made to limit testators and not corporations, and therefore the State of Ohio will not give effect to such provision of the State of New York by prohibiting the American Bible Society, incorporated in New York with general power to hold, purchase and convey real property, but not specially authorized to take by devise, from taking by devise in Ohio, Am. Bib. Soc. v. Marshall, 15 Ohio St. 537; Thompson v. Swoope, 24 Penna. St. 474. In general, however, a mere misnomer or misdescription of the corporation intended is construed to be immaterial, if the corporation can be clearly identified. Perry on Trusts, 730; Story Eq. Jur., 1170; Theobald on Wills 185; Brewster v. McCall, 15 Conn. 274; Ayres v. Mead, 16 Conn. 291; Am. Bib. Soc. v. Wetmore, 17 Conn. 181; Craig v. Secrist, 54 Ind. 420; Preachers' Aid Soc. v. Rich, 45 Me. 552; Howard v. Am. Peace Soc., 49 Me. 288; Winslow v. Cumming, 3 Cush. 358; Tucker v. Seamen's Aid Soc., 7 Metc. 188; Sutton v. Cole, 3 Pick. 232; Parker v. Cowell, 16 N. H. 149; Chapin v. School District, 35 N. H. 445; Wright v. Methodist Epis. Ch., Hoffm. Ch. (N. Y.) 202; Banks v. Phelan, 4 Barb. 80; Dickson v. Montgomery, 1 Swan (Tenn.) 348: McBride v. Elmer, 2 Halst. 107; Baldwin v. Baldwin, 3 Halst. Ch. 211; N. Y. Conference v Clarkson, 4 Halst. Ch. (N. J.) 541; Smith v. Smith, 11 C. E. Gr. 139; Minot v. Boston Asylum, 7 Metc. 416; De Camp v. Dobbins, 2 Stew. (N. J.) 36; Leferre v. Leferre, 59 N. Y. 434; Hornbeck v. Am. Bib. Soc., 2 Sandf. Ch. 133; Newall's App., 24 Penna. St. 197; Frierson v. Gen. Ass. Pres. Ch., 7 Heisk. 683; Button v. Am. Tract Soc., 23 Vt. 336; McAllister v. McAllister, 46 Vt. 272. See, too, Kilvert's Tr., 12 L. R., Eq. 183 (1871), where a gift was made to the society for the relief of the widows and orphans of the clergy in the diocese. of W., and there was no such society, but two similar societies, one in each archdeaconry of the diocese, one of the latter took as the legatee intended. See, too, Alchin's Tr., 14 L. R., Eq. 230, where a legacy was given to Kent County Hospital, and there was none such, but a Kent County Ophthalmic Hospital, a Kent and Canterbury Hospital, and a West Kent General Hospital, and the gift was divided between the last two, as together filling the place of a general county hospital. On the other hand, where the trustee named in the will is a voluntary unincor general and undefined, they must fail altogether, and the next-of-kin become entitled. So, in Ellis v. Selby, (8) where a bequest for such charitable or other purposes as the trustees and survivors or survivor of them, his execu porated society, some states have still 7 Allen 243, Chapman, J., says: "It upheld the trusts (and even provide a trustee if the unincorporated body had no officer or other person authorized to receive the gift). See Perry on Trusts, 730; Story Eq. Jur., 1169. See also Carter v. Balfour, 19 Ala. 814; Williams . Pearson, 38 Ala. 299, where Judge Walker says, "it must be regarded as the settled law of this state, that charitable donations are so far exempted from the rules applicable to other trusts, that it is not necessary to their validity that there should be a grantee or devisee, capable of taking and holding by law, or that there should be a cestui que trust so definitely described as to enable a court of equity to execute the trust upon its ordinary principles." Chatham v. Brainard, 11 Conn. 60; Am. Bib. Soc. v. Wetmore, 17 Conn. 181. In Green v. Dennis, 6 Conn. 293, and in Brewster v. McCall, 15 Conn. 274 (both commented on in the later case of the Am. Bib. Soc. v. Wetmore, ubi supra), a voluntary unincorporated society was held to be incapable of taking the legal title, when that alone was in question. So, too, McCord v. Ochiltree, 8 Blackf. 15, where the devisee was a theological seminary, not incorporated, and was held capable in equity of taking, though incapable at law; Cruse v. Axtel, 50 Ind. 49; but contra, Grimes v. Harmon, 35 Ind. 246, cited below; Preachers' Aid Society v. Rich, 45 Me. 552, Tenney, C. J., saying in this case: A bequest to charitable uses to an unincorporated society may be enforced by virtue of the statute of 43 Elizabeth, which has been regarded as a part of the common law of this state, even if it could not be made effectual without that statute." And in Dexter v. Gardner, must be considered as settled that a trust for the use of a well-known religious community (Friends) is valid, though the community may be a voluntary body and not incorporated." In Bartlett v. Nye, 4 Metc. 378, a devise to the Am. Bib. Soc. (which was unincorporated) was held to be valid, so far as to vest the legal title in the persons charged with the said trust. See, too, Tucker v. Seamen's Aid Soc., 7 Metc. 188; Washburn v. Sewall, 9 Metc. 280; Burbank v. Whitney, 24 Pick. 146; Parker v. Cowell, 16 N. H. 149; Wright v. Meth. Epis. Ch., Hoffm. Ch. 202. But not the members of an unincorporated society, Vanderbolgen . Yates, 3 Barb. Ch. 242. It was held in Banks v. Phelan, 4 Barb. 80, in 1848, that an unincorporated Roman Catholic church could take a legacy. And to the same effect see Hornbeck v. Am. Bib. Soc., 2 Sandf. Ch. (N. Y.) 133. Both of the cases last mentioned were, however, overruled in 1856, by Owens v. Miss. Soc., 14 N. Y. 380, which last case has been since followed as the law of New York. In this case it was held that the Methodist Gen. Am. Missionary Society was not a competent trustee. Other states have adhered to the rule above given. See McIntire v. Zanesville C. & M. Co., 9 Ohio 203; Zimmerman v. Anders, 6 Watts & S. 218; Thomas v. Ellenmaker, 1 Pars. Cas. 98. So a gift to a Friends' meeting, Pickering v. Shotwell, 10 Penna. St. 23; or even to a religious unincorporated society without designation of the purpose or use, Judge Strong making a distinction in this case between a natural person and an artificial being having but one and that a charitable object, the (8) 7 Sim. 352, [affirmed 1 My. & Cr. 286.] tors or administrators, should think fit, without being accountable to any person or persons whomsoever for such their disposition thereof, was held not to be a bequest absolutely devoting the property to charity; Sir L. Shadwell, V. C., said, "Here the testator has expressly 2. character of the latter determining the character of the gift, Evangelical Assembly's Appeal, 35 Penna. St. 316; Bethlehem . Perseverance Co., 81 Penna. St. 445. But see contra, an early case (1846), where a conveyance to the (unincorporated) "employers of the school at A," which was a private school and not charity, was held only to vest the equitable interest in the grantees, the legal title remaining in the grantor, Kirk v. King, 3 Penna. St. 436. In Gibson v. McCall, 1 Rich. L. (S. C.) 174, a legacy to an unincorporated church was held valid. So, too, the early case of Magill v. Brown, Bright. 346, and so Burr's Ex'r t. Smith, 7 Vt. 241. To the same effect is Inglis v. Trustees of Sailors' Snug Harbor, 3 Pet. 99, where a devise to the Chancellor of New York, Mayor of New York and others (subsequently incorporated), for the erection of a marine hospital and asylum, was held to be valid, the legal title being subject to the trust until the incorporation of the devisees. See, too, Pawlet v. Clark, 9 Cranch 292, in which case a grant to the unincorporated inhabitants of a town for a church glebe was upheld. Aud a gift for an orphan asylum or other charity to be incorporated, has been frequently held to be valid; see Milne v. Milne, 17 La. (O. S.) 46; Sewall v. Cargill, 15 Me. 414; Shapleigh v. Pillsbury, 1 Greenl. (Me.) 271, where the gift was by grant to the first gospel minister who should settle in A, and the grantor was held to be a trustee until there should be a person in esse to take the grant; Kimball v. Universalist Society, 34 Me. 424; Swasey . Am. Bib. Soc., 57 Me. 526. But see contra, Leonard v. Bell, 1 N. Y. Sup. Ct. (T. & C.) 608. On the like principle are dedications of land to a public use, in See, too, which case it is well established that there need be no certain grantee. See Antones v. Eslava, 9 Port. (Ala.) 527; Bryant v. McCandley, 7 Ohio 135; Cincinnati v.. White's Lessees, 6 Pet. 431; Beatty v. Kurtz, 2 Pet. 566; Dartmouth College v. Woodward, 4 Wheat. 518; Vincennes University v. State of Indiana, 14 How.. 274; Pawlet v. Cranch, 9 Cranch 292; Ould v. Washington Hospital, 5 Otto 303; Witman v. Lex, 17 S. & R. 88. But other states have held a gift to be wholly inoperative when the only person designated as trustee to take the legal title was a voluntary or unincorporated society. Thus in Grimes v. Harmon, 35 Ind. 246, Judge Buskirk, in an able opinion, held a devise to the orthodox Protestant clergymen of D., who were neither organized nor incorporated, to be void. State v. Warren, 28 Md. 338, where a gift to a church, organized but not incorporated, failed on that ground. In the words of Judge Miller, in that case: "As a general rule it is clear that a bequest or devise to an unincorporated association is void and it is only by virtue of that peculiar jurisdiction exercised by courts of equity in regard to charitable uses that such bequests have ever been sustained.” And in Barker v. Wood, 9 Mass. 419, where the devise was to the inhabitants living in the parish of B., which was not incorporated; or to a town for inadmissible charitable purposes, Chapin v. School Dist., 35 N. H. 445; or any unincorporated society, Owens v. Miss. Soc., 14 N. Y. 380; Downing v. Marshall, 23 N. Y. 366; Sherwood v. Am. Bib. Soc., 4 Abb. App. 227, i Keyes 561; or an indefinite body, such as "the people of the United States," Levy v. Levy, 33N. Y. 97; White v. Howard, 52 Barb. 294, affirmed 46 N. Y. 144; Holland r. 1 drawn a distinction between charitable purposes and other purposes; and I must, therefore, take it that he meant either charitable purposes or purposes not charitable; but whether the purposes not charitable were to be purposes which might give a beneficial interest to the trus Peck, 2 Ired. Eq. (N. C.) 255. In Meth. Epis. Church v. Remington, 1 Watts 218, it was held that the gift to an unincorporated religious society would have been valid if all the members had resided in Pennsylvania. In the following cases also, gifts were held void where the donee was an unincorporated body: White v. Hall, 2 Cold. (Tenn.) 77; Heiss v. Murphy, 40 Wis. 276; Ruth v. Oberbrunner, 40 Wis. 238. It may be added that a municipal corporation is in general considered capable of taking as trustee for public uses in the town, such as street improvements, public buildings, relief of the poor, &c. See Fellows v. Miner, 119 Mass. 541; Webb v. Neal, 5 Allen 575; Sutton v. Cole, 3 Pick. 232; or for the benefit of poor emigrants, Chambers v. St. Louis, 29 Mo. 543; for the support of the ministry, Bapt. Soc. v. Wilton, 2 N. H. 508; for administering a fund given for the purchase and display of United States flags, Sargent v. Cornish, 64 N. H. 18; Philadelphia v. Elliot, 3 Rawle 170; for erecting a hospital for the indigent, blind and lame, Perin v. Carey, 24 How. 465; for support of orphans and for schools, Vidal v. Girard's Heirs, 2 How. 127. And only the state as parens patriæ can question the right of a municipal corporation to accept and administer such trust, Girard's Heirs v. Phila., 7 Wall. 1; Vidal v. Girard's Heirs, 2 How. 191. B. The rule may be considered as established that equity will not suffer a trust, charitable or otherwise, to fail for want of a trustee. Story Eq. Jur., 1169; 2 Redfield on Wills 630. On this head Mr. Perry, in his work on Trusts, 731, says: "If a testator creates a trust for a particular charitable purpose as for a school, hospital, almshouse, church, or other institution, and points out all the details, so that there is certainty in the purposes and objects of the charity, and appoints no trustees, or if the trustees fail for any reason, courts will appoint other trustees, for such is the plain intention of the donor; and it is a maxim of courts never to allow a certain and valid trust to fail for want of a trustee. In such cases, the courts say that there is no ground to suppose that the discretion of any particular trustee has anything to do with the essence of the gift. Again if a testator makes a bequest for a charitable use in the most general and indefinite terms, and appoints trustees to exercise their discretion in selecting the objects and in reducing the general intent to a particular and practical application, and such trustees fail for any reason, without having exercised their discretion or power of appointment in reducing the general and indefinite charity to a practical certainty of administration, courts will be governed by the intention of the donor, in determining whether they will appoint other trustees to exercise the power given to the first trustees named in the will. If the power given to the first trustees is a personal trust and confidence, the court should not appoint other trustees to exercise that power, contrary to the intention of the donor; but the court ought to act upon liberal principles of construction in finding such intention. If a testator makes a general and indefinite bequest to charity, or to the poor, or to religion, and appoints no trustee, but plainly refers such appointment to the court, there would seem to be no impropriety in the court appointing a trustee, according to the plain intent of the donor, leaving such trustee to find his power in the will of the donor. But if a testator makes a |