tees, or some other purposes, the testator has nowhere made clear. It is uncertain whether the trust was to be for charitable purposes or for vague and indefinite gift to charity, and names no trustee, and gives no power to the court to appoint, there is no power in the American courts to administer such an inchoate and imperfect gift." See, too, Williams v. Pearson, 38 Ala. 299. In the words of Walker, J., in this case: "Where an ascertainable object recognized as charitable is designated by the donor in general or collective terms, as the poor of a given county or parish, or the clergymen of a particular denomination having charge of churches within a specified district, the gift or legacy will be upheld by courts of equity. Nor is it any objection to the validity of such a gift that the donor has appointed no trustee or that the trustee appointed is incapable of taking the legal interest. If the object of a charitable donation can be ascertained the want of a trustee will be supplied by appointment by a court of equity," Bull v. Bull, 8 Conn. 47 (where the trustees named were dead); Treat's Appeal, 30 Conn. 113; Birchard v. Scott, 39 Conn. 63; Walker v. Walker, 25 Ga. 420, where the devisee (the American Colonization Society) was held unable to take for want of express authority in its charter, and the court appointed trustees; Preachers' Aid Society v. Rich, 45 Me. 552; Swasey v. American Bible Society, 57 Me. 526. So where the corporation named as trustee was dissolved before testator's death, Bliss v. American Bible Society, 2 Allen 334; Brown v. Kelsey, 2 Cush. 243. So where the donee was a voluntary society, dissolved before testator's death, Winslow v. Cumming, 3 Cush. 358; North Adams v. Fitch, 8 Gray 421; Washburn v. Sewall, 9 Metc. 230; Sanderson v. White, 18 Pick. 328; Mason v. Methodist Episcopal Church, 12 C. E. Gr. 47; Shotwell v. Mott, 2 Sandf. Ch. 46. In the words of Mr. Justice Wright, in Levy v. Levy, 33 N. Y. 121, "A trustee is not necessary to the validity of a trust, for, a use being well declared, the law will find a trust 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." In Urmey v. Wooden, 1 Ohio St. 160, it was held that the court would provide a trustee for a gift "to the use of the poor and needy" of a township. In McGirr v. Aaron, 1 Penr. & W. (Pa.) 49, a charitable gift to a Roman Catholic priest of an unincorporated church was not allowed to fail for want of a trustee. See, too, McLain v. School Directors, 51 Penna. St. 196; Zeiss weiss v. James, 63 Penna. St. 465; Burr's Ex'r v. Smith, 7 Vt. 241; Stone v. Griffin, 3 Vt. 400. See, too, McAllister v. McAllister, 46 Vt. 272, where a gift for the education of the freedmen, with no trustee named, was sustained. But in New v. Bonaker, 4 L. R., Eq. 655, a bequest to the President and Vice President of the United States, and the Governor of the State of Pennsylvania for the time being, to endow a college for instruction in moral philosophy, and for the advocacy of the natural rights of the negroes to civil equality, was suffered to fail for want of a trustee, on refusal of the United States government and the Governor of Pennsylvania to accept the trust, it being held that the whole object failed with the refusal of the designated trustees. C. Where there is neither competent trustee nor definite beneficiary in accordance with the foregoing rules, the gift, though charitable, will generally fail, Ayres v. Methodist Church, 3 Sandf. (Super. Ct., N. Y.) 351; Beekman v. Bonsor, 23 N. Y. 298; Bridges v. Pleasants, 4 Ired. Eq. (N. C.) 26; Gallego v. Att.Gen., 3 Leigh (Va.) 450. For further on this whole subject of indefiniteness, see the note at the end of this section, on the jurisdiction of the English Court of Chancery. purposes not charitable. Then it is nothing more than if he had given an estate to A or to B, which would be void: and my opinion is, that the gift of this portion of the personal estate is void for uncertainty.” So in Williams v. Kershaw, (t) the testator directed his trustees to apply the residue of his personal estate to and for such benevolent, charitable and religious purposes as they in their discretion should think most advantageous and beneficial. It was decided by Lord Cottenham, when M. R., that the gift was void for uncertainty. 4 [And in Kendall v. Granger, (u) where the trustees were directed to dispose of the residue for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging undertakings of general utility, in such mode and proportions as their own discretion might suggest, irresponsible to any person or persons whatsoever; Lord Langdale, M. R., decided that the gift was void for uncertainty. He said that to make the bequest valid, it must be obligatory on the trustees to apply the whole (x) of it in charity; it was not a question [(t) 5 L. J. (N. S.) Ch. 84,] 5 Cl. & 446; Chamberlain v. Stearns, 111 Mass. Fin. 111. 267. In this case, Judge Gray says: "The word 'benevolent' of itself without anything in the context to qualify or restrict its ordinary meaning, clearly includes not only purposes which are deemed charitable by a court of equity but also any acts dictated by kindness, good will or a disposition to do good, the objects of which have no relation to the promotion of education, learning or religion, the relief of the needy, the sick or the afflicted, the support of public works or the relief of public burdens, and cannot be deemed charitable in the technical and legal sense." "On the other hand it has been held by this court and the House of Lords that benevolent' when coupled with charitable' or any equiva lent word or used in such connection or applied to such public institutions or cor porations as to manifest an intent to make it synonymous with charitable must have effect according to that intent." 4. In Norris v. Thomson, 4 C. E. Gr. (N. J.) 307, affirmed 5 Id. 489, a gift to "such benevolent, religious or charitable institutions as executor may think proper" was held to be indefinite and void. In the words of Zabriskie. C.: "It is conceded that by the English decisions the words 'charitable and religious' are sufficiently definite, and it is contended that by the same authorities the word 'benevolent' is not, and that a gift to benevolent objects or benevolent institutions is void. The word benevolent is certainly more indefinite and of far wider range than charitable or religious; it would include all gifts prompted by good will or kind feeling towards the recipient, whether an object of charity or not. The natural and usual meaning of the word would so extend it. It has no legal meaning. The word 'charitable' has acquired a settled limited meaning in law, which confines it within known limits." See also, to the same effect, DeCamp r. Dobbins, 2 Stew. (N. J.) 36; Adye r. Smith, 44 Conn. 60; Saltonstall r. Sanders, 11 Allen [(u) 5 Beav. 303. See also Thomson v. Shakespear, John. 612, 1 D., F. & J. 399; In re Jarman's Estate, 8 Ch. D. 584 (x) See James v. Allen, 3 Mer. 17. whether the trustees might apply the fund to a charitable purpose, but whether by the words of the will they were bound to do so. To make the bequest valid it must be obligatory on them; he thought there were older cases, showing that where charitable purposes were mentioned, the court would have taken care that the application should have been made to those purposes, but he was bound by the later decisions. Nor will the addition of an ascertained object to the charitable and the indefinite objects save the trust: for consistently with the will the whole might still be applied to the indefinite object. Thus, in Down v. Worrall, (y) where the trust was for charitable or pious uses at the discretion of the trustees or otherwise for the benefit of the testator's sister and her children; one of the trustees died while part of the fund was still unappointed, (z) and Sir J. Leach, M. R., held that the unappointed part was undisposed of and belonged to the next-of-kin. Such being the rule, the terms of the trust will first be closely examined to see whether, though not the most correct or Charity held pose, notwith the sole pur standing doubtful expressions. most appropriate for describing only a charitable object, they ought not in fair construction to be so confined. Thus, in Dolan v. Macdermot, (a) where the trust was to lay out "in such charities and other public purposes as lawfully might be in the parish of T.," as the trustees should think proper, it was held that the words "other public purposes" meant purposes ejusdem generis, i. e. charitable, and that they were used only as filling up a description of purposes which, although charitable within the statute Eliz. (and in *that sense included in "charities") were not within the popular meaning of the word "charities.” Again, in Pocock v. Att.-Gen., (b) where a testator, after giving several charitable legacies out of a particular fund, directed the residue of it "to be given by his executors to such charitable institutions as he should by any future codicil give the same, and in default of any such gift, then to be distributed by his executors at their discretion;" the testator made no further codicil, and it was held that the direction in favor of charity ran through the whole sentence: that the testator (y) 1 My. & K. 561. That "pious" uses are not charitable, see Heath v. Chapman, 2 Drew. 417. (2) No question was raised regarding the appointed part, but according to the cases, the bequest was void as to the whole. (a) L. R., 5 Eq. 60, 3 Ch. 676. Consult Ellis v. Selby as to the effect of omitting the word "public." (b) 3 Ch. D. 342. Cf. Wheeler v. Sheer, Mos. 288, cit. 1 Mer. 91, 97. intended to choose the charitable institutions himself, but that if he failed to do so his executors were to choose them. The foregoing cases, where the gifts were held void for uncertainty, must be distinguished from those where the bequest is for Distinction where the gift is for charit able and other jects, though apportionment left to trustees. a charitable purpose, and for another ascertained object; ascertained ob- for here, even though the amount to be devoted to each object be not specified, and the apportionment be left to the discretion of trustees, yet the trust is such that the court can control the execution of it so far as to see that the trustees appropriate no part of the benefit to themselves; whereas in the former cases the non-charitable object, (which may absorb the whole,) is so indefinite as to be wholly beyond the control of the court; and to hold that such a gift is valid, would be in effect to hold the trustees entitled for their own benefit. 5 5. The reader's attention is called to the following English cases where the question has been as to the disposition to be made of a surplus after paying the amount specifically given to charity—this surplus generally arising from increase of the income of the fund: Mayor and Council of Beverly v. Att.-Gen., 6 H. L. Cas. 310 (1857). In this case there was a devise in trust of a farm, renting then for £47, to pay £10 per annum to one charity, £10 to another charity, and £20 to a third charity after life estate to testator's sister and as to taxes, "which the trustees cannot spare out of the overplus of rent, viz. £7 (for the farm is now let for £47,)" shall be taken out of the first two gifts. The income having increased to £180, it was held that the trustee (the municipal corporation) was entitled to take the excess over £40 beneficially, following the case of South Molton, 5 H. L. Cas. 1, and reversing the Master of the Rolls, 15 Beav. 540. This case was followed in 1860 by that of the Att.-Gen. v. Dean of Windsor, 8 H. L. Cas. 393, which was a devise in the will of Henry VIII. to the Dean, &c., of Windsor, charged with specific sums to be paid to the Poor Knights of Windsor, and the income having greatly increased, the Dean, &c., took the increase beneficially. In 1866, in the case of the Att.-Gen. v. Marchant, 3 L. R., Eq. 424, where the whole fund was given to charity in amounts named, it was declared to be the general rule that the increased income of the fund should be divided pro rata among the charities, subject, however, to the discretion of the court. In 1871, in the case of the Mcht. Taylors' Co. v. Att.-Gen., 6 L. R., Ch. App. 512, a devise was made to the company to the intent and upon the condition that they provide twelve poor men and twelve poor women with certain garments, at specified prices, and accumulate residue of income, and repair, and, when necessary, rebuild the premises devised. Here the company was held to take all increase of income as trustee for charity, affirming 11 L. R., Eq. 35, and distinguishing the case from that of the wax chandlers, which was, however, afterwards reversed and made to conform to this decision. In 1873, in the case of the Att.-Gen. v. Wax Chandlers' Co., 6 L. R., H. L. 1, reversing 8 L. R., Eq. 452, a like decision was reached as to increase of income of a devise to distribute £8—£7 15s. to charity, and 5s. to the corporation. This case can be readily distinguished from that of the Mayor and Council of Beverly v. Att.-Gen., first above cited, as clining to donees take The objects among whom the trustees are to apportion the testator's bounty being sufficiently definite, are not to be disap- Trustees depointed by the trustees refusing to exercise their power or apportion, dying before doing so. In such event, the court will equally. divide the fund equally among the several objects, upon the principle that equality is equity. Thus, in Att.-Gen. v. Doyley, (c) where a testator directed his trustees and the survivor, and the heirs of such survivor, to dispose of his property to such of his relations of his mother's side as were most deserving, and for such charitable purposes as they should also think most proper: one of the trustees declined to act, and Sir J. Jekyll, M. R., directed that one-half of the property should go to the testator's relatives on the mother's side, and the other half to charitable uses. So, in Saulsbury v. Denton, (d) where a testator bequeathed a fund to be at the disposal of his widow by her will, therewith *to apply a part to the foundation of a charity school or such other charitable endowment for the poor of O. as she might prefer, and under such restrictions as she might prescribe; and the remainder to be at her disposal among the testator's relatives as she might direct: the widow having died without exercising her power of apportioning the fund, it was held by Sir W. P. Wood, V. C., that the gift was not void, but that the court would divide the fund in equal moieties. In Adnam v. Cole, (e) where a testator bequeathed the residue of his personal estate (consisting partly of leasehold property) to trustees upon trust to lay out the same in building such a monument to his memory as they should think fit, and in building an organ gallery in the parish church, it was held by Lord Langdale, M. R., that the trustees had not rightly exercised their discretion in applying the whole to the monument, and he referred it to the master to ascertain in what proportion the residue ought to be divided between the two objects. This case, it will be observed, differs from the preceding, in the mode of division adopted by the court; the specific nature of the objects enabling the court to apportion the fund between them without resorting to the expedient of cutting the knot by equal division. But the that was not a devise in trust, but an absolute gift with a condition to do a specific thing. (d) 3 K. & J. 529. (e) 6 Beav. 363. The trust for building the organ gallery failed of course (c) 4 Vin. Abr. 485, 2 Eq. Cas. Ab. under 9 Geo. II., c. 36, so far as it depended 194, 7 Ves. 58, n. on the leaseholds. |