Dashiell v. Attorney General , 6 H. & J. 1 ( 1823 )

At this term, the opinion of the court was delivered by

Earle, J.

After much reflection on this case, we think it not essentially different from the cáse of George Dashiell and others, against the Attorney General, at the relation of the Vestry of St. Peter's Church in the city of Baltimore, arid others, adjudicated in this court at the last june term^(a) and that it must be decided on the same principles.

The testator, by I1Í3 will, directs the trustees and guardians of his child; to pay over annually a certain portion of the income of his estate to the trustees of Hillsborough school, to' be by them applied towards feeding, clothing and educating, the poor children of Caroline county, in the state of Maryland, which attends the poor or charity school established at Hillsboroughi, in the said county.

The poor children -of Caroline county, in the state of Maryland, which attends the poor or charity school established at Hillsborough in the Said county, are the objects of this bequest, and if it had been immediately to them, the question might be made, to whom should the executor of the deceased have paid it, or by whom would the suit be brought either at law or in equity, if he refused to pay it? With the best intentions to fulfil the wishes of the testator, it would be difficult, in such a case, for air exe - cutor to perform his duty,, and at last he would certainly find it a trust hot capable of execution. His dispositions-to do right might take him to the Hillsborough school, tómale e his payments, but when there, he' would be at a loss to determine who were the poor children of Caroline county attending that school. The poor children of a county or congregation, or a school, are not susceptible of ascertainment; and when such terms are used in wills as a designate persones, they have always been determined in’sufficient; an,d the devise or bequest, intended to be created by them; to be void for uncertainty. Powell on Devises, 419. Ihe difficulty in the casé .supposed, would yet be greátér, if an attempt was made to enforce the bequest against the executor; either in a court of law or in a court of equity; What children of. Caroline county, attending i\i&_Hillsborough school," could assume "to themselves the title'of “the poor children which attend that school;” and if assumed hy any individuals, by what conceivable standard of proof could they establish their right té thé designation? . '

In the ease before ÜS, the bequest is, to the poor children of Caroline county which attend the poor or charity School established at Hillsborough in that county; as cestui que trusts; and "a question further arises, whether the interposition of trustees makes the bequest good, which as an immediate and direct bequest, would be void for uncertainty? This question; it seems to lis; inay be answered, by suggesting the same insurmountable obstacles to the executing and enforcing the trust, as exist where the bequest is immediate to persons doubtful arid' uncertain. The terms used by the testator aré too indefinite to point out to the trustees the objects of his bounty, or to) -designate the persons who are to enforce the trust; and if the trust in such á case would not result for the use of others, it is manifest the trust fund would of necessity become the property of the trustees; The fund established by the testator is a perpetual fund, intended by him to supply an'income, not only to the poor children of Caroline county who, at the time of his death, attended Hills-borough school, but for the benefit of the poor children of Caroline county, who should in succession attend that school, and this forms another unanswerable objection to the testamentary disposition .we are considering. The poor children of Caroline county which attend the Hills-borough school, are not a body corporate, and cannot take in succession, and the bequest, if otherwise good, must fall, as soon as the first objects of the testator’s beneficence ceased to attend the school.

.It is needless to pursue this subject further, or to examine points which were discussed on the argument as peculiar to this'case. Our decision must be governed by the adjudication already mentioned, and to it we refer for the principles on which we reverse the judgment below, and are of opinion that the benefit of the undisposed subject fit the trust results to the next of kin to the testator.

DECREE REVERSED,

(a) Ante, Vol. 5, 392.