Webster v. Wiggin

The scheme of the will, upon which the questions suggested to us arise, is briefly as follows: The testator, after directing payment of his debts and funeral expenses, and the purchase of a place for his burial, makes a specific bequest of certain property used by him in the practice of his medical profession to one of his nephews. He then directs his executors to collect his book accounts and other credits, and to manage his other estate, real and personal, and, out of the proceeds of the book accounts and credits, and the income of the estate, to pay the expenses of administration, and seven legacies in the following order: —

I. To each of five nephews, $500.00 — $2,500.00.

II. To Charles D. Wiggin, in trust for three of the testator's grand-nieces, $1,500.00.

III. To the town of Meredith, New Hampshire, upon certain trusts, $4,000.00.

IV. To the State of New Hampshire, upon certain trusts, $500.00.

V. To the Rhode Island Medical Society, upon certain trusts, $4,000.00.

VI. To Brown University, upon certain trusts, $2,000.00.

VII. To Dartmouth College, New Hampshire, upon certain trusts, $2,000.00. In all, $16,500.00.

The rest, residue and remainder of his estate, that is to say, the capital of the whole estate, excepting so much of the proceeds of book accounts and other credits which have been collected by the executors as may have been used by them for the payment of legacies, he gives to the Providence Building, Sanitary and Educational Association, to constitute a fund to be called the Providence Building, Sanitary and Educational Fund, which is to be held and administered by said corporation upon certain trusts. Power is given to the executors while they are in control of this estate, to change the investment of it, and to sell and reinvest the proceeds for that purpose. All the legacies and devises are made conditional upon the acceptance of the conditions attached to each gift, within six months after notice from the executors. The bequests to the town of Meredith and the school districts thereof, and to the State of New Hampshire, are to be paid only after formal acceptance by the legatees of such legacies, and satisfactory assurance to the executors of the execution of the trusts attached to them. The debts and funeral expenses of the testator, and the legacies to his nephews, and in trust for his nieces, have been paid, and a surplus of personal estate and income remains in the executors' hands. A corporation of the name designated in the residuary clause was chartered by the General Assembly, June 1, 1883, and was organized during the lifetime of the testator, with the testator and three of the executors originally named in his will among the corporators, and this corporation claims to be entitled under the residuary clause.

The questions raised by the bill are of three classes. The eighth question relates to the condition of the estate, as affecting the application of the will; the seventh relates to the validity of the residuary clause; the first six relate to the construction of the direction to the executors to give notice to, and demand assurance from, the legatees.

It appears that the testator died February 23, 1891, seized and possessed, besides his personal estate, 1, of real property acquired by him prior to the date of his will of the value of about four thousand dollars; 2, of real property situated in the State of Rhode Island acquired by him subsequently to the date of said will, of the value of about sixty-four hundred dollars; 3, of real property situated in the State of Massachusetts acquired by him subsequently to the date of said will, of the value of about one thousand dollars; 4, of real property situated in the State of Rhode Island acquired by him subsequently to the date of said will, at foreclosure sales made by virtue of powers of attorney contained in mortgages acquired by him prior to the date of said will, of the value of about sixty-five hundred dollars: 5, and also of a certain tract of land situated in said Providence, which was conveyed in fee and in mortgage to said Chase Wiggin, by deed, dated August 15, A.D. 1874, and recorded August 17, A.D. 1874, and sold by virtue of the power of attorney contained in said mortgage deed to the defendant, Charles D. Wiggin, by deed dated April 3, A.D. 1875, acknowledged June 28, A.D. 1883, and recorded June 29, A.D. 1883, and conveyed by said defendant, Charles D. Wiggin, to said Chase Wiggin, by deed dated, acknowledged and recorded June 30, A.D. 1883, of the value of about fifteen hundred dollars.

The heirs at law contend that the lands in classes numbered 2 and 4, above, did not pass by the will, but that as to these lands and the income of them, the testator died intestate; and that the land in class 3, not being within the jurisdiction of the court, cannot be affected by this proceeding.

We are constrained to agree with this contention. While it may be inferred from the whole scheme of the will that the testator designed to dispose of all the estate which the law gave him power to affect by his will, we do not think he has availed himself of the privilege which our statute gives to a testator to dispose of after acquired real estate in the manner pointed out by the statute. There are no express terms in this will referring to property which he might acquire after the execution of it. The description of the property devised is as general as possible, but it is no more comprehensive than what might well have been used if he had intended only to convey what he then possessed. Pub. Stat. R.I. cap. 182, § 1; Church v. Warren Mfg. Co.,14 R.I. 539; Lorillard, Petitioner, 16 R.I. 254.

As to the property in class 4, it seems plain that it was acquired as real estate after the making of the will. As a debt secured by a mortgage, it would have passed under the will as personal property, but the testator changed its character, and so we think exempted it from his testamentary provisions. Ballard v. Carter, 5 Pick. 112; Brigham v. Winchester, 1 Metc. 390;Yardley v. Holland, L.R. 20 Eq. Cas. 428; Strode v.Russell, 2 Vern. 624.

As in Clarkson v. Pell, 17 R.I. 646, we express no opinion as to the property in class 3.

The property in class 5 was owned by the testator at the date of the will. The legal title was in his trustee, who was under obligation to transfer it at any time, and who held it for the testator's benefit or convenience, subject to the testator's absolute dominion. It was, in no real sense, acquired afterwards, when the legal title was conveyed. We conclude, therefore, that it is included in the estate affected by the will.

The heirs at law contend that the residuary clause is void, because the trusts imposed upon the legatee are not those which the claimant is authorized by law to administer, because these trusts are not charitable, because the time when the gift is to become effectual is too remote.

There can be no doubt that the testator intended the corporation which claims this gift to be the recipient and administrator of it. No such corporation was in existence at the date of his will, but he expressly says that it "is to be incorporated, and will be incorporated before the devise and bequests to it herein provided shall take effect," and before his death, he, together with his friends, organized the claimant corporation under a charter which he procured from the General Assembly, in which the objects of this clause of the will are substantially stated as the purposes of the corporation. This was an ancient method of founding a charity. "In other cases," says Mr. Tyssen, "the founders of charitable institutions procured for them charters of incorporation from the Crown with licenses to take lands in mortmain, and then conveyed or devised land to them." Tyssen on Charitable Bequests, 243. The residuary clause of the will and the charter were evidently conceived by the same mind and were designed to correspond to each other in the trusts declared by the testator and the trusts to be executed by the recipient. We find no discrepancy between them. Certain directions for the administration of the trusts in the will, not in any way repugnant to the provisions of the charter, are not repeated in it, and the direction for accumulation before commencing the building of houses, being optional, is not prescribed in the act. These differences, however, as well as the variations in expression between the two instruments, are only such as would naturally occur between a testamentary clause establishing a trust and a charter providing for a corporation for the purpose of administering it, and are appropriate to the different structures of the two instruments. The intention of the testator was then to convey his property to this corporation to be managed as it might be under the terms of this charter and under the trusts specified in the will. Does the law forbid such a disposition of his estate in the manner he desires, or can his expressed intention be carried out?

The trusts annexed to the gift to the residuary legatee are: First, To purchase land, or real estate, in such localities in the city of Providence as shall be most convenient for residences for the laboring classes, and to build thereon, such convenient and healthful tenements as shall be suitable in amount of room and costs of construction for such tenements. This employment of the fund may be made by the trustee, either at once or when the fund invested in other ways by them shall amount to five hundred thousand dollars in value. Certain directions as to the mode of administering the trusts are added. A sufficient number of these tenements shall be built in one locality to require most of the time of one suitable person to supervise and take charge of them, to keep them in proper repair, to see that they are not abused by the occupants, and that they are kept clean and tidy at all times; to collect rents, to attend to all sanitary matters connected with them, and otherwise to oversee and direct in all matters relative to such tenements and their tenants, which may be intrusted to him by the corporation. No intemperate, disorderly, or filthy persons shall be allowed to occupy any tenement built or provided by this fund. These directions imply that the tenements so directed to be built may be let to laborers for rent, not gratuitously furnished to them.

Secondly: When the trust fund, with its accumulations, amounts to five hundred thousand dollars in value, one-half of the future income is to be devoted to the payment of salaries of additional teachers in the public schools of Providence, or if the city refuses to cooperate with the trustee in that design, then the trustee may devote it to the establishment of schools for the education of the children residing in the tenements controlled by the trustee.

We think the second branch of the trust is charitable, in the light of all the precedents. Attorney General v. Earl ofLonsdale, 1 Sim. 105; Russell v. Allen, 107 U.S. 163; Pell v. Mercer, 14 R.I. 449, and cases cited. It is for the purpose of promoting the efficiency of the public schools, and seems wisely designed for that purpose, or, in the alternative, to establish schools under the powers granted to the trustee by its charter. But it is objected to on the ground that the application of the income for the promotion of education, in either way, is contingent upon such an accumulation as may not take place within the time permitted by the rule against perpetuities. It must be conceded, however, that this rule has no application if the fund in the meantime is devoted to charity. Gray on Perpetuities, § 597; Christ's Hospital v. Grainger, 16 Sim. 83; S.C. 1 McN. G. 460; Odell v. Odell, 10 Allen, 1; Jones v. Habersham,107 U.S. 174; Chamberlayne v. Brocket, L.R. 8 Chanc. 206;Russell v. Allen, supra.

Prof. Gray criticises the reasons given for Lord Cottenham's decision in Christ's Hospital v. Grainger, as assuming that the object of the rule against perpetuities is to prevent property from becoming inalienable. Gray on Perpetuities, §§ 599-600, et seq. The avoidance of an indefinite suspension of the right of alienation is at the root of the rule against perpetuities and cannot be ignored, but we may suggest that the doctrine of the case may be supported on another ground. Where property is well given in trust for a charity, and, upon a remote contingency, this first trust is to terminate and a second charitable trust to begin, the intention of the testator is that the first trust shall be benefited so long as in his opinion, its provisions can be usefully carried out, and then that the fund shall still be devoted to charity in some other way. That is to say, he makes a case for the cy pres disposition of the fund. The first trust failing to be practicable or useful, he points out another charitable object of his bounty, and so does in advance what the court would do if he had omitted the second provision.

In the case at bar, the testator supposed that after the fund in question should have increased to the value of five hundred thousand dollars, one-half of the accruing income would be enough for the primary branch of this trust, and so has directed a different disposition of one-half the income from that time. This is substantially what the court would have done when it became apparent to them that the whole income of the fund could not usefully be expended for the purposes of the first charity. In making a cy pres disposition of a fund, the court follows the supposed wish of the donor: Why should it not confirm his express direction? But, upon whatever ground the doctrine may be based, it has met with universal approbation as a rule of law. The crucial test, therefore, of the validity of the whole residuary clause, is whether or not the first trust declared is a valid charitable trust.

The objections to the validity of the trust which have been urged upon us are: First, that it is not charitable; and, secondly, that, not being charitable, it is void, under the rule against perpetuities.

If the residuary legatee were a private person, and the gift were not affected by a trust, he would take in the corpus of the estate, at the death of the testator, either a vested estate in fee charged with the term given to the executors, or an absolute equitable fee postponed in its enjoyment to a later time; and, in the latter case, the legal estate would pass to the executors in trust, first to raise legacies, and then to convey to the residuary legatee. The legal estate, in the first construction, or the equitable estate in the second, being surely given to a definite person, are equally exempt from the rule against perpetuities. Gray on Perpetuities, § 205.

We think that the estate given by this will to the residuary legatee in trust, is a legal estate in fee simple in the real estate, and a vested interest in the personal property and surplus book accounts and credits. The rents and income are, it is true, given to the executors, and such a general gift, standing alone, is undoubtedly a gift of the fee itself. 1 Jarman on Wills,* 741, and cases cited. But here, the income is separated from the estate for a temporary purpose, and the intention of the testator is plain that the corpus of the estate should be reserved for the residuary legatee.

In Buchanan v. Harrison, 8 Jur. N.S. 965, S.C. 31 L.J. Ch. 74, Wood, V.C., says: "The first contest was that those who take the indefinite gift of income were entitled to the actualcorpus of the property. As to that, I hold quite independently of general authorities, which are numerous on the subject, that, on this will it was clear that there was a gift of income limited entirely by the period when he took upon himself to dispose of the corpus."

The provisions for changes of the fund by the executors are powers not necessarily implying a legal interest. If the power of sale of any part of the estate is exercised, the new investment must immediately take the place of the old, and come into the ownership of the residuary legatee. 1 Chance on Powers, p. 53, §§ 141, 142; Buchanan v. Harrison, supra. And so in regard to any income coming to the manual possession of the executors after the charges on the income are satisfied.

The power and control of the executors cease the moment the income accrued, together with the book accounts and credits, has amounted to enough to pay the legacies; the future income at once accrues to the owner of the corpus of the estate, and so there is no need of transfer of title by the executors. It belongs to the residuary legatee the moment it comes into existence.

If, however, the residuary legatee takes only in trust, to pay over to a private person, or for a private purpose, upon a contingency which may happen beyond the time limited by the rule against perpetuities, such trust is void, and the legatee takes, if at all, only in trust for the heirs at law. Equitable rights in individuals are subject to the rule against perpetuities, as well as legal estates. Gray on Perpetuities, §§ 202, 323. Where the gift is upon a private trust, the beneficial interest must vest, or the application to the beneficial object must begin, within the time prescribed for contingent remainders at common law to vest, and so, in ascertaining the validity of a private trust, we must inquire at what time the beneficiaries as well as the trustee are to acquire their interest. Perry on Trusts, 383; Gray on Perpetuities, §§ 246, 413; Mainwarring v. Baxter, 5 Ves. 458.

It is argued that this is the present case; that though the legatee takes, by the terms of the will, a vested legal interest in the corpus of the estate, the trust is to devote the fund to certain purposes, not charitable, at some time in the future, after its income, together with book accounts and credits, has been sufficient to pay the seven preceding legacies. It is certain that, if this be a private trust, no individual to be benefited by it can be ascertained until after the earning of the preceding legacies and even if the legacies are paid out of the book accounts and credits without resort to the income, no one of these individuals can enforce upon the trustee an execution of the trust in his favor until the lapse of the further time required for the fund to grow to $500,000. It is those persons, of the laboring classes, who shall desire to live in Providence, when the preceding legacies are earned and the accumulation of the fund is completed who are to be the beneficiaries under the trust. But, if the trust is charitable, and no remote condition precedent is imposed to its operation it is lawful and valid, whatever may be the time fixed for its enjoyment to begin — the immediate and unconditional devotion of the fund to charity, and not the time or manner of the administration or distribution of the fund, being the test of the validity of its creation.Chamberlayne v. Brocket, L.R. 8 Ch. App. 206; Russell v.Allen, 107 U.S. 163. This rule is inevitable from the nature of charitable trusts. The fund must be set aside in perpetuity, and the beneficiaries are a succession of persons, in each of whom the beneficial interest vests from time to time in the future to remote ages. To apply the rule against perpetuities to such a fund would destroy the trust during the second generation. Such trusts are guarded from misuse by being placed under the special control and direction of courts of equity, and the investment of their funds and the mode of their administration may be altered within the limits of the foundation as circumstances require. There is no condition precedent to the legacy we are considering, except that it shall be accepted by the trustee within six months after notice. The direction for accumulation is optional, and in no sense a condition precedent. We come, then, to the vital question, whether it is a private trust, and so, void; or what is called in the law a charitable or public trust, and so, valid.

It is urged that the trust is not a charity because its benefits are not gratuitous, and its special beneficiaries are not required to be poor. But these are not necessary characteristics of a charitable trust. It is enough that the fund shall originally be a gift, if it possesses the other qualities of a charity. Attorney General v. Heelis, 2 Sim. Stu. 67, 77. In Attorney General v. Corporation of Shrewsbury, 6 Beav. 220, a grant of right to keep a toll-bridge, and to apply the tolls to keeping up bridges, gates, towers and wall of the town, is held a valid trust. Gifts to colleges where tuition fees are charged have been invariably sustained. The general benefit to the community derived from the diffusion of knowledge, which such institutions promote, is enough to justify their foundations and permanent endowment.

So in this trust, the building of a colossal fund as a monument to the founder, is not its object; but as he expresses it, it is "to improve the moral, physical, and intellectual condition of the youth of this city." We cannot doubt that the erection and control of such tenements as the donor contemplates will promote the health, morality and intelligence of those classes of citizens who are to occupy them, and by example and competition, will tend to improve the sanitary conditions of other estates, whose accommodations are now limited by private interest to mere obedience of the compulsions of law.

But the donor has seen fit to entrust this fund to the administration of a special corporation, and this is, in effect, to adopt its methods and aims. Incorporated Society v.Richards, 1 Dr. War. 258, 294. And so we are to take the provisions of the charter as exemplifying and explaining the trust in the will. Various definitions, more or less exact, of the legal term "charity" have been given by courts and jurists, e.g., by Judge Gray, in Jackson v. Phillips, 14 Allen, 539, at page 556; by Mr. Binney, in the Girard Will case, Vidal v.Girard's Executors, 2 How. U.S. 127, quoted with approval inOuld v. Washington Hospital, 95 U.S. 303, and in Price v.Maxwell, 28 Pa. St. 23, 35; by Lord Camden, in Jones v.Williams, Amb. 651, approved in Coggeshall v. Pelton, 7 John. Ch. 292, 294, and in Perin v. Carey, 24 How. U.S. 465, 506; by Sir John Leach, in Attorney General v. Heelis, 2 Sim. Stu. 67, 76; and by Durfee, C.J., in Pell v. Mercer,14 R.I. 412, 444, and many others. These are all generalizations of the provisions of the Statute 43 Eliz. cap. 4. The twenty-one classes of trusts referred to in this statute have been taken by the courts as criteria in passing upon the character of trusts claimed to be charitable. But the enumeration of that statute is not exhaustive. Colleges are expressly excluded from its provisions, though the courts for a long time strained its language to include them.

Other trusts with objects quite remote from any known to the subjects of Queen Elizabeth have been sustained as analogous, or upon general principles have been deduced from that statute by broad generalization. And it is instructive, in the present connection, to note the principle upon which the statute of Elizabeth is taken as a guide. "This is treated," says Mr. Tysson, "as an expression by the legislature, that all such purposes are lawful charitable purposes, and a guide to the courts in deciding upon the legality of other purposes." Tysson on Charitable Bequests, 33.

The trusts mentioned by the Statute are charitable because they are such as public policy, expressed by the act of the legislature, allows to be sustained by a dedication of property in perpetuity. Other trusts, then, endowed by the legislature with power to accept gifts of property, in mortmain for public purposes, must be considered charitable. So that a trust may be sustained as a charity by bringing itself within the Statute of Elizabeth, or its generalizations and analogies, or by showing specific authority from the legislature to perpetuate itself for the public or general benefit.

"Having regard to all legislative enactments, and general legal principles, is it, or is it not, for the public benefit that property should be devoted forever to fulfilling the purposes named? . . . . These trusts, for purposes which the law considers it for the public benefit to perpetuate forever, are called charitable trusts. This is the only general definition which can be given of the word charity. If we want a more precise definition of what is and what is not a charity, we must resort to a simple enumeration of the purposes which have been included under the term." Tysson on Charitable Bequests, 5.

Funds supplied from a gift of the Crown, or the legislature, or from private gift for any legal public or general purpose, are charitable funds, to be administered by courts of equity.Attorney General v. Heelis, 2 Sim. Stu. 67.

We conclude, then, that a charitable trust, in the legal sense, is one which originates from a gift, and which limits property to any public use to which it is lawful to devote property forever. The legality of such appropriation may be established by general rules of law, or by special act of the sovereign power. In either case, if the use is public, the trust is a charity.

Instances are common where donations in trust which would be forbidden by general law, have been upheld because made to corporations authorized by special act or license of the Crown, to hold property in mortmain.

The institution of a perpetual trust of a public nature, by grant of the legislature, though it be not called charitable in the act, is sufficient to make it charitable in the legal sense.

So, a grant of right to cut turves, made by Act of Parliament, was held by the Court of Appeal, in the case In reChristchurch Inclosure Act, 38 Ch. Div. 520, (Mar., 1888), to be a charitable trust. Lord Justice Lindley, at page 530, says: "The trust, being created by statute, cannot be held invalid on the ground of perpetuity or on any other ground. It is a perpetual trust for the occupiers for the time being of those cottages. But such a trust, unless it is a charitable trust, is one of a very anomalous character, and one which it will be extremely difficult to give full effect to in all contingencies; . . . . . Now, although it is competent for the legislature to create trusts unlike any previously known, we do not think that a trust of that kind ought to be held to have been created if it is equally consistent with the object and words of the statute to hold the trust to be one with which lawyers are familiar and which there is no difficulty in executing. If, therefore, this trust can be properly regarded as a charitable trust, it ought, in our opinion, to be so regarded." Lord Lindley bases this conclusion, mainly, upon the decision of the House of Lords Goodman v. Mayor of Saltash, L.R. 7 App. Cas. 633, and says further: "The trust is for a comparatively small and tolerably well defined class of persons. The class consists of all the then and future occupiers of the cottages, and there may be several occupiers of one cottage. The class, however, though limited, is, as to its members, uncertain, and is liable to fluctuation, and the trust for that class is perpetual. This being the case, we are unable to distinguish this case from the trust which both Lord Selborne and Lord Cairns held to be a charitable trust, and therefore, valid, in Goodman v.Saltash." In that case, the House of Lords supposed an ancient grant of a right of fishery as a charitable trust imposed upon the fee of the fishery held by the Corporation of Saltash, in favor of certain of the inhabitants. Lord Selborne says, p. 642: "A gift subject to a condition or trust for the benefit of the inhabitants of a parish, or town, or any particular class of such inhabitants, is (as I understand the law) a charitable trust; and no charitable trust can be void on the ground of perpetuity;" citing Wright v. Hobert, 9 Mod. 64, where Lord Macclesfield established as a charitable trust an ancient grant of land for the pasture, during three months of the year, of the cows of "as many of the inhabitants of a certain village as were able to buy three cows and during seven months of the rest of the year to be in common for all the inhabitants;" and also Jones v.Williams, Amb. 651; Attorney General v. Mayor of Carlisle, 2 Sim. 437; Howes v. Chapman, 4 Ves. 542: Attorney General v. Heelis, 2 Sim. Stu. 76, 77; Attorney General v. Mayor of Dublin, 1 Bligh, N.S. 347. Lord Cairns in the same case says, page 650, "Such a condition would create that which in the very wide language of our courts is called a charitable, that is to say, a public trust, or interest, for the benefit of the free inhabitants of ancient tenements. A trust of that kind would not, in any way, infringe the law, or rule against perpetuities, because we know, very well, that when you have a trust, which, if it were for the benefit of private individuals, or a fluctuating body of private individuals, would be void on the ground of perpetuity, yet, if it creates a charitable, that is to say, a public interest, it will be free from any obnoxiousness to the rule with regard to perpetuities."

In the light of these cases we have no difficulty in concluding that the trust for the erection and letting of tenements such as are contemplated by this legacy, and the charter of the residuary legatee, is a public or a charitable use. The trust here declared is not for the benefit of any persons who existed as individuals in the regard or intention of the testator. He designs them to be the objects of his bounty for no reason personal to them or to himself. They are a class of mankind comprising an undetermined number of individuals, each of whom is unknown and unrelated to him. What particular persons shall benefit by his gift he leaves to unanticipated circumstances to determine. Here we have the indefiniteness of beneficial application which makes the trust public. "They (i.e. charitable trusts) may and indeed must be for the benefit of an indefinite number of persons; for, if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness which is one characteristic of a legal charity." Gray, J., in Russell v. Allen, 107 U.S. 167.

The trust is then valid because it is lawful by the terms of the charter, and charitable because it is a lawful perpetuity for a public use, even if the special act of the legislature establishing this trust as perpetual, and calling it in terms a charity, is not binding upon the court to construe it to be charitable.

It may be useful, briefly, to mention the cases cited against the validity of this trust.

The trust avoided in Hillyard v. Miller, 10 Pa. St. 326, though presenting somewhat similar characteristics to the present one, is clearly distinguishable from it. The court found that trust to be simply to create a loan office. Nothing was to be gained by the borrowers but loans of money, at market rates. There was no gain, or benefit to the public, at all. If these loans had been required to be expended in the improvement of a specified locality, under such regulations as would promote the health and welfare of its inhabitants, it might have been held good; and in that case, there was no legislative approval of the perpetuity.

In Kendall v. Granger, 5 Beav. 300, no specific object of the gift was named, but it was given to charity in its colloquial sense, or to general utility. If some specific institution of general utility had been named, such as a bridge, or dyke, a house of correction, or a highway, it would have made a good charity under the Statute of Elizabeth.

In re Cullimore's Trust, 27 L.R. Irish, 18, the Master of the Rolls held the gift as probably intended to benefit individuals, and not the public; and as such, it was void for uncertainty; and, on page 24, discussing the elements of a charitable trust, he says: "Mere kindness, generosity, or benevolence on the testator's part is not enough to constitute a charitable purpose; there must also be the element of poverty or need on the part of the object, or else the gift must be dedicated to some purpose, such as education, religion, or the like which the law regards as charitable." He thus leaves the definition open; and the trust considered there is so dissimilar to the one we are considering that the decision is of no value here.

In Thompson v. Shakespear, 1 De G.F. J. 399, it appeared that the execution of the trust involved a disposition of property owned and held by private individuals which the court could not compel, and so it failed. Lord Justice Knight Bruce, p. 408, says, "If the object of a museum could be dissociated from Shakespear's house it might be possible to support the gift."

In re Dutton, 58 Law Jour. N.S. Exch. Div. 350, a gift to a private institution to be held in perpetuity for the benefit of its subscribers was held void. Kelly, C.B. says: "I think that if this institution were a charitable institution, the bequest would probably be void under the Mortmain Act; but when we look to the rules, we find the institution really is a species of club, and not a charity."

In Chamberlain v. Sterne, 111 Mass. 267, the question presented was whether a devise in trust to be applied "solely for benevolent purposes" in the discretion of the trustees, creates a public charity; and it was held that these words, standing alone, do not exclude objects not technically charitable and do not create a charity.

Chapel of the Good Shepherd v. Boston, 120 Mass. 212. This case decides that a charitable corporation having invested its funds in lodging houses, and not occupying them for any charitable purpose, must pay taxes on such real estate, under the statutes of Massachusetts. It is no authority for holding that a corporation, authorized to erect and manage tenement houses, under restrictions calculated to promote the public welfare, and for such purposes only as the legislature calls charitable, is not a charity.

Donnelly v. Boston Catholic Cemetery, 146 Mass. 163, decides that a cemetery corporation, not required by its charter to apply any part of its funds to charitable purposes, is not a charitable corporation.

Upon the words in the will the seven legacies in trust are affected by two contingencies — they are made payable out of the book accounts and credits or out of successive accumulations of income. If resort must be had to such accumulations all after the first one, unless that one is for a charity, would be too remote and void, but the inventory of this estate shows that the book accounts and credits alone are sufficient to satisfy all these gifts and so these legatees take interests vested at once and valid.

It appears from the Public Statutes of New Hampshire, cap. 219, § 10, that service of writs in that State is made, in cases against towns, upon one of the selectmen and the town clerk, in cases against school districts, upon one of the school board and clerk of the district. The notices required by the will to be given to the town of Meredith, and the school district should be served upon these persons accordingly. Service may be made upon these parties by any disinterested person by delivering to each a copy of the notice, of the will and of the bill of complaint. Notice to the State of New Hampshire may be made by a similar service of the same papers upon the Governor of the State. These services may be proved by affidavit of the person making them. Similar copies may be served upon the other legatees, and service proved in the same manner. We think that an act or resolution of the General Assembly of New Hampshire, accepting the legacy given to the State, and agreeing to its conditions, will be a sufficient assurance to the executors to justify the payment of that legacy under the terms of the will.

We think the legacy to the town of Meredith and the school districts of the town are separable, as specific portions of it are given for distinct purposes, and that the separate amounts of $250.00, $250.00, $3,000.00 and $500.00, may be severally accepted or rejected by the beneficiaries respectively. The condition annexed to the second gift of $250.00 may be performed either by the town or by the school districts respectively. An appropriation by either of the amount required will be sufficient to authorize the payment of this legacy. We are not advised as to the legal capacity of the town of Meredith to take and administer the trusts annexed to the other portions of the four thousand dollars given them by the will. We will, therefore, refer the question to a Master to report whether or not some enabling act of the legislature of New Hampshire may be required in the premises. Such action was taken by the Privy Council in Mayor ofLyons v. East India Company, 1 Moore P.C. 175. See also New v. Bonaker, L.R. 4 Eq. 655; Thompson v. Thompson, 1 Coll. 381; Attorney General v. Sturge, 19 Beav. 597.

As these trusts, if accepted by the town and school districts, and legally established, will be under the supervision of the equity courts of New Hampshire, we see no necessity of requiring any bond to be given.