Boyd v. Frost National Bank of S.A. , 145 Tex. 206 ( 1946 )

In my opinion the trust attempted to be created should be held void because the language employed is too vague, indefinite and uncertain to create a valid charitable trust. This view was entertained by the trial court.

Courts upholding a general charitable trust consist of jurisdictions where the legislature has adopted the English statute of charitable uses (43 Elizabeth) as a part of the common law, or have by legislative action validated indefinite bequests for charity.

Texas has not adopted the English statute of charitable uses as a part of the common law. 9 Texas Jurisprudence, 310, Sec. 11. Concededly, the Legislature has not validated indefinite charitable trusts.

The will of Mrs. Pryor provides for the corporate trustee to be independent of the probate court.

The point of difference is best stated by the Supreme Court of Illinois (where the statute of charitable uses was adopted as the common law of that state) in the case of Welch v. Caldwell,226 Ill. 488, 80 N.E. 1014, 1016:

"There is, perhaps, no subject concerning which there is a greater diversity of decisions in the different states than the certainty and definiteness required in the beneficiaries and objects of a charity. The radical differences in the views of the courts have been produced, to some extent, by statutory provisions, and largely by the question whether the statute of 43 Elizabeth has been recognized or adopted as the law of the state. In some states the statute is not recognized as a part of the law, and in others all trusts, except those specifically enumerated in statutes, have been abolished, and in those states objects and beneficiaries must be described with great certainty. In States where the statute of Elizabeth is in force as a part of the law, the disposition has been to follow English rules to a great extent and to permit a great degree of uncertainty as to beneficiaries * * *."

It was stated by this court in Paul v. Ball, 31 Tex. 10:

"It would be dangerous * * * to submit too implicitly to rules of construction founded entirely upon English jurisprudence."

This court held in the case of Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273, where the trust instrument specified the particular objects and classes, that the statute of charitable uses may be looked to as the test of what the law will consider charitable uses, but in the Powers case the creator of the trust had specified the particular objects and classes to which the trustee was limited in choosing the beneficiaries of the trust. The Powers case is illustrative of the proper limitation of the rule which should exist in this state.

The creator of the trust in the Powers case had laid down a plan which specified and described the objects of charity to which the trustee was limited in the selection of beneficiaries. The trustee was to make the selection and pay the funds annually. In the present case, the object of the charity is not described or named, and by explicitly language in the instrument the corporate trustee is given unlimited power to select both the charitable uses and the beneficiaries thereof if and when it chooses within its "absolute discretion."

The prevailing rule existing within the jurisdictions of the United States may be classified as follows: First, states that have statutory provisions whereby the legislature as the parens patriae conferred upon a court prerogative powers concerning charitable bequests. Second, other states where the statute of 43 Elizabeth has been recognized or adopted as a part of the law of the state. Third, others were the statute of 43 Elizabeth is not a part of the common law. Obviously, Texas belongs in the third group. Admittedly, those belonging to the third group frequently apply the statute of charitable uses as a test of whether or not a bequest is charitable. The applicable rule which should prevail in this state is well stated in Crim v. Williamson, 180 Ala. 179, 60 So. 293, which is quoted with approval in the case of Hedin v. Wesdala Lutheran Church,59 Idaho 241, 81 P.2d 741, local citation 744. We quote from the Crim case:

"In every state of the union, including Alabama, where the cy pres doctrine is not recognized, it is the settled law that although the particular individuals who are to benefit by the charity need not be specified, still the object of the charity must be named or described. The want of a trustee will not defeat the charity, but the object of the charity must be ascertained, else the court would have to substitute its own selected charity or permit the trustee to select the charity, and which the law does not authorize. * * * Where the gift for a charitable use is so indefinite as to be incapable of being executed by a judicial decree, the gift is void."

This rule is supported by the following authorities in the names jurisdictions: Connecticut, Bristol v. Bristol,53 Conn. 242, 5 A. 687; Georgia, Egleston v. Trust Co. of Georgia,147 Ga. 154, 93 S.E. 84; Idaho, Hedin v. Westdala Lutheran Church,59 Idaho 241, 81 P.2d 741; Indiana, Grimes v. Harmon,33 Ind. 198, 9 Am. Rep. 690; Kentucky, Gooding v. Watson's Trustee,235 Ky. 562; 31 S.W.2d 919; Maryland, Gambel v. Trippe,75 Md. 252, 23 A. 461, 15 L.R.A. 235, 32 Am. St. Rep. 388; Michigan, Attorney General v. Soule, 28 Mich. 153; Minnesota, In re Ford's Estate, 144 Minn. 454, 175 N.W. 913; Mississippi, National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649; Missouri, Wentura v. Kinnerk, 319 Mo. 1068, 5 S.W.2d 66; New York, Tilden v. Green, 130 N.Y. 29, 28 N.E. 880, 14 L.R.A. 33, 27 Am. St. Rep. 487; Read v. Williams, 125 N.Y. 560, 26 N.E. 730, 21 Am. St. Rep. 748; North Carolina, Woodcock v. Wachovia Bank Trust Co., 214 N.C. 224, 199 S.E. 20; Ohio, Rogers v. Rea, Trustee,98 Ohio St. 315, 120 N.E. 828; South Carolina, City of Columbia v. Monteith, 139 S.C. 262, 137 S.E. 727; Tennessee, Johnson v. Johnson, 92 Tenn. 559, 23 S.W. 114, 22 L.R.A. 179, 36 Am. St. Rep. 104; Jones v. Green, (Tenn. Ch. App.) 36 S.W. 729; Davis v. Bullington, 164 Tenn. 272, 47 S.W.2d 555; Virginia, Moore v. Perkins, 169 Va. 175, 192 S.E. 806; West Virginia, Arnett v. Fairmont Trust Co., 70 W. Va. 296, 73 S.E. 930; Wisconsin, Harrington v. Pier, 105 Wis. 485, 82 N.W. 345, 50 L.R.A. 307, 76 Am. St. Rep. 924; Federal, Eighth Circuit, Mississippi Valley Trust Co. v. Commissioner, 72 F.2d 197, and Methodist Episcopal Church v. Walters, D.C. 50 F.2d 416.

True it is that the legislature has in some of the states either changed the common law of the state by legislative enactment and has validated bequests where a trustee is named with power to select the beneficiary from charitable objects in general. Moreover, in most of those states the courts have been vested with power to supervise and administer charitable trusts, and in most or all of them the trustee is required by statute to account regularly to the court having jurisdiction. See statutory laws of Michigan, Indiana, New York and Connecticutt. It will be observed that in Pennsylvania, as early as 1855, a statute was adopted validating indefinite and uncertain bequests for "any religious, charitable, literary or scientific use." In the state of Rhode Island the first statute on charitable uses was enacted in 1721. See Pell v. Mercer, 14 R.I. 412. In the states of Maine, Illinois and Massachusetts the statute of charitable uses was adopted as a part of the common law. We call attention to the above fact because it is my opinion that the majority has relied too strongly upon statements from text writers on the subject of charitable trusts, who have stated the rule existing in jurisdictions belonging to the first and second groups.

But, as we have heretofore pointed out, the Legislature of Texas has not adopted the statute of 43 Elizabeth; neither has it validated by statute indefinite trusts.

Most of the authorities cited by the text writers, and upon which respondents strongly rely, are as follows: Fox v. Gibbs,86 Me. 87, 29 A. 940. In Maine statutes exist which require accounting of trustees. Chapter 82 Secs. 1, 10 and 11, R.S. Maine 1930. 43 Elizabeth is a part of the common law. Tappan v. Deblois, 45 Me. 122.

White v. Ditson, 140 Mass. 351, 4 N.E. 606, 54 Am. Rep. 473. 43 Elizabeth is a part of the common law. Pierce v. Attwill,234 Mass. 389, 125 N.E. 609. Statutes of the state require annual accounting of trustees.

St. James Orphan Asylum v. Shelby, 60 Neb. 796, 84 N.E. 273, 83 Am. St. Rep. 553. Nebraska has validated indefinite bequests to charity. Chap 24, Art. 913, R.S. 1929.

Goodale v. Maloney, 60 N.H. 528, 49 Am. Rep. 334. This case does not involve a charitable trust, but the laws of New Hampshire subject trustees to control by the courts. Chapter 309, Secs. 4, 5 and 6, R.S. 1926.

King v. Rockwell, 93 N.J. Eq. 46, 115 A. 40. The laws of the state of New Jersey provide for a prerogative court and orphans' court. The constitution of the state proclaim the public policy of the common law of England "as well as so much of the statute law as have been heretofore practiced in this colony shall still remain in force." Art. 22, New Jersey Const. of July 2, 1776. Practically the same policy is contained in its present constitution. Art. 10, Sec. 1, Constitution of 1844 (amended).

In re Kinike's Estate, 155 Pa. 101, 25 A. 1016, and in re De Silver's Estate, 211 Pa. 459, 60 A. 1048. These cases were decided after the statute above referred to was passed in 1855. The statute is referred to in the later case.

Selleck v. Thompson, 28 R.I. 350, 67 A. 425. Rhode Island, as we have stated, passed a statute in 1721. Others were passed in 1861 and 1866. See Chapter 625, Public Law of Rhode Island, March 1866. See Pell v. Mercer, 14 R.I. 412, and Chap. 487, Sec. 1, General Laws of Rhode Island (Revision of 1936).

In re Planck's Estate, 150 Wash. 301, 272 P. 972. 43 Elizabeth is a part of the common law. See annotations following Sec. 143, Chap. 1, Title II, Remington's Rev. Stat. of Washington (1932).

In re Monaghan's Will, 199 Wis. 273, 226 N.W. 306. The court specifically stated that the decision was based upon a statute passed in Wisconsin in 1917 which changed the rule in that state.

Powell v. Hatch, 100 Mo. 592, 14 S.W. 49. 43 Elizabeth is a part of the common law of Missouri. However, in that state it is held in Hadlee v. Forsee, 203 Mo. 418, 101 S.W. 59, 14 L. R.A.N.S. 49, and other cases, that it is necessary to definitely name the purpose and class in a charitable trust.

Estate of Hinckley, 58 Cal. 457. The classes to be benefitted were clearly defined.

Chicago Bank of Commerce v. McPherson, 62 F.2d 393. The case was turned on the statute of Michigan. See statutes of that state, Acts. No. 122, of the Public Acts of 1907; Acts No. 280 of 1915, Secs. 13516-13517 of 1925, and Sec. 13512-13513 of 929. The court noted the change in the rule of decision in virtue of the statutes. (62 F.2d 395).

The Supreme Court of Texas, as late as June 12, 1935, some three years before the document in question was written, declared the law to be as follows: We quote from Allred v. Beggs,125 Tex. 584, 84 S.W.2d 223, 227:

"1. Before a court of equity is authorized to interfere to enforce a charitable trust, its jurisdiction must be invoked by some party authorized to initiate the proceeding. The court cannot act on its own initiative. 11 C.J., p. 366, Sec. 83.

"2. The Attorney General may invoke the powers of a court of equity to enforce a trust for public charity. 11 C.J., p. 367, Sec. 84; Id., p. 368, Sec. 90; Attorney General v. Benjamin Soule, 28 Mich. 153. In this connection it is held that before the Attorney General is authorized to sue to enforce a charity, it must be so public in nature or character as to be of interest to the entire public or the public in general. A charity for the orphan children of a state is a public charity, but a charity for the orphan children of deceased Masons, Odd Fellows, Baptists, Catholics, etc., of a state is not a public charity. Philadelphia v. Masonic Home, 160 Pa. 572, 28 A. 954, 23 L.R.A. 545, 40 Am. St. Rep. 736; Troutman v. DeBoissiere, etc. 66 Kan. 1,71 P. 286.

"3. When a fund or property is so given that it may or may not be used for charity, or may or may not be used for a charitable object of a public character, without violating the directions of the will, the case is not one for enforcing the gift as a charity in a suit by the Attorney General. Attorney General v. Soule et al, 28 Mich. 153; Perry on Trusts Trustees, 6th Ed., Vol. 2. p. 1164, Sec. 711. These authorities could be multiplied, but they are sufficient.

"4. If a testator leaves his estate to charity generally, but authorizes his executor to determine for what charitable purposes it shall be used, and to select the beneficiaries thereof, and the will contains no other definite manner of selection, the trust is a personal one and a court of equity does not have jurisdiction to determine the purpose or select beneficiaries. Langley v. Harris, 23 Tex. 565; Perry on Trusts Trustees, 6th ed. Vol. 2, p. 1184, Sec. 721; Id. p. 1211, Sec. 731; Fontain v. Ravenel, 58 U.S. (17 How.) 369, 15 L. Ed. 80; Gambell v. Trippe, 75 Md. 252, 23 A. 461, 15 L.R.A. 235; Hadley v. Forsee, 203 Mo. 418, 101 S.W. 59, 14 L.R.A. (N.S.) 49; Tilden v. Green,130 N.Y. 29, 28 N.E. 880, 14 L.R.A. 33, 27 Am. St. Rep. 487. In this connection, it is held that chancery courts in this country exercise judicial powers only. Powers not judicial exercised by the Chancellor in England merely as the representative of the Crown, and by virtue of the King's prerogative as parens patriae, are not possessed by our equity courts. Fontain v. Ravenel, supra; Perry on Trusts Trustees, 6th Ed. Vol. 2, p. 1186."

The trustee seeks to avoid the force of this decision by stating that these declarations of law are dictum. It may be that all that was said in the case was not necessary to the decision of the court, but the case before us calls for a decision of the question; I think the rules announced by this Court are supported by the authorities. The annotator of 14 L.R.A. (N.S.), to a note entitled "Enforcement of General Bequests for Charity or Religion," drew the following conclusion at page 154, which I think is sound:

"But the prevailing rule would seem to be that, in making the selection, the trustees must be limited to a particular locality, or to particular charities or classes of charities; and that a mere limitation to charity generally, or to charitable uses, is too indefinite."

From the case of Spalding v. St. Joseph's Industrial School for Boys, 107 Ky. 382, 54 S.W. 200, we quote at length because of the information contained in the opinion:

"Prior to 1601, equity had jurisdiction of charitable, as of other, trusts; and in that year the statute (43 Eliz. c. 4.) called the ``Statute of Charitable Uses' was adopted, which, by its enumeration of charities, furnished a standard to determine what purposes are deemed charitable, repealed pro tanto the mortmain statutes theretofore adopted, and created a new jurisdiction ancilliary to the existent equity jurisdiction, * * *. But in England, in addition to the jurisdiction of the chancellor as a court to administer trusts before and independent of the statute, as well as by virtue of its provisions, that functionary possessed another power, not judicial, but ministerial, over the charitable trusts; for, as keeper of the king's conscience, under the king's sign manual, he exercised the king's prerogative power as parents patriae to control and carry into effect gifts to charity in general, without any specific purpose being indicated, and to devote gifts made for charitable uses which were illegal, or contrary to public policy, or impossible to be carried into effect, to such other charitable purposes, cy pres the original gift, as he pleased. Moggridge v. Thackwell, 7 Ves. 36b; Perry, Trusts, Sec. 717 et seq. Under this prerogative power, charitable devises in England which happened to be illegal under the statutes have been applied to purposes directly opposite to those intended by the donor, and expressed in the gift: ``No such power' says Mr. Perry (section 718), ``exists in any American magistrates, judicial or ministerial, and none can exists until it is conferred by the legislature. The cases named are not law in America, and probably nothing like them will ever have a place in its jurisprudence.' Mr. Perry (section 723) insists upon the distinction between the cy pres doctrine as a rule of construction for the court, and therefore its exercise as a judicial function, and as a rule of administration, which is, of course, ministerial. In England, as the same officer, the chancellor, exercised the prerogative power of the king, as his minister, and also the judicial power of the court of chancery, and his actions in each behalf are reported in the same books, it became immaterial to distinguish between the power as exercised by the chancellor personally and that exercised judicially. And so, as said by Mr. Perry (section 718), ``no very clear line has been drawn between those established by him exercising his ordinary judicial powers in the court of chancery, and those established by the extraordinary or prerogative powers of the crown exercised through the chancellor. * * * The instances in which such prerogative powers were exercised are reported in the books together with judicial determinations, and thus much misapprehension and confusion have arisen.' For this reason the English authorities upon this subject may be misleading in a state where no such prerogative exists."

There are practical reasons why I am unwilling to subscribe to validating indefinite charitable trusts in Texas, without authority of the legislature.

This court, in Ex Parte Hughes, 133 Tex. 505, local citation 510, 129 S.W.2d 270, said:

"Under our judicial system our courts have such powers and jurisdiction as are defined by our laws, constitutional and statutory. Under our system there is no such thing as the inherent power of a court, ``if by that is meant a power which a court may exercise without a law authorizing it.' Messner v. Giddings, 65 Tex. 301."

I do not see how a court of equity in this state could, on the failure or refusal of the trustee to designate a particular charity, choose one and enforce the same by an equitable decree. Suppose the corporate trustee in this case should fail or refuse to act. What designation of charities could a court of equity in this state declare to be worthy of the bequests provided in the settlor's will? The will provides for an independent trustee, and in no uncertain language provides for the selection by the trustee in its absolute discretion. The charitable uses not being limited by the will to public charities, how can a court of equity say that the settlor intended public charities? Moreover, it has never been authoritatively decided in this state that the Attorney General of Texas has the authority in virtue of his office to require an accounting of a charitable trust. Suppose that the corporate trustee should designate as beneficiaries charitable associations in another state, and assume that some question should arise as to whether or not they were public charities. Does the Attorney General of Texas have the authority to institute suit on behalf of the selected beneficiaries residing in another state? Suppose that in the sound discretion of the corporate trustee, it should decide that for a period of years it would not designate beneficiaries or make payments from the income of the estate. Who in Texas has the authority to institute a proper proceeding and require affirmative action?

In those states where the statutory law has validated indefinite charitable bequests, the authority to require an accounting by the court is generally provided by statute, and where the statute of charitable uses has been adopted as a part of the common law, such power might necessarily follow by implication. This has not been the rule in this state. I think all will agree that before a court of equity is authorized to enforce a charitable trust, its jurisdiction must be invoked by some party authorized to initiate the proceedings. When this proceeding has ended there are no beneficiaries until the trustee makes a selection. Under the terms of the will that time is within the absolute discretion of the trustee. Assume that the attorney general of the state has authority in virtue of his office to initiate proceedings to compel the selection of beneficiaries. The specific terms of the will give the trustee absolute discretion in the premises and in such a case, would not the will be a complete defense to the action?

Mr. Zollman, in his work, American Law of Charities, p. 343, says:

"The experience of England has too clearly demonstrated that unlimited trusts may become an unmitigated evil, and that no contingent good can compensate for the actual evil attendant upon the withdrawal of property from general use and the placing of it in dead hands."

Again, on page 78, he states:

"This American doctrine cannot be used as a creative force to infuse life into gifts which are void per se. It decisively and distinctly presupposes the existence of a valid gift. There must, in every case, be a legal charity properly defined before it can have any application. ``It is not the province of the judges to project schemes of charity for insertion in dead men's wills by way of supplement to partial declarations of trust, void on their faces for uncertainty.'"

It is noted by one of our early predecessors. We quote:

"If bequests for charitable uses have been the means of much social good, they are certainly chargeable with great countervailing evils and have often been the source of great corruption and abuse. They have, perhaps, more frequently proved the subject of protracted wasting and perplexing litigation than of public utility, or the successful means of accomplishing the objects of their donors." Paschal v. Acklin, 27 Tex. 174, local citation 197.

The very nature of the instrument here involved, based upon its generalities, the absolute discretion of the corporate trustee or its successor, commends itself as a source of perplexing litigation. No doubt this litigation will involve a substantial sum of money as expenses.

It is not unreasonable, and is entirely proper, to require those desiring to create a charitable trust by will to do so in terms sufficiently definite so that a court of equity can enforce the same in accordance with the wishes of the testator. This was the law as declared by this Court in the Beggs case.

There is another rule which is applicable here sufficient to condemn the trust upheld by the majority. In Restatement of the Law of Trusts, Section 351, p. 1100, it is said:

"If property is transferred to a person, with no restrictions upon his disposition of the property, a charitable trust is not created merely because the transferor states in the trust instrument that he is making the transfer from a motive of promoting charity."

In the instrument now before the Court the corporate trustee or its successor is given explicit authority to select such charitable association and the money to be used as such associations "may deem advisable." This language is clear. There is nothing to construe. It is the settlor's language. The scrivener was her counsel. He chose the language for the settlor. She adopted it by signing and publishing the instrument in accordance with Texas law. This language is broad enough to include any use, whether charitable or not. The Supreme Court of North Carolina, in Woodcock v. Wachovia Bank Trust Co.,214 N.C. 224, 199 S.E. 20, expressed my view of the law applicable to such a situation. We quote briefly from that case:

"Not only is the purpose of the trust indefinite and uncertain, but the fund is left to the uncontrolled discretion, not of the trustees, but of the trustees' donee, one step further than the curative statute purports to extend."

The majority, under the rule of construction, says that the fund was limited to a charitable use. This is in effect writing a will for the decedent in this case. In the case of City of Haskell v. Ferguson, 66 S.W.2d 491, it is said:

"If a court of equity should appoint a trustee end undertake to clothe him with the necessary authority and discretion to carry out the hospital provision of the will, as contended for by the appellants, the practical result would be that the court or the court and trustee would find themselves endeavoring to effectuate the same by mere conjecture on their part as to the testatrix' true intention in the premises. For the court to supply, through a trustee or otherwise, the deficiencies of this provision of the will, would be equivalent to the court's making a last will and testament in that respect for the deceased. Courts have no more authority to make wills for deceased persons than they have to make contracts for those living."

On account of the broad powers expressly given to the trustee by the instrument, and if we assume a general charitable bequest, in my opinion the instrument violates the rule against perpetuities. Paragraph four of the will provides that payments out of the net income shall be made "in such amounts and at such times as my said trustee in its absolute direction may fix." It seems to be the universal rule as, stated by Gray in "The Rule Against Perpetuities," (3rd ed.) p. 492, that:

"The fact that this may be regarded as a charitable devise does not exempt it from the operation of the Rule (against perpetuities). The Common-Law Rule and our own Statute are without exception. All devises or grants, whether for charitable uses, or otherwise, must vest, if they vest at all, within the time limited. The devise in the present case is vested only in the trustees, and no interest whatever has as yet vested in the party intended to be benefitted."

As stated by this Court in Brooker v. Brooker, 130 Tex. 27,106 S.W.2d 247:

"According to our authorities, and also according to the authorities generally, the rule against perpetuities, as contained in the above constitutional provision, is that no interest within its scope is good unless it must vest, if at all, not later than twenty-one years after some life in being at the time of the creation of the interest, and in some instances the period of gestation will be added. (citing authorities) In this connection, it is the settled law that ``if by any possible contingency a devise violates the rule, it cannot stand, and must be held void.' Neely v. Brogden, supra." (239 S.W. 192).

In the present case, the legal title is vested in the trustee. The equitable title is vested in some indefinite donee to be selected by the trustee. The beneficial interest is not to be enjoyed until such times as the trustee in its absolute discretion may fix. Thus it is seen that the trustee, with the broad powers granted to it by the decedent, may postpone the time of selecting the beneficiaries so as to violate the rule against perpetuities. In 69 Corpus Juris, p. 615, the rule is stated:

"An interest which is dependent on the exercise of a power which rests in the uncontrolled discretion of a trustee is contingent, and it is frequently stated that a gift, not directly to the beneficiary, but indirectly through the exercise of powers conferred on trustees, does not vest immediately but is postponed until the power is exercised."

A case directly in point is the case of Girard Trust Co. v. Russell, 179 Fed. 447. In that case the court say:

"If, then, the agreement shows a purpose on the part of McCay to establish a trust for charity, the trust should be sustained, unless it be founded upon conditions that are obnoxious even to the liberal rule of construction applicable to charitable trusts. That a charity was intended seems clear, for the use declared was the payment of the debt of the state of Pennsylvania; and a gift in trust for the payment of the debt of a state, if not defeated by illegal provisions, is a good charitable gift. (citing authorities).

"The real question in the case is the one adjudicated by the decree of the court below, namely, whether McCay intended that the money deposited by him with the Girard Trust Company on December 18, 1848, should be an absolute, immediate gift for the benefit of the state of Pennsylvania, or whether it should vest in the proposed charity when, and only when it, with its accumulations, should equal the debt of the state. The intent to establish a charity being clear, we should not declare the donor's scheme an illegal one, if we can, under the law, avoid doing so. Indeed, we should look at the agreement with an eye keen to discover reason for sustaining it."

The court declared the trust void because there was no definite time when the state of Pennsylvania would receive the benefits of the trust. The court further stated:

"He did not know, nor could any one know, that that time would ever come. The vesting of the fund in charity was therefore postponed, possibly forever. In such circumstances, have we the power to give effect to the donor's charitable intent?"

To the same effect, see Jocelyn v. Nott, 44 Conn. 55. According to the language of the will, the trustee is directed to select the beneficiary and to pay the income, not annually, immediately, or at some other time, but in the absolute discretion of the corporate trustee or its successor. In other words, there is no enforceable time when the trustee can be compelled to act under the plain language of the will. In the Powers case the funds were to be applied annually.

In my opinion, the will of Mrs. Pyror, when measured by the prior opinion of this Court, should be construed to create a private trust rather than a charitable one. Recurring to the reasoning contained in the opinion of the Beggs case:

"These provisions leave no room for construction. There is not even a remote inference in the will that the donation thereby made was intended as a gift to public charity only. Such a construction would not only find no positive support in the instrument, but would absolutely contradict it. In this connection, it will be noted that the will never uses the word public with the word charities. Plainly, this shows that the testator did not intend to compel his executor to give the estate, or any part thereof, to public charity only. It will further be noted that the will never uses the word private in connection with the wordcharities. Plainly, this shows that the testator did not compel his executor to give this estate, or any part thereof, to private charity only. The executor was simply given the authority to give the estate to charity, — public or private."

The above opinion, as we have stated, was handed down some three years before the Pryor will was written. The Pryor will was written by a lawyer, presumably with full knowledge of the reasoning contained in the Beggs case. In view of these facts, in my opinion it clearly appears from the language employed in the will of Mrs. Pryor that she wished her trustee or its successor to be permitted within its absolute discretion to apply the income from her estate, not to public charity exclusively, but to any charity, public or private, which her trustee might select. In such a case the trust is a private one and should not be upheld as a charitable trust. I therefore enter my dissent to the majority opinion.

Opinion delivered July 10, 1946.