testator to create the trust, but also the promise or acquiescence of the legatee.

A secret trust when once established is as much subject to the statute regulating trusts as any other and the same results will follow. Thus, if a legacy is given to the executor with a request that he carry out instructions contained in a letter accompanying the will, and those instructions require the executor to do something forbidden by law, the entire legacy fails and the executor holds the amount of the legacy as a trustee for the testator's next of kin.

31. Trusts for charity.

We have already seen that two of the necessary and indispensable elements of an ordinary trust are the definiteness of its purpose and the certainty of the beneficiary. It is in respect to the latter attribute that a trust for charity differs from any other. A charitable trust is public in its nature; that is, it is for the benefit of no particular person, but of the general public or some portion of it; as for example, the relief of poverty and distress, the advancement of learning, the establishment of churches and hospitals and for other benevolent purposes, there being no intention to benefit any designated individual.

It is the very uncertainty of the particular

beneficiaries who are to enjoy the testator's bounty, which makes it a charitable trust. So long ago as the reign of Queen Elizabeth, and even before that, it began to dawn on the law-makers of that time that, if the rule requiring certainty in the designation of a beneficiary was to be applied to every species of trust, the designs of many a benevolent testator would be frustrated, and the fruits thereof lost to the public. To remedy this apprehended evil, the parliament passed an act validating trusts for charitable uses, the preamble of which statute sets forth the following charitable purposes: "The relief of aged, impotent, and poor people; the maintenance of sick and maimed soldiers and mariners; schools of learning; free schools and scholars in universities; the repair of bridges, ports, havens, causeways, churches, sea-banks, and highways; the education and preferment of orphans; relief or maintenance for houses of correction; marriage of poor maids; aid and help of young tradesmen, handicrafts-men, and persons decayed; relief or redemption of prisoners or captives; aid or ease of any poor inhabitant concerning payment of fifteens, setting out of soldiers and other taxes." The courts of England have never considered that this statement of special uses was intended to cover all those to be deemed as falling within the

purpose of the act, but rather that they are familiar examples of those which were to be considered. charitable; and so they have always been guided more by the manifest spirit of this ancient statute than by its letter. The principles of this act found lodgment in the juridical system of many of the States of the Union, and still continue to be recognized. In New York also they were at first applied and were sustained by the court of last resort, but later on that court receded from its position and for many years adhered to the doctrine that trusts for charity were no different from any other, and that if a testator wished to create that form of benefaction he must, at all events, clearly and distinctly designate a beneficiary who would be capable of enforcing it. Then followed a long line of decisions, culminating in the famous Tilden will case, resulting in the loss to the public of the fruits of many a great charitable scheme.

At last in the year 1893, the State Legislature passed an act expressly providing that "no gift, grant, or bequest to religious, educational, charitable, or benevolent uses, which shall, in other respects, be valid under the laws of this State, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument

creating the same." It was further provided that the title to the property given should be in the trustee, if one was appointed, but if none, then in the Supreme Court.

It has now been definitely decided that this law restored to the state the principles of the statute of Elizabeth relating to charitable trusts. Therefore a testator is not now required to specify any beneficiary as the recipient of his charity, so long as he makes it clear that his general purpose is charitable.

In such case he may even leave the selection of the particular beneficiaries to the judgment and discretion of his executors. The court will then direct the administration of the trust in accordance with such purpose, either through the trustee appointed by the will, or by its own appointee. If, however, a trust is so indefinite in its purpose as to make it uncertain whether it is charitable, then the court can afford no relief.

It will have been noticed that this doctrine of charitable uses applies only to trusts, and not to legacies. A bequest to a named religious or charitable institution, which at the death of the testator does not exist, or is not legally competent to receive it, is void, and is not saved by the statute just referred to. Nor is such a legacy

to be deemed a trust within the meaning of the statute, simply because the testator expresses a suggestion as to its use.

It must not be supposed from all that has been said on the subject that the testator has entirely his own way in the matter of giving away his estate to charity. He is still limited as to the proportion which the gift bears to the value of his whole estate. The statute declares that "no person having a husband, wife, child, or parent shall by his or her last will and testament devise or bequeath to any benevolent, charitable, literary, scientific, religious, or missionary society, association, or corporation, in trust or otherwise, more than one half part of his or her estate." Such bequest is good to the extent of one half the testator's property and no more, and the objection that it exceeds the statutory limit may be made by anyone who could benefit by its being sustained. This statute is frequently evaded by gifts to individuals in trust for the institutions referred to, instead of the prohibited direct legacies or devises. It applies only to gifts by will and not to deeds of trust, or other transfers inter vivos.

32. Competency of beneficiaries to take.

Before a testator names in his will a charitable, religious, or educational institution as a legatee, he