tions where the English doctrine of charitable uses and trusts is not recognized and such trusts are placed on the same footing as private trusts, the courts require that the beneficiaries and the purpose of the gift be stated with such certainty that they may be determined by the courts. They will refuse to administer the gift cy pres.* 2 § 1148. Trustees May Be Vested With Discretionary Power of Administration. It is proper for the testator to leave to the trustee the details of the administration of a charitable trust created by his will,43 but he must outline its purposes. 44 A 346; American Bible Soc. v. Marshall, 15 Ohio St. 537; In re John's Estate, 38 Ore. 494, 36 L. R. A. 242, 47 Pac. 341, 50 Pac. 226; Murphy's Estate, 184 Pa. St. 310, 63 Am. St. Rep. 802, 39 Atl. 70. 42 Methodist Episcopal Church v. Clark, 41 Mich. 730, 3 N. W. 207; Hopkins V. Crossley, 132 Mich. 612, 96 N. W. 499; Holland v. Peck, 37 N. C. 255; Miller v. Atkinson, 63 N. C. 537; Fifield v. Van Wyck's Exr., 94 Va. 557, 64 Am. St. Rep. 745, 27 S. E. 446; Mong v. Roush, 29 W. Va. 119, 11 S. E. 906; Pack v. Shanklin, 43 W. Va. 304, 27 S. E. 389. As to the doctrine of cy pres, see §§ 1150-1155. In New York the rule above mentioned was in accord with the earlier decisions, but it has been largely changed by legislation (N. Y. Laws, 1893, ch. 701). See, also, Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568; In re Sturgis, 164 N. Y. 485, 58 N. E. 646. In Wisconsin the earlier cases placed charitable trusts upon the same footing as private trusts, but the later cases apply a more liberal rule as to personalty.-See Harrington v. Pier, 105 Wis. 485, 76 Am. St. Rep. 924, 50 L. R. A. 307, 82 N. W. 345; Danforth v. City of Oshkosh, 119 Wis. 262, 97 N. W. 258. 43 Jones v. Habersham, 107 U. S. 174, 27 L. Ed. 401, 2 Sup. Ct. 336; Quinn v. Shields, 62 Iowa 129, 49 Am. Rep. 141; Rotch v. Emerson, 105 Mass. 431; Suter v. Hilliard, 132 Mass. 412, 42 Am. Rep. 444. Contra: Pritchard v. Thompson, 95 N. Y. 76, 47 Am. Rep. 9, reversing s. c. 29 Hun (N. Y.) 295. But see, In re Hagenmeyer's Will, 12 Abb. N. C. (N. Y.) 432; Gumble v. Pfluger, 62 How. Pr. (N. Y.) 118. 44 Russell v. Allen, 107 U. S. 163, 27 L. Ed. 397, 2 Sup. Ct. 327. See §§ 1143, 1144. The provision of the will was gift "for any and all benevolent purposes that the trustee may see fit,"45 or with the direction to "distribute to such persons, societies or institutions as the trustees shall consider most deserving," does not create a charitable trust. If the trustee is merely to distribute the property among such incorporated societies, organized under the laws of certain named states which have authority to receive and hold funds upon a permanent trust for charitable or educational uses, as he might select, and in such terms as he might determine, such a trust is indefinite and void.47 as follows: "After the above legacies are paid without unnecessary delay, the sum remaining I desire my executors to divide among such American charities they may think well of and I would like these sums to be given to any societies that assist poor needlewomen (seamstresses) whose toil is so poorly requited. If no such organization exists the money to be divided for the benefit of incapacitated sailors and their families." It was held the beneficiaries only were indefinite, the primary purpose being to assist poor needlewomen. Manley v. Fiske, 139 App. Div. 665, 124 N. Y. Supp. 150. 45 Adye v. Smith, 44 Conn. 60, 26 Am. Rep. 424. 46 Nichols v. Allen, 130 Mass. 211, 39 Am. Rep. 445. 47 Pritchard v. Thompson, 95 N. Y. 76, 47 Am. Rep. 9. See, also, Cottman v. Grace, 112 N. Y. 299, 3 L. R. A. 145, 19 N. E. 839. After making a number of specific bequests the testatrix declared that "all the rest and residue of my said estate, real and personal, wherever situate, and of whatever kind, I give, devise, and bequeath to the Reverend S. S. Seward, of New York City, and to the Rev. J. C. Ager, of Brooklyn, state of New York, or the survivor of them, or to whomsoever they may select, in case of their death, in trust for the benefit of the New Jerusalem Church (Swedenborgian) as they shall deem best." It was held an attempt to create so vague and uncertain a trust that it could not be enforced by a court of equity.-Fifield v. Van Wyck's Exrs., 94 Va. 557, 64 Am. St. Rep. 745, 27 S. E. 446. § 1149. Chancery May Compel Trustee to Account: Statute of Limitations. A trustee of a charitable trust may be compelled by a court of equity to account for any misapplication of the fund, and this power is not restricted to a period within the statute of limitations.48 But if the intent of the testator was not clearly expressed as to the manner in which the fund should be applied to charitable uses, long acquiescence in the method of such application by the trustee will be accepted as good evidence of the do-" nor's purpose and as to the manner in which the trust should be administered.49 § 1150. Doctrine of Cy Pres: English and American Chancery Jurisdiction Distinguished. Much confusion has arisen with respect to the doctrine of cy pres, owing to the fact that in its application by the English courts the lord-chancellor exercised a double function, the one judicial in adjudicating upon the legal questions arising upon charitable gifts, the other ministerial as keeper of the king's conscience, who, as parens patriæ, may carry into effect, in some other manner, gifts for charitable uses that are illegal or contrary to public policy. The disposition is in the crown by sign manual. The instances in which such prerogative powers have been exercised are reported together with the judicial decisions, and no clear line of distinction is drawn between the two classes. If gifts are made for an alleged 48 Man v. Ballet, 1 Vern. 44; Attorney General v. Newbury, 3 Myl. & K. 647; Attorney General v. Old South Soc. 13 Allen (95 Mass.) 474; Tacoma v. Tacoma Cemetery, 28 Wash. 238, 68 Pac. 723. 49 Attorney General v. Coventry, 2 Vern. 397; Church of Christ v. Reorganized Church, 71 Fed. 250, 17 C. C. A. 397. charitable purpose which can not be carried into effect because contrary to law or its policy, by the king's royal prerogative such gifts are made effective for charities cy pres, or as near as practicable, to the purpose stated.50 No such power of administration is possessed by the courts of chancery in this country.51 Another class of cases in which the chancellor exercises his ministerial function is where gifts are made to charity, religion, or education, without indicating when, where, or how the gifts are to be applied or used, and without appointment of a trustee or other person to select the objects or appropriate and apply the funds.52 The courts in America have generally declined, in the absence of legislative authority, to administer these indefinite trusts unless a trustee be appointed by the testator to exercise his discretion in applying the gift to particular objects or persons.53 50 Moggridge v. Thackwell, 7 Ves. Jun. 36; Cary v. Abbot, 7 Ves. Jun. 490; Isaac v. Gompertz, Ambl. 228, n. 1; Attorney General v. Baxter, 1 Vern. 248; Attorney General v. Todd, 1 Keen 803. 51 Klumpert v. Vrieland, 142 Iowa 434, 121 N. W. 34; Teele v. Bishop of Derry, 168 Mass. 341, 60 Am. St. Rep. 401, 38 L. R. A. 629, 47 N. E. 422. 52 Attorney General v. Herrick, Ambl. 712; Attorney General v. Matthews, 2 Lev. 167; Attorney General v. Syderfen, 1 Vern. 224; Moggridge v. Thackwell, 7 Ves. Jun. 36; In re Pyne, L. R. (1903) 1 Ch. Div. 83; Jackson v. Phillips, 14 Allen (96 Mass.) 539, 576. 53 Perry, Trusts, § 719. This distinction is pointed out in Jackson v. Phillips, 14 Allen (96. Mass.) 539, 576; Moore's Heirs v. Moore's Devisees, 4 Dana (34 Ky.) 354, 366, 29 Am. Dec. 417. See, also, Gass v. Wilhite, 2 Dana (32 Ky.) 170, 177, 26 Am. Dec. 446; Curling's Admrs. v. Curling's Heirs, 8 Dana (38 Ky.) 38, 33 Am. Dec. 475. Compare: Conn. 31. White v. Fisk, 22 § 1151. The Same Subject: General American Rule Stated. An American case in point where this whole question was fully discussed is Jackson v. Phillips,5* in which one of the trusts was for the inflaming of public sentiment against the internal polity of some of the American commonwealths, thereby to secure the repeal of their laws in regard to the relations of master and servant and for harboring persons who, in violation of those relations, abandoned the states wherein they existed. After the death of the testator, but while litigation upon his will was still in progress, the laws referred to were rendered inoperative by an amendment to the Federal Constitution; and the immediate purpose for which the bequest was made having failed, the fund was applied to the New England branch of the American Freedmen's Union Commission. It was laid down that where a gift is made to a trustee for a charitable purpose, the general nature of which is pointed out, and which is lawful and valid at the time of the death of the testator, no intention being expressed to limit it to a particular institution or mode of application, and afterward, if either by change of circumstances the scheme of the testator becomes impracticable, or by change of law it becomes illegal, the fund, having once vested in the charity, does not go to the heir at law as a resulting trust, but is to be applied by the court of chancery, in the exercise of its jurisdiction in equity, cy pres, or as near the testator's particular directions as possible, thereby to carry out his general charitable intent.55 54 14 Allen (96 Mass.) 539. 55 Jackson v. Phillips, 14 Allen (96 Mass.) 539, 584. To the same effect, see, Teele v. Bishop of Derry, 168 Mass. 341, 60 Am. St. Rep. 401, 38 L. R. A. 629, 47 N. E. 422; Osgood v. Rogers, 186 Mass. 238, 71 N. E. 306; Gladding v. St. Matthew's Church, 25 R. I. 628, 105 Am. St. Rep. 904, 1 |