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profit and increase from her work, and gain from the use of her estate. If they are to be so limited in her favor, they may easily, as in this instance, become not merely enabling statutes for her benefit, but also in her hands instrumentalities of fraud.

Upon the precise question presented, the opinion of the court below assumes that the decisions of other courts are conflicting; but we are referred to no case in this court where a woman has successfully asserted her coverture as a defense to an action for the price of goods purchased by her, and I am unable to see why, as against creditors, she should be permitted to interpose the mere form of her promise as an obstacle to their recovery. It is settled that the things which the statutes above referred to permit her to do in person, she may also do by another as her agent. This is necessarily so, for she is allowed to act in respect to them as if unmarried; and it cannot be doubted that the improvement of her land, or the management of her personal property, whether for preservation or business, may be conducted by her by means of any agency which any other owner of property might employ, and that the produce and increase thereof will be hers. Knapp v. Smith, 27 N. Y. 278: Abbey v. Deyo, 44 id. 344. So she may do those things through her husband as her agent. Abbey v. Deyo, supra; Rice v. Smith, 45 N. Y. 230. She may also have such a community of interest with him in relation to real estate as will render her liable for his frauds relating to it; and when he, professing to act as her agent, makes false representations, although without her knowledge, and she receives the proceeds, she cannot retain the fruits of his frauds. Beach, 96 N. Y. 398.

Krumm v.

Again, as to all contracts relating to her separate estate, or made in the course of her separate business, she stands at law on the same footing as if unmarried, and can therefore make negotiable paper which will be governed by the law-merchant, and can be sued upon in the ordinary way by general complaint, and without special statements. Frecking v. Rolland, 53 N. Y. 422. Nor can she escape liability because she and her husband are joint makers of the note sued on.

In Frecking v. Rolland, supra, the action was upon a joint promissory note signed by the defendants, who were husband and wife. He set up usury, and she set up coverture. The court directed a verdict for the wife, and the jury directed a verdict against the husband. The creditor appealed. The General Term affirmed the verdict in favor of the wife, and the creditor appealed to this court. Against the appeal it was argued (1), that being a married woman, she was not liable for the note in suit; (2) that the complaint being general, and not specific, was insufficient to charge her property. Neither objection prevailed, and the judgment in her favor was reversed. There the husband, acting for himself, and as the agent of his wife, borrowed money with which to pay for a factory bought by her. The money was loaned to them, and was in part so applied. The note was given for the money loaned and for services. The court, in answering the defendant's objections, show that the capacity of a married woman to make contracts relating to her separate business is incident to the power to conduct it, for the latter would be barren and useless if disconnected with the right to conduct it in the way and by the means usually employed. In the case cited she became a joint contractor with her husband, but she was as much bound to perform the joint engagement as if the undertaking had been several, and she did not escape liability because her joint contractor was her husband. It was not necessary to inquire in that case whether the one paying could obtain contribution from the other, nor is it necessary to go into that question here. In that case both un

dertook to pay the creditor; in this case both undertook to pay the creditor. Can it make a difference in the measures of liability that in one case the married woman entered in her own name and her husband in his name in the execution of a joint obligation, and in the other case a name which represents also joint liability, but which may in effect also be several?

Partners are at once principals and agents. Each represents the other, and if in the relation of partnership, there are obligations which a married woman cannot enforce against her husband, or the husband against the wife, they involve no feature of the present action which asserts only the obligation of a debtor to discharge her debt, or the obligation of a promisor to fulfill her promise.

More like the present case is that of Scott v. Conway, 58 N. Y. 619, where in an action for the price of labor and materials supplied to a theater carried on by Sarah T. Conway and her husband, Frederick B., under the name of "Mrs. F. B. Conway's Brooklyn Theater," and in which the wife and husband were jointly interested, it was held to be no defense against one who dealt with her in ignorance of the partnership, that she had a dormant partner, and that the rule was not changed by the fact that the partner was her husband.

In Bitter v. Rathman, 61 N. Y. 512, it was held that a married woman who in secret trust for her husband becomes a member of a copartnership, is to be regarded as the owner of the interest she represents, and might maintain an action for the dissolution of the copartnership, and for an accounting. The defendant in that case denied that she was a partner, and claimed that he alone was interested in the business; claiming, that being a married woman, she could not in law be his partner. The court held otherwise, and also, that having suffered herself to be regarded by the public as a partner, she was liable as such to the creditors of the ostensible firm, although it might be otherwise as regarded her husband and his creditors, but as to any liabilities of the ostensible firm she would be entitled to protection as against the defendant and her husband.

It would seem therefore that by becoming a partner either with a husband or another person, a married woman loses no right of property. And no principle is suggested upon which her estate can be increased at the expense of creditors, nor how either in her own name, or in her own name and that of another, or with another, she can purchase goods on credit to the advantage of her separate estate, and not become liable for its payment.

In Coleman v. Burr, 93 N. Y. 17, cited by the appellant, the sole question was whether the conveyance of property, by the husband to his wife was sustained by a consideration good as against his creditors who impeached it. Here the wife was as capable of contracting as if she had been unmarried-as capable of adding to her estate by fresh acquisitions; and she should not be permitted to escape payment by joining to her own name that of her husband, or by combining the two into a firm or partnership name. by that name she chose to contract, and as between herself and creditor she is bound by it. Individuals may be liable as partners to third persons, while as between themselves they are not.

It was

Here then the question is not between husband and wife. Assume that as to and with him she has no capacity, it by no means follows that she shall not be held upon a contract made by him upon a consideration moving to her, where a third person, who parted with that consideration in reliance upon the husband's apparent agency, seeks to enforce the contract. If the adoption of a firm name was a mere contrivance to carry on the business jointly, and at the same time to

put the property acquired and added to the wife's separate property out of the reach of creditors dealing with either bona fide as the partner of the other, it should not be permitted to have that effect. If as the testimony shows, the wife was the sole owner of the property, that the husband had no interest in it, but that for convenience they were doing her business in the name of J. P. Kinney & Co., her liability for a debt contracted in that name is entirely consistent with the fact, if it be a fact, that as between the parties themselves no partnership exists.

This is so, although the plaintiff alleges in the complaint that the defendants are partners, and that allegation is not denied. For the purposes of the action it may be true. The plaintiff gave credit to them as such, but the goods be sold were intended by them to be annexed to the wife's separate estate, and they were so annexed. If the arrangement was valid between all parties, there is no pretense of a defense. If invalid only as between the defendants, the wife, who received the fruits of the transaction, cannot, as against a creditor, assert its invalidity. Although married, she may be estopped by her acts and declarations in any matter in respect of which she is capable of acting sui juris. Bodine v. Killeen, 53 N. Y. 93. In this instance the plaintiff proved the contract, that it was made by her authorized agent, and that it had reference to the improvement and benefit of her separate estate. She had capacity to do all these things, and if the arrangement which led to the use of her husband's name as joint promisor or partner was beyond her power to enter into, she must meet that liability without regard to any question whether her husband is also liable, or as to what, rights of indemnity or otherwise she might have against him. She was a principal, and he was her agent. He neither exceeded his power, nor were her acts to his prejudice, and if by reason of any technical capacity, they could not contract with each other or together, as constituting that artificial entity, a firm or copartnership (a question we do not decide), she is liable, and the contract enforceable against her in favor of the plaintiff, whose property has been added to her estate upon the strength of a promise made in her name by her authorized agent.

We think the court erred in directing judgment for the defendant. It should be reversed, and the plaintiff have judgment upon the verdict.

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A person who solicits o takes orders for spirituous liquors in this State, to be delivered at a place without this State, knowing or having reasonable cause to believe that if so delivered, the same will be transported to this State and sold in violation of the laws thereof, cannot recover the price of such liquors in the courts of this State, although the sale may be lawful in the State where it takes place. The rule of comity does not require a people to enforce in their courts of justice any contract which is injurious to their public rights, or offends their morals, or contravenes their policy, or violates public laws. Comity will not extend the remedy offered by the laws of this

State to enforce a contract valid in the State or country where it is made, when it is tainted by the illegal conduct within this State of the party seeking to enforce it. SSUMPSIT to recover a balance due for the sale of wines and spirituous liquors. Plea, the gen

eral issue with a brief statement that the contract was void under Gen. Laws, chap. 169, § 18. Facts found by the court.

The plaintiffs were liquor dealers in Boston, and the defendant a saloon keeper in Suncook, at the time of the sale of the liquors in suit. The plaintiffs' agent solicited orders for the liquors in the defendant's saloon, and forwarded the orders to the plaintiffs in Boston, having no authority to make a contract for their sale. He informed the defendant that the liquors would be delivered to him at the plaintiffs' store-room in Boston. When he solicited the orders he had no knowledge of the provisions of section 18, chapter 109, General Laws, and did not intend the violation of any law of this State. He knew at the time of the sale that the defendant bought for the purpose of selling in violation of law. The liquors were delivered to carriers in Boston, for the defendant, and he paid the cost of transportation from Boston to Suncook where he received them. Their sale was authorized by the law of Massachusetts.

The plaintiffs claimed that the sale being valid by the law of Massachusetts, the law of this State prohibited the taking or soliciting of orders did not invalidate it. They further claimed, that as the statute prohibits the taking of orders for spirituous or distilled liquors only, they can recover for the wines. There was evidence tending to show that the wines were intoxicating.

Bingham & Mitchell and E. F. Jones, for plaintiffs. Albin & Martin, for defendant.

SMITH, J. It is made a criminal offense for any person not an agent to sell or keep for sale spirituous liquors, or for any person within this State to solicit or take an order for spirituous liquors to be delivered to any place without this State, knowing or having reasonable cause to believe that if so delivered the same will be transported to this State, and sold in violation of our laws. Gen. Laws, chap. 109, §§ 13, 18. One question in this case is, whether intoxicating wines are included within the terms of this statute? The Legislature has defined intoxicating liquor as follows: By the words 'spirit,' 'spirituous,' or 'intoxicating liquors,' shall be intended all spirituous or intoxicating liquor and all mixed liquor any part of which is spirituous or intoxicating, unless otherwise expressly declared." Gen. Laws, chap. 1, §§ 1, 31. As intoxicating wines and other intoxicating fermented liquors are not expressly excluded from the operation of the sections 13, 18, 19, chapter 109 of the General Laws, the only conclusion is that they come within the prohibition of its terms. No reason appears why the Legislature should prohibit the solicitation of orders for oue class of intoxicating liquors and permit it as to others. The construction of statutes is governed by legislative definitions; that of indictments by the ordinary use of language. State v. Adams, 51 N. H. 568; State v. Canterbury, 28 id. 195.

The remaining question is, whether the plaintiffs can maintain an action in our courts for the price of liquors sold and delivered in a State where the sale is lawful, they having solicited and taken orders for the liquors in this State in violation of our laws. That their authorized agent, who solicited and took the orders, did not know the solicitation or taking of orders was prohibited, and did not intend the violation of any law, is immaterial. A person is presumed to know and understand not only the laws of the country where he dwells, but also those in which he transacts business. In Hill v. Spear, 50 N. H. 253, it was held by a majority of the court, that mere solicitations by a dealer in liquors of orders in the future for spirituous liquors, even though he may have had

reason to believe and did believe that the liquors would be resold by the purchaser in violation of the laws of this State, is not such a circumstance as will affect the validity of a subsequent sale of such liquors in a State where the sale is not prohibited. Numerous decisions in England and in this country upon the subject were cited and discussed in that case, and an extended review of most of the same authorities may be found in Tracy v. Talmadge, 14 N. Y. 162. Further discussion of the authorities is not called for at the present time. When Hill v. Speur was decided, the soliciting of orders for spirituous liquors to be delivered without the State was not prohibited. The present statute (Gen. Laws, chap. 109, §§ 18, 19), first enacted in 1876 (Laws 1876, chap. 33), makes the mere soliciting or taking of such orders, or the going from place to place soliciting orders or taking such orders with knowledge or reasonable cause to believe that the liquors will be transported to this State and sold in violation of law, without any other act in furtherance of the vendee's design, a criminal offense, punishable by fine or imprisonment. The plaintiffs' authorized agent, who solicited and took those orders from the defendant, knew the liquors were to be kept and sold by the defendant in this State in violation of law. His knowledge is in law the knowledge of the plaintiffs.

The plaintiffs contend, that inasmuch as the soliciting of orders constituted no part of the contract when the soliciting was not prohibited, the act of soliciting, now that it is made illegal, cannot vitiate a contract of which it forms no part. The case is not affected by the plaintiffs' ability to prove a sale without proof of the solicitation. No people are bound to enforce or hold valid in their courts of justice any contract which is injurious to their public rights, or offends their morals, or contravenes their policy, or violates public law. And every independent community will judge for itself how far the rule of comity between the States is to be permitted to interfere with the domestic interests and policy. 2 Kent Com. 457, 458; Hill v. Spear, 50 N. H. 253, 262; Bliss v. Brainard, 41 id. 256, 258. The object of the statute of 1876 (Gen. Laws. chap. 109, §§ 18, 19), was to discourage the sale of liquor in other States to be transported to this State and sold in violation of its statutes. New Hampshire cannot prohibit the sale of liquor in other States, but it can punish, as it does, by this statute, acts done in this State with the purpose of facilitating sales of intoxicating liquors in other States to be transported to this State, and to be illegally sold here, in contravention of our policy, and to the injury of our citizens. The statute was intended to make such sales and transportations difficult, if not imposible, by subjecting those who violate its provisions to the penalty of fine or imprisonment. Where a statute provides a penalty for an act, this is a prohibition of the act. In Bartlett v. Vinor, Carth. 252; S. C., Skinn, 322, Holt, C. J., said: "Every contract made for or about any matter or thing which is prohibited or made unlawful by any statute is a void contract, though the statute does not mention that it shall not be so, but only inflicts a penalty on the offenders, because a penalty implies a prohibition though there are no prohibitory words in the statute." Accordingly, it is everywhere held that wherever an indictment can be sustained for the illegal sale of liquors or other goods, there the price cannot be recovered (Bliss v. Bancroft, 41 N. H. 256,268; Smith v. Godfrey, 28 id. 384; Caldwell v. Wentworth, 14 id. 431; Lewis v. Welch, id. 294; Pray v. Burbank, 10 id. 377) and if this was a New Hampshire contract the plaintiffs could not recover. The law does not help the seller to recover the price of goods the sale of which it interdicts. The reason of this rule applies in

this case. Although this is a Massachusetts contract, it had its inception in this State in direct violation of our laws. Orders for these liquors were solicited and taken here by the plaintiffs' agent, sent here for that purpose, were transmitted by him to the plaintiffs, were accepted by them, and became the basis of the contract which they seek to enforce in this State. The orders are evidence for the plaintiffs as to price, quantity and kinds of liquors purchased, as well as of an offer by the defendant to purchase, if indeed it is not true that the plaintiffs cannot prove their case without founding it upon the orders. Both the soliciting and taking of the orders was an indictable offense in which the agent was principal.

The inciting, encouraging and aiding another to commit a misdemeanor is itself a misdemeanor. Russ. Crimes, 46, 47. The plaintiffs stand precisely as they would if they instead of their agent had solicited and taken the orders. Gen. Laws, chap. 284, § 7. Having aided, abetted, procured and hired their agent to violate our laws by soliciting and taking orders for the very liquors embraced in this contract, they cannot with any grace invoke the remedy afforded by our laws to recover the price. No rule of comity requires us to enforce in favor of a non-resident a contract which had its origin in the open violation of law, and which would not be enforced in favor of our own citizens, especially when it is offensive to our morals, opposed to our policy, and injurious to our citizens. Its enforcement would tend to nullify the statute which the plaintiffs have caused to be violated. The law which prohibits an end will not lend its aid in promoting the means designed to carry it into effect. It does not promote in one form that which is prohibited in another. White v. Buss, 3 Cush. 448, 450. The opinion in Hill v. Spear, 50 N. H. 264, concedes that there could be no recovery if the plaintiffs had actively participated in an illegal act in effecting the sale, and it was put upon the ground that Stewart, their agent, did not advise, request or encourage any violation of the laws of this State.

In Bliss v. Brainard, 41 N. H. 256, 268, we said: "Where a contract grows immediately out of, and is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it. So if the contract be in part connected with the illegal consideration, but growing immediately out of it, though it be in fact a new and separate contract, it is equally tainted by it." In that case the plaintiff sought to recover for the value of the casks in which the liquors were contained, and for the freight and cartage of the liquors, the sale of the liquors being unlawful. Fowler, J., said: "Aside therefore from the positive provisions of the Massachusetts statutes, withdrawing all protection from vessels and casks when employed as the instruments for perpetuating a violation of positive law, we think the sale of the casks was so tainted with the illegality of the sale of the liquors, so much a part of the res gesta of the main, illegal and criminal transaction, and so much the mere instrument whereby it was accomplished, that no action can be maintained to recover their price." For analogous reasons the plaintiffs in this case cannot recover. Although this is a Massachusetts contract, valid in that State, it is so tainted by the plaintiff's illegal conduct in soliciting, taking and transmitting orders in violation of the statute, that comity will not extend to them the remedy afforded by our laws. The taking of such orders tends directly to encourage the illegal sale of liquors in this State, and being prohibited, it follows that an action to recover the price of liquors sold and delivered pursuant to orders so solicited cannot be maintained in this State, although the sale of intoxicating liquors in the State or country where they are

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A will contained this residuary clause: "All the rest and residue of my estate, including that which may lapse for any cause, I direct to be invested or loaned upon the best terms possible, so as to produce the largest income, and said income to be distributed among the worthy poor of La Salle, in such a manner as a court of chancery may direct." Held, that this created a valid charitable trust, under the control of chancery, and was not void for uncertainty in the beneficiaries.

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Geo. Hunt, attorney-general, and Mayo & Widmer, for appellants.

Duncan, O'Connor & Gilberts, for Vineria Fowler and others, appellees.

SHELDON, J. This was a bill in chancery filed by the heirs at law of Esther S. Chapman, deceased, against the attorney-general of the State and the executors of the will of the decedent, to have a certain portion of the estate left by her declared to be intestate, and to belong to the complainants, as heirs at law of the decedent. The will, executed March 15, 1883, after making sundry bequests to various persons other than the complainants, concluded with this residuary clause: "All the residue of my estate I devise and bequeath unto the legatees hereinbefore named, in equal proportions, excepting said Oakwood Seminary and said Sylvester M. Chapman." Subsequently, on April 5, 1885, the testatrix executed a codicil which contained this residuary clause: "All the rest and residue of my estate, including that which may lapse for any cause, I direct to be invested or loaned upon the best terms possible, so as to produce the largest income, and said income to be distributed among the worthy poor of the city of La Salle, in such manner as a court of chancery may direct." Executors of the will were appointed. The decedent left both real and personal estate.

The bill alleges that the city of La Salle is situated in the town of La Salle, and includes but a small portion of the territory of the town; and that there is not now, nor has there ever been, in said city, any organization or association, voluntary or otherwise, for the distribution of charity to the poor of the city; and that the municipal authorities have no duties imposed upon them to provide for the poor; and claims that the residuary clause of the codicil is incapable of execution by reason of the uncertainty of the beneficiaries intended by the testator, and void; and that in consequence, all the rest and residue of the estate, both real and personal, after the payment of the general and specific legacies, was intestate estate. A demurrer to the bill was interposed by the attorneygeneral and the executors, which was overruled by the court, whereupon the executors answered, denying the invalidity of the residuary clause of the codicil, or that it was incapable of execution, and setting up that even if such were the case, the rest and residue of the estate must be distributed in accordance with the residuary clause of the will. Thereupon the bill was

amended by making the residuary legatees specified in the will additional parties defendant. Subsequently a hearing was had upon pleadings and proofs, and a decree was entered finding that the residuary clause of the codicil was ineffectual to dispose of the property, but that it nevertheless revoked the residuary clause of the will, and declaring that the real estate of which the testatrix died seised belonged to the complainants as her heirs at law, and directing that the rest and residue of the personal estate should be distributed to the complainants as intestate estate. From this decree the attorney-general, the executors, and a portion of the legatees specified in the residuary clause of the will have prosecuted this appeal.

There is in America courts much diversity of decision upon the subject of charitable trusts. In express private trusts there is not only a certain trustee who holds the legal estate, but there is a certain specified cestui que trust clearly identified, or made capable of indentification, by the terms of the instrument erecting the trust. It is an esseutial feature of public or charitable trusts that the beneficiaries are uncertain, -a class of persons described in some general language, often fluctuating, changing in their individual numbers, and partaking of a quasi public character. 2 Pom. Eq. Jur., § 1018.

In some of the States the equitable system of distinctively charitable trusts is not recognized, and the courts apply only the rules applicable to express private trusts. In other States the "statute of charitable uses" of 43 Eliz. chap. 14, has been adopted or repealed, and thereby decisions have been influenced. And in other cases local legislation, or supposed local policy, to more or less extent, enters into adjudications. In another, and as believed, the larger, portion of the States, the system of charitable trusts as administered in the English court of chancery, in the exercise of its ordinary judicial power, prevails, with variation in regard to the element of certainty in the trustee and the object of the charity. A classification of the decisions in the several States will be found in 2 Perry Trusts, § 748, in note, and 2 Pom. Eq. Jur., § 1029, and note. The prerogative power of the crown, exercised through the lord chancellor as the representative of the king, as where there is a gift to charity generally, without appointment of a trustee, and the bounty is devoted to some particular charity, or where there is a gift to a particular charitable purpose which cannot be effectuated, and it is applied to some other charitable use, cy-pres the original purpose, is regarded not as a judicial, but a ministerial prerogative function. This prerogative power courts in this country do not assume to exercise.

Were this subject of charitable trusts a new question with us, there would be opened up a wide and interesting field of discussion, in order for the establishment of the proper rule in this regard. But we are saved the labor in this respect, from the ground having heretofore been gone over by this court, and the rule applicable to charitable trusts having been established to be that which is administered in the court of chancery in England, in the exercise of its ordinary jurisdiction as a court of equity. This was done in the case of Heuser v. Harris, 42 Ill. 425, and where it was recognized that the statute of 43 Eliz., chap. 4, had been adopted in this State.

The entire contention in this case arises upon the construction, validity and effect of this residuary clause of the codicil. It is insisted this clause is void for uncertainty as to the beneficiaries.

This is not a bequest to charity generally, or to the poor generally, but to the worthy poor of the city of La Salle. The class here is definite, - the worthy poor of the city of La Salle, but the individuals of the class to whom the bounty is to be distributed are un

certain. There is always this uncertainty as to individuals, in the case of public charities, and it is this feature of uncertainty which distinguishes public charities from private charities, charitable trusts from private trusts; and to hold charitable gifts to be void because of such uncertainty is to reject this whole distinctive doctrine of charitable trusts. 2 Redf. Wills. 544 (66).

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law with the support of the paupers in the county, it was held in that particular case that the poor of the county were it paupers, and that the fund should be held by the County Court to be applied for the latter's support. It is not to be the inference from that case that a charitable bequest to the poor necessarily means to paupers, and that the trust is only to be executed by somebody charged by law with the support of paupers. "A bequest in trust for the poor inhabitants of a particular place, parish, or town is a charitable trust for the poor not receiving parochial or municipal aid and relief as paupers, on the ground that the charity is for the poor, and not for the rich. and if it was applied to the maintenance of those supported by the parish, town, or county, it would relieve wealthy tax-payers from their taxes, and not materially aid the poor." Perry Trusts, § 698.

It is said in Redf. Wills (2d ed.), 805, that some of the American cases have gone great lengths in carry

In the case of a charitable bequest it is immaterial how vague, indefinite, and uncertain the objects of the testator's bounty may be, provided there is a discretionary power vested in some one over its application to those objects. Domestic & F. M. Soc.'s Appeal, 30 Penn. St. 425; Perry Trusts, § 732. It is denied that there is any such discretionary power here given, and White v. Fiske, 22 Conn. 31, is cited in support of such denial. The bequest in that case was: Any surplus income that may remain, to the extent of $1,000 per annum, I direct to be expended by my said trustee for the support of indigent, pious, young men preparing into effect the intention of the testator when there ing for the ministry in New Haven." The decision was that the gift was void, as the objects of the benefaction were indefinite, and that no power was conferred on the trustees to make them definite by selection. This case, though meeting with seeming approval in Grimes' Ex'rs v. Harmon, 35 Ind. 198, has been disapproved by other high authorities. See Perry Trusts, $$ 713, 720, 748, note 1; 2 Redf. Wills (2d ed.), 541, note; Hesketh v. Murphy, 36 N. J. Eq. 304. The latter case especially speaks of White v. Fisk, as a case not likely to be followed.

In Hesketh v. Murphy, the testator's will empowered and directed the trustees to employ the annual income of the fund "for the relief of the most deserving poor of the city of Paterson aforesaid, forever, without regard to color or sex: but no person who is known to be intemperate, lazy, immoral, or undeserving, to receive any benefit from the said fund." It was objected that the gift could not be applied to its objects and was void, because the will did not confer upon any one the power of ascertainment of the individuals who should receive the benefit of the bequest. But the court held that the power given the trustees by the will to distribute the fund carried with it, by necessary implication, the power to select the beneficiaries from the designated class, and upheld the bequest. We entirely agree with the criticism there made by Chief Justice Beasley upon the case of White v. Fisk, that there was a mistaken assumption on the part of the court in that case that there was no power to select the objects of the charity lodged by the testator in the trustee; that when a power is conferred on the trustees to distribute the fund to members of a class, such members having certain qualifications which can be ascertained only by the exercise of judgment and discretion, as the act of distribution cannot be performed except after such ascertainment of the particular beneficiaries, the principal power to distribute the money carries with it the incidental and necessary power of selection; and this, upon the ordinary doctrine, that when one act is authorized to be done by a trustee or other agent, every authority requisite to the doing of such act is by intendment of law comprised in such grant or power. See Pickering v. Shotwell, 10 Penn. St. 23, that the power in the trustees to act at its discretion need not be expressly given, if it can be implied from the nature of the trust. In the later cases of Erskine v. Whitehead, 84 Ind. 357, the decision in Grimes v. Harmon does not seem to be approved in its full ex

tent.

In Heuser v. Harris, supra, the bequest of money was "to the poor of Madison county," the interest only to be used, with no appointment of a trustee. As he County Court of Madison county was charged by

was great indefiniteness in the objects of the trust; that the want of a trustee in such cases is never any obstacle in the way of a court of equity carrying into effect any trust, and more especially one of a charitable character." Mr. Pomeroy, in speaking of the distinguishing features between charitable and private trusts, says that in case of the former, "not only may the beneficiaries be uncertain, but that even when the gift is made to no certain trustee, so that the trust if private would wholly fail, a court of equity will carry the trust into effect either by appointing a trustee, or by acting itself in place of a trustee. 2 Pom. Eq. Jur., §§ 1025, 1026. And see Brown v. Kelsey, 2 Cush. 243; Washburn v. Sewall, 9 Metc. 280.

There can be no question of the general rule. But it is said it does not apply in a case where there is such indefiniteness as to beneficiaries as here. Numerous are the instances which might be cited where there was the want of a trustee, and the court executed the trust in cases of equal indefiniteness as here as to the objects of the trust. As in McCord v. Ochiltree, 8 Blackf. 15, where the legacy was for the education of the pious, indigent youths;'in Bull v. Bull, 8 Conn. 47, where the executors were to dispose of the residue of the estate "among our brothers and sisters and their children as they shall judge shall be most in need of the same,- this to be done according to their best discretion, and the executors died never having exercised the power, nor executed the trust; in Williams v. Pearson, 38 Ala. 299, where the beneficiaries named were "all the paupers and poor children of two designated 'beats,' whose parents were not able to support them;" in Howard v. American Peace Soc., 49 We. 288, where the gift was to the suffering poor of the town of Auburn. Where a legacy is given to trustees to distribute in charity, and they all die in the lifetime of the testator, yet the legacy will be enforced in equity. 2 Story Eq. Jur., § 1166. An extended collection of cases on the general subject may be found in note to Hesketh v. Murphy, 35 N. J. Eq. 23, and in 1 Jarm. Wills, 403, in note.

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Mr. Perry sums up, as the result of he principles and authorities, that "a bequest for charity generally, * or to the poor generally, or to charity generally, with no trustees appointed, will not be carried into effect by the courts in this country." Perry Trusts, § 729. That "if a testator makes a general and indefinite bequest to charity, or to the poor, or to religion, and appoints no trustees, but plainly refers such appointment to the courts, 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 vague and indefinite gift to charity, and names no trustee, and gives no power to

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