This distinction between the ministerial functions of the lord-chancellor and his judicial powers is recognized in England. The distinction is said to consist in this: If the testator in his will has clearly pointed out what he intends to be done and his directions are not contrary to law, the court of chancery is bound to carry his intentions into effect, and has no right to speculate as to the beneficial effect of the testator's dispositions or to prescribe a different mode for applying the fund; but if the disposition is in the crown by sign manual, or where there are accumulations to the charity not specifically disposed of, or where a fund is given for the benefit of a particular object which fails, the court may regulate the application of the fund consistent with the laws of the country.56 § 1152. The Same Subject. Even when the trust is to be executed out of the state, chancery may appoint a trustee within the state to re Ann. Cas. 537, 65 L. R. A. 225, 57 See, also, Attorney General v. Pyle, 1 Atk. 435; Attorney General v. Green, 2 Bro. C. C. 492; Attorney General v. Bishop of London, 3 Bro. C. C. 171; Moggridge v. Thackwell, 3 Bro. C. C. 517; s. c., 1 Ves. Jun. 464; Attorney General v. Glyn, 12 Sim. 84; Attorney General v. Lawes, 8 Hare 32; Attorney General v. Vint, 3 De Gex & S. 705; Attorney General v. Ironmongers Co., 2 Mylne & K. 576; s. c. Craig & P. 208; s. c. 10 Clark & F. 908; Lyons v. Advocate General, L. R. 1 App. 91; Grand Prairie Seminary v. Morgan, 171 Ill. 444, 49 N. E. 516; Grant v. Saunders, 121 Iowa 80, 100 Am. St. Rep. 310, 95 N. W. 411; Gass v. Wilhite, 2 Dana (32 Ky.) 170, 177, 26 Am. Dec. 446; Moore's Heirs v. Moore's Devisees, 4 Dana (34 Ky.) 354, 366, 29 Am. Dec. 417; Curling's Admrs. V. Curling's Heirs, 8 Dana (38 Ky.) 38, 33 Am. Dec. 475; Philadelphia v. Girard's Heirs, 45 Pa. St. 9, 27, 28, 84 Am. Dec. 470; Shields v. Jolly (Attorney General v. Jolly), 1 Rich. Eq. (S. C.) 99, 42 Am. Dec. 349; s. c. 2 Strob. Eq. (S. C.) 379, 395. 56 Philpott v. St. George's Hospital, 27 Beav. 107. ceive the bequest, or may order the fund or the profits arising from it to be paid from time to time to a trustee in the place where the trust is to be executed.57 There seems to be "no valid reason why the judicial cy pres doctrine, as explained in Jackson v. Phillips,58 should not be approved in all those states wherein the statute of Elizabeth has been decided to be in force, or where its principles have been adopted by the law of the state; in other words, in those states where the doctrine is recognized that indefiniteness of the object is no objection to a trust, provided it is for a charity. This is the case in many states of the Union." And, indeed, it would seem that courts of equity have derived from the law of England, independent of the statute of Elizabeth, the authority to enforce charities when trustees competent to take the legal title are named, and the class to be benefited and the individuals to be designated by the trustees are 57 Fellows v. Miner, 119 Mass. 541. See, also, Attorney General v. London, 3 Bro. C. C. 171; 1 Ves. Jun. 243; Mayor of Lyons v. East India Co., 1 Moore P. C. C. 175, 295-297; Attorney General V. Sturge, 19 Beav. 597; Washburn v. Sewall, 9 Metc. (50 Mass.) 280; Chamberlain v. Chamberlain, 43 N. Y. 424. 58 14 Allen (96 Mass.) 539. 59 See § 1116. 60 Vidal v. Girard, 2 How. (U.S.) 128, 11 L. Ed. 205; Williams v. Pearson, 38 Ala. 299; Treat's Appeal, 30 Conn. 113; Beall v. Fox's Exrs., 4 Ga. 404; Walker V. Walker, 25 Ga. 420; McCord v. Ochiltree, 8 Blackf. (Ind.) 15; Baptist Church v. Presbyterian Church, 18 B. Mon. (Ky.) 635; Preachers ascertainable.1 Thus, it has been held that in the general devolution upon the courts of California of all judicial power with respect to charities is included the power of cy pres, so far as it may be employed in directing the trustees under a will to carry into effect its general, lawful, and charitable intent, when the particular scheme is impracticable or has become unlawful.62 § 1153. Cy Pres Doctrine: English Rule Where Object or Purpose of Trust Fails. Where the object of the charity is particularly designated, as a legacy to a certain ophthalmic hospital, and it has ceased to exist at the date of the will, the court will not administer cy pres the gift.63 Or if such particular object ceases to exist before the testator's death, the legacy will lapse and will not be administered cy pres.+ The rule is the same where the particular purpose for which the trust is created becomes impossible of fulfillment during the testator's lifetime. For instance, a legacy to pay off a mortgage on a chapel which is satisfied before the testator's death, will lapse, there being no general charitable purpose indicated. For if the testator has expressed a general charitable intention for certain objects or purposes, the gift will be executed cy pres.c 61 Hinckley's Estate, 58 Cal. 457. 62 Hinckley's Estate, 58 Cal. 457. 63 Broadbent v. Barrow, L. R. 29 Ch. Div. 560. 64 In re Ovey, L. R. 29 Ch. Div. 560; Pease v. Pattison, 32 Ch. Div. 154; In re Davis, (1902) 1 Ch. 876; Gladding v. St. Matthew's Church, 25 R. I. 628, 638, 105 Am. St. Rep. 904, 1 Ann. Cas. 537, 65 L. R. A. 225, 57 Atl. 860. II Com. on Wills-51 65 65 Corbyn v. French, 4 Ves. Jun. 418; In re White's Trusts, L. R. 33 Ch. Div. 449; In re Randell, L. R. 38 Ch. Div. 213; Doyle v. Whalen, 87 Me. 414, 31 L. R. A. 118, 32 Atl. 1022. 66 Daly v. Attorney General, 11 Ir. Ch. 41; Biscoe v. Jackson, 35 Ch. Div. 460; Lyons v. Advocate General, L. R. 1 App. 91. Should the particular object of charity specified by the testator or the particular purpose of the gift be in existence or capable of fulfillment at the testator's death, a right in the trust fund becomes vested; and should the object or purposé subsequent cease to exist or become impossible of fulfillment, the gift will not lapse but will be administered cy pres by the court."7 § 1154. The Same Subject. If the testator in his will shows a clear intention that his gift to a beneficiary is in trust for charitable purposes, but the charities are not designated, or if the object mentioned fails, the courts will execute the trust cy pres and apply it to some similar object, although the particular manner of administration contemplated by the testator is uncertain or impracticable and although the object of the trust may be indefinite.68 Where several objects are mentioned and one fails, the rule is the same as to the object failing, and the proportion allotted to it will be administered cy pres. S.69 67 In re Slevin, L. R. (1891) 2 Ch. 236; In re Buck, L. R. (1896) 2 Ch. 727. 68 Paice v. Canterbury, 14 Ves. Jun. 364; In re Pyne, L. R. (1903) 1 Ch. 83; Moggridge v. Thackwell, 7 Ves. Jun. 36; Mills v. Farmer, 19 Ves. Jun. 483; Pocock v. Attorney General, 3 Ch. Div. 343; Pieschel v. Paris, 2 Sim. & St. 384; In re Prison Charities, L. R. 16 Eq. 129; Attorney General v. St. John's Hospital Bath, L. R. 1 Ch. App. 92; Manchester School Case, L. R. 2 Ch. 497; In re White, L. R. (1893) 2 Ch. Div. 41; In re Macduff, L R. (1896) 2 Ch. Div. 451, 455; McCord v. Ochiltree, 8 Blackf. (Ind.) 15, 22; Winslow v. Cummings, 3 Cush. (57 Mass.) 358, 365; Sohier v. Burr, 127 Mass. 221; Jones v. Watford, 62 N. J. Eq. 339, 50 Atl. 180. Where a general charitable intention is expressed, but no trus tee is appointed and no trust created, the disposition is by the king by sign manual.-In re Pyne, L. R. (1903) 1 Ch. 83. 69 Ironmonger's Co. v. Attorney General, 10 Cl. & F. 908. § 1155. The Same Subject: American Authorities. The courts of chancery of the United States do not possess the ministerial powers of like courts of England. Except in so far as the English courts may administer the prerogative power of the crown, the cy pres doctrine as applied by them is generally adopted in this country in those jurisdictions which accept the English doctrine of charitable uses and trusts.70 In other states the doctrine is applied to a greater or less extent as they may recognize the principle."1 It is impossible to lay down any general American rule since the English doctrine of charitable uses and trusts, from being fully recognized in some jurisdictions, is in others accepted only partially or denied in toto. Further, such matters are largely regulated by legislation which varies in the different states. It is therefore possible only, within the scope of this work, to state those principles which will be accepted generally. It must be remembered that courts of chancery can not control the discretion of a trustee in the absence of fraud or abuse. If the will clearly indicates that the trust property is to be devoted to charitable purposes, but the purpose is too indefinite for ascertainment, the trust will fail unless a trustee is appointed with discretion to apply the property to the general purpose, or the court assumes jurisdiction. In the last instance, the purpose must be sufficiently definite, by the terms of the will, so that the court can cause the fund to be applied according to the 70 See § 1114; Hinckley's Estate, 58 Cal. 457; Heuser v. Harris, 42 Ill. 425; Erskine v. Whitehead, 84 Ind. 357; Attorney General Briggs, 164 Mass. 561, 42 N. E. 118; Lackland v. Walker, 151 Mo. V. 210, 52 S. W. 414; Adams Female Academy v. Adams, 65 N. H. 225, 6 L. R. A. 785, 18 Atl. 777, 23 Atl. 430; St. Peter's Church v. Brown, 21 R. I. 367, 43 Atl. 642. 71 See 81114. |