[593] The opinion was delivered on the 30th of July.*
Shaw, C. J.
Jurisdiction in this case is given by a special act, St. 1830, c. 90, authorizing the court to hear and determine in equity all matters relating to the donation of Benjamin Count Rumford to the American Academy of Arts and Sciences, and to make all proper orders and decrees touching the same. Conformably to the construction which has been put upon other statutes giving equity jurisdiction to this court in regard to particular subjects, this act confers an authority upon the court, which, though limited as to the particular subject upon which it is to act, is unlimited and entire, conformably to the established law and practice of courts of equity, respecting the complete disposition of such subject, with its incidents and consequences. As the pleadings in this case and the relief sought relate entirely to the donation in question, the case is manifestly within the jurisdiction of the court, to the same extent as if it were a court of general chancery jurisdiction.
This case stands clear of many of the difficulties which have presented themselves in other cases of charities.
In the case of Baptist Association v. Hart's Executors, 4 Wheat. 1, the bequest failed, because, not being made to a person or incorporated body capable of taking, and no cestui que trusts specifically designated, who might claim the appointment of a trustee, it could not be supported as a trust, and because the statute of 43 Eliz. bad been repealed in Virginia where the question arose, before the bequest was made, it could not be protected by force of that statute as a charity. Here there is no question that the statute of Eliz. is in force; though in the form in which the case presents itself, it is not necessary to resort to it.
The case shows, that the gift in question by Count Rumford was a gift of personal property, made by Count Rumford in bis lifetime, and made to the American Academy, who were then and ever since have been a corporation, not only capable of [594] taking, holding and managing property, but incorporated, for the precise purpose of administering the species of charity contemplated by this donation, that of advancing the public welfare, by the promotion of scientific discoveries and improvements.
I. That a gift designed to promote the public good, by the encouragement of learning, science and the useful arts, without any particular reference to the poor, is regarded as a charity, is settled by a series of judicial decisions, and regarded as the settled practice of a court of equity. Such is" a bequest for the improvement of a city, Howse v. Chapman, 4 Ves. 542; to improve a city and support public buildings, bridges, &c., Gort v. Attorney General, in the House of Lords, 6 Dow, 136; to establish new scholarships in a college, Attorney General v. Andrew, 3 Ves. 633; to found and endow a college, Attorney General v. Bowyer, 3 Ves. 714. What is a charity is principally regulated by the St. of 43 Eliz. c. 4. Morice v. Bishop of Durham, 9 Ves. 405.
1. As to the claim of the college in the present case, it is a question of great doubt in my mind, whether, even if the plaintiffs had renounced or rejected Count Rumford’s donation, or perverted or misapplied it, the defendants as residuary legatees could claim it. Had this been a bequest to the plaintiffs by will, and the same will had constituted the defendants residuary legatees, there might have been some plausible ground to contend, that if the gift was not received and applied upon the terms of the will, the gift was ineffectual and void, and so would fall into the residuum; but here the gift was by another and different act in the lifetime of the testator, by which the property had become vested in the plaintiffs.
The only plausible ground upon which the college can claim is, that being residuary legatees, they too are trustees for scientific objects, and that such objects embrace the same subject matter with those confided to the academy, with some others, and therefore that the general purpose of Count Rumford, in his donation to the academy, would be promoted, if the property were confided in whole or in part to them. But we think this argument cannot be admitted. The college claim as residuary [595] legatees on the ground that the gift to the academy was upon condition, and the condition not complied with, or defeasible upon the condition of not complying with its provisions, and now forfeited by such non-compliance, and so passing to them as a part of Count Rumford’s property not otherwise disposed of. But it is to be considered that the circumstance that the purposes to be effected by the gift to the academy and the bequest to the college being similar is purely accidental; that the principle upon which the college claim would equally avail them, although the purpose of Count Rumford in his donation to the academy should be wholly disappointed, and would equally avail an heir, claiming for his own use, had there been no will. Such accidental coincidence therefore in the trusts to the gift to the academy and the residuary bequest to the college adds nothing to the equitable claim of the college. But there is nothing in the case to show that the academy has as yet done any act, either renouncing or forfeiting the donation made to them bj Count Rumford in his lifetime; and whatever might be the argument, had any actual misappropriation of the property taken place, it cannot now apply.
2. But regarding this donation as a charity, there are two grounds, upon either of which the college would be debarred from claiming the property.
1st. The academy, having once expressly accepted this donation upon the trusts and for the purposes for which it was given, are not at liberty to renounce it, but are compellable to hold and apply it to the public and charitable purposes to which it was destined.
2d. But, even if the academy had not thus accepted this donation, instead of reverting to the donor’s heirs or residuary legatees, it would be applied to the general purposes of the charity under other suitable persons to be appointed for that purpose. Attorney General v. Andrew, 3 Ves. 633. Andrew v. Merchant Tailors’ Co. 7 Ves. 223. Andrew v. Trinity Hall, 9 Ves. 525. Wherever it appears that a general object of charity is intended, and the purpose is not unlawful and void, the right of the heir at law is divested. It is impossible to look at the paper ac[596] companying the donation of Count Rumford to the American Academy, without perceiving that a general purpose of promoting the public good, which by law is deemed a charity, was intended, In any possible aspect in which the claim of the college can be placed, it appears to the court impossible to perceive any tenable ground upon which their right to the whole or any part of the funds can be maintained, and that their claim therefore must be dismissed.
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[593] The opinion was delivered on the 30th of July.*
Shaw, C. J.
Jurisdiction in this case is given by a special act, St. 1830, c. 90, authorizing the court to hear and determine in equity all matters relating to the donation of Benjamin Count Rumford to the American Academy of Arts and Sciences, and to make all proper orders and decrees touching the same. Conformably to the construction which has been put upon other statutes giving equity jurisdiction to this court in regard to particular subjects, this act confers an authority upon the court, which, though limited as to the particular subject upon which it is to act, is unlimited and entire, conformably to the established law and practice of courts of equity, respecting the complete disposition of such subject, with its incidents and consequences. As the pleadings in this case and the relief sought relate entirely to the donation in question, the case is manifestly within the jurisdiction of the court, to the same extent as if it were a court of general chancery jurisdiction.
This case stands clear of many of the difficulties which have presented themselves in other cases of charities.
In the case of Baptist Association v. Hart's Executors, 4 Wheat. 1, the bequest failed, because, not being made to a person or incorporated body capable of taking, and no cestui que trusts specifically designated, who might claim the appointment of a trustee, it could not be supported as a trust, and because the statute of 43 Eliz. bad been repealed in Virginia where the question arose, before the bequest was made, it could not be protected by force of that statute as a charity. Here there is no question that the statute of Eliz. is in force; though in the form in which the case presents itself, it is not necessary to resort to it.
The case shows, that the gift in question by Count Rumford was a gift of personal property, made by Count Rumford in bis lifetime, and made to the American Academy, who were then and ever since have been a corporation, not only capable of [594] taking, holding and managing property, but incorporated, for the precise purpose of administering the species of charity contemplated by this donation, that of advancing the public welfare, by the promotion of scientific discoveries and improvements.
I. That a gift designed to promote the public good, by the encouragement of learning, science and the useful arts, without any particular reference to the poor, is regarded as a charity, is settled by a series of judicial decisions, and regarded as the settled practice of a court of equity. Such is" a bequest for the improvement of a city, Howse v. Chapman, 4 Ves. 542; to improve a city and support public buildings, bridges, &c., Gort v. Attorney General, in the House of Lords, 6 Dow, 136; to establish new scholarships in a college, Attorney General v. Andrew, 3 Ves. 633; to found and endow a college, Attorney General v. Bowyer, 3 Ves. 714. What is a charity is principally regulated by the St. of 43 Eliz. c. 4. Morice v. Bishop of Durham, 9 Ves. 405.
1. As to the claim of the college in the present case, it is a question of great doubt in my mind, whether, even if the plaintiffs had renounced or rejected Count Rumford’s donation, or perverted or misapplied it, the defendants as residuary legatees could claim it. Had this been a bequest to the plaintiffs by will, and the same will had constituted the defendants residuary legatees, there might have been some plausible ground to contend, that if the gift was not received and applied upon the terms of the will, the gift was ineffectual and void, and so would fall into the residuum; but here the gift was by another and different act in the lifetime of the testator, by which the property had become vested in the plaintiffs.
The only plausible ground upon which the college can claim is, that being residuary legatees, they too are trustees for scientific objects, and that such objects embrace the same subject matter with those confided to the academy, with some others, and therefore that the general purpose of Count Rumford, in his donation to the academy, would be promoted, if the property were confided in whole or in part to them. But we think this argument cannot be admitted. The college claim as residuary [595] legatees on the ground that the gift to the academy was upon condition, and the condition not complied with, or defeasible upon the condition of not complying with its provisions, and now forfeited by such non-compliance, and so passing to them as a part of Count Rumford’s property not otherwise disposed of. But it is to be considered that the circumstance that the purposes to be effected by the gift to the academy and the bequest to the college being similar is purely accidental; that the principle upon which the college claim would equally avail them, although the purpose of Count Rumford in his donation to the academy should be wholly disappointed, and would equally avail an heir, claiming for his own use, had there been no will. Such accidental coincidence therefore in the trusts to the gift to the academy and the residuary bequest to the college adds nothing to the equitable claim of the college. But there is nothing in the case to show that the academy has as yet done any act, either renouncing or forfeiting the donation made to them bj Count Rumford in his lifetime; and whatever might be the argument, had any actual misappropriation of the property taken place, it cannot now apply.
2. But regarding this donation as a charity, there are two grounds, upon either of which the college would be debarred from claiming the property.
1st. The academy, having once expressly accepted this donation upon the trusts and for the purposes for which it was given, are not at liberty to renounce it, but are compellable to hold and apply it to the public and charitable purposes to which it was destined.
2d. But, even if the academy had not thus accepted this donation, instead of reverting to the donor’s heirs or residuary legatees, it would be applied to the general purposes of the charity under other suitable persons to be appointed for that purpose. Attorney General v. Andrew, 3 Ves. 633. Andrew v. Merchant Tailors’ Co. 7 Ves. 223. Andrew v. Trinity Hall, 9 Ves. 525. Wherever it appears that a general object of charity is intended, and the purpose is not unlawful and void, the right of the heir at law is divested. It is impossible to look at the paper ac[596] companying the donation of Count Rumford to the American Academy, without perceiving that a general purpose of promoting the public good, which by law is deemed a charity, was intended, In any possible aspect in which the claim of the college can be placed, it appears to the court impossible to perceive any tenable ground upon which their right to the whole or any part of the funds can be maintained, and that their claim therefore must be dismissed.
II. But the question then remains, whether the court can and ought to grant the relief prayed for by the plaintiffs in their bill, by enabling them to apply the trust property according to the general intent and purpose of the donor, but at the same time to vary in some degree from the precise mode by him pointed out for the attainment of that general purpose, upon the ground that the particular mode is impracticable. And we have no doubt that the court has authority to grant, and they are entitled to have, the relief prayed for.
It is now a settled rule in equity that a liberal construction is to be given to charitable donations, with a view to promote and accomplish the general charitable intent of the donor, and that such intent ought to be observed, and when this cannot be strictly and literally done, this court will cause it to be fulfilled, as nearly in conformity with the intent of the donor as practicable. Where the property thus given is given to trustees capable of taking, but the property cannot be applied precisely in the mode directed, the court of chancery interferes and regulates the disposition of such property under its general jurisdiction on the subject of trusts, and not as administering a branch of the prerogative of the king as parens patrice. The distinction is clearly pointed out in a recent case, and expressed thus: “ The law upon cases of this sort is now reduced to clear and distinct principles. Where there is a general indefinite charitable purpose not fixing itself upon any particular object, the disposition is in the king by the sign manual,” as parens patrice; “ but where the gift is to trustees, with general or some objects pointed out, the court will take upon itself the execution of the trust.” Ommanney v. Butcher, Turn. & Russ. 270.
[597] Among a great variety of cases, where this salutary power will be interposed, is that where a general charitable intent is manifested, but where from some cause it cannot be precisely carried into effect: as where the trustees will not accept; Attorney General v. Andrew, 3 Ves. 633 ; Andrew v. Merchant Tailors’ Co. 7 Ves. 223; where a vicar was presented without a required recommendation ; Attorney General v. Boultbee, 2 Ves. Jr. 380: 3 Ves. 220; where the objects of the charity are not sufficient to absorb the whole fund; Attorney General v. Wansay, 15 Ves. 231. Where all the objects have been satisfied, if there be any surplus, the court will apply it to objects of a like kind, as nearly following the intent of the donor as practicable. Attorney General v. Coopers’ Co. 19 Ves. 189. Attorney General v. Wansay. 15 Ves. 231. Attorney General v. Mayor of Bristol, 2 Jac. & Walk. 294. In such case the. court will endeavor to follow out the apparent general design of the donor, by extending the benefit to others standing in the same relation or circumstances : as to another distinct college who will assume to perform the duties ; Attorney General v. Andrew, ub. sup.; to others of the same denomination of Christians, where the intent waste benefit his own sect; Attorney General v. Wansay, ub. sup.; to daughters as well as sons, where sons only are named, lb. What is the nearest method of carrying into effect the general intent of the donor must of course depend upon the subject matter, the expressed intent, and the other circumstances of each particular case, upon all which the court is to exercise its discretion.
We think there is no difficulty in discovering from Count Rumford’s communication what his general and primary intention was. This intent is expressed in the first sentence.
“ Desirous of contributing efficaciously to the advancement of a branch of science which had long employed his own attention, and which appeared to him to be of the highest importance to mankind, and wishing to leave a lasting testimony of his respect for the American Academy,” &c. he then proceeds to direct that the income of the fund shall be given once in every second year as a premium to the author of the most important discovery or useful improvement which shall have neen made [598] and published in America or the American Islands within two years preceding, on heat or on light, the preference being given to such discoveries as shall in the opinion of the academy tend most to promote the good of mankind. He then proceeds to • give directions as to the formalities to be observed. He after-wards provides, that if during any term of two years no new discovery or improvement shall be made in any part of America, relative to either of the subjects of light or heat, which in the opinion of the Academy shall be of sufficient importance to deserve the premium, in that case the value is to be reserved and laid out in the purchase of additional stock to augment the capital; the interest arising from its occasional non-adjudication to be added to the biennial premium.
It appears manifest that the leading and primary intent of Count Rumford was to stimulate the ingenuity, and aid and encourage the experiments and researches of individuals, on the Continent or the Islands of America, to make discoveries and improvements in those two great branches of physical science, to which he had devoted his own labors, and cause them to be made public for the good of mankind. The object of dis tributing a premium biennially was indicated as an efficaciouu mode at once of animating the ambition of individuals, by an appeal to the love of distinction, and of giving notoriety to tho valuable results of such exertion, yet it was but a mode of ac complishing the great object in view.
It appears satisfactorily to the court that this object in thu mode particularly prescribed by Count Rumford cannot be attained. These grounds are sufficiently set forth in the documents accompanying the pleadings in this case. The fund han now accumulated to such an amount, that it seems manifest that there is no reasonable probability that any such improvement or discovery on the subject of light or heat is likely to be made, as in the opinion of the academy would be of sufficient importance to deserve a premium equal to two years’ income of this fund. But we are clearly of opinion, that there are various objects coming within the scope of the general intent and design of Count Rumford’s donation, which is the encouragement and [599] promotion of discoveries and improvements, upon either of the subjects of heat or light, on the Continent of America, or in the American Islands, and that the plaintiffs are entitled to the decree of the court, giving directions that the income of the fund in question shall be applied to the promotion of this general intent, regarding the directions of Count Rumford as to the mode of such appropriation, as nearly as it can be conveniently done, consistently with the efficacious promotion of the general design.
Let the cause be referred to a master to report a scheme for the accomplishment of this purpose, to be laid before the court for its consideration, and all further directions are reserved.
The master made his report on the 4th of August, and the following decree was afterwards entered : *
“ The cause coming to be heard upon the bill and answer by agreement of the parties, the substance of the plaintiffs’ bill appeared to be that Benjamin Count Rumford in his lifetime made a donation to the plaintiffs of five thousand dollars in the three per cent, stocks of the United States, as a testimony of his respect for the American Academy of Arts and Sciences, and for the purpose of promoting by premiums, to be adjudged biennially by them, the making of such discoveries relating to light and heat as should in the opinion of the plaintiffs tend most to promote the good of mankind, and which should be made and published in the American Continent or Islands within the two years next preceding the awarding of such premium, and directing the surplus income and accumulation of said fund to be invested in the stock of the United States, and the income thereof added to the said premiums. But it is alleged that the mode of awarding said premiums pointed out by the donor cannot usefully nor without defeating the general intent of the donor be strictly complied with, and that in conse[600] quenee thereof no premiums have been yet awarded, but the said fund has by the addition of the income thereof accumulated to the sum of nearly twenty thousand dollars, and the income thereof for two years has become too large for a proper premium for such discovery, and that the same cannot longer be conveniently invested in the stocks of the United States. Therefore that the plaintiffs may be authorized to dispose of the surplus income of said funds in other modes adapted to promote the general intent of the donor, and to invest said fund in more convenient securities.
“ Whereto the defendants by answer admit the material facts set forth in the bill, but allege that as residuary legatees of said Benjamin Count Rumford they are entitled to have paid over to them, for the use of the Rumford Professorship founded by said Count Rumford at said University, any portion of said fund, and of the accumulation and interest thereof, which cannot be applied in the hands of the plaintiffs to the execution of the general intent of said donor.
“ The cause having been argued by counsel, and fully considered, it appears to the court that the plaintiffs have not done any act, or neglected or omitted to do anything, whereby they have forfeited, waived or renounced the said donation, and that the President and Fellows of Harva/rd College have no right, as residuary legatees of Count Rumford, or otherwise, to claim the same or any part thereof. It further appears that the said donation was made to the American Academy for a general purpose of charity, that, namely, of promoting a useful branch of science for the benefit of mankind, that the Academy accepted the same, upon the terms stated and for the purposes contemplated by said donation, and are now under obligation to carry the general intent of the donor into effect, as far as it is practicable to do so. It further appears, that, in consequence of the impediments set forth in the bill, it is impracticable for the Academy to carry the general charitable intent of the donor into effect, in the exact and precise mode specified by him ; but considering the general and primary intent of Count Rumford to have been to awaken and stimulate the ingenuity, and encourage the researches and experiments of [601] individuals, on the Continent or Islands of America, to make im~ portátil discoveries or useful improvements upon the subjects of light or heat, and to cause them speedily to be published for the good of m.ankind, it does appear to the court, that it is quite practicable for the Academy to accomplish and carry into effect the general charitable intent and purpose of Count Rumford, by some slight alterations in the mode particularly prescribed by him for carrying the same into effect.
“ It also appears to the court, that it would tend to promote the general charitable intent of the donor to allow the plaintiffs to invest the principal of the said fund in some safe and productive securities, other than the stocks of the United States.
“ Whereupon it was ordered by the court that the matter be referred to one of the masters in chancery, to report a scheme for carrying into effect the general charitable intent and purpose of the donor, conformably to the prayer of the plaintiffs’ bill; and now John B. Davis, Esquire, one of the masters in chancery for the County of Suffolk, having reported a scheme in pursuance of said order, which, being heard and considered by the court, and [no objection being made thereto by the defendants] the same appearing reasonable and conformable to the general intent of the donor, is accepted, and it is therefore by the court ordered, adjudged and decreed, for the reasons set forth in the bill, that the plaintiffs be and they are by the authority of this court empowered to make from the income of said fund as it now exists, at any annual meeting of the Academy, instead of biennially as directed by the said Benjamin Count Rumford, award of a gold and silver medal, being together of the intrinsic value of three hundred dollars, as a premium to the author of any important discovery or useful improvement on heat or on light, which shall have been made and published by printing, or in any way made known to the public, in any part of the Continent of America, or any of the American Islands, preference being always given to such discoveries as shall in the opinion of the Academy tend most to promote the good of mankind and to add to such medals as a further reward and premium for [602] such discovery or improvement, if the plaintiffs see fit so to do, a sum of money not exceeding three hundred dollars.
“ And it is further ordered, adjudged and decreed, that the plaintiffs may appropriate from time ■ to time, as the same can advantageously be done, the residue of the income of said fund hereafter to be received, and not so as aforesaid awarded in premiums, to the purchase of such books and papers and philosophical apparatus, (to be the property of said academy,) and in making such publications, or procuring such lectures, experiments or investigations, as shall in their opinion best facilitate and encourage the making of discoveries and improvements which may merit the premiums so as aforesaid to be by them awarded. And that the books, papers and apparatus so purchased shall be used, and such lectures, experiments and investigations be delivered and made, either in the said academy or elsewhere as the plaintiffs shall think best adapted to promote such discoveries and improvements as aforesaid, and either by the Rumford Professor of Harvard University, or by any other person or persons, as to the plaintiffs shall from time to time seem best.
“ And it is further ordered, adjudged and decreed, that the said fund, or any part thereof, may be from time to time invested by the said plaintiffs either in notes, stocks or debts of the United States, or of the Commonwealth of Massachusetts, or of the City of Boston, or in stock of the Bank of the United States, or of any bank in this commonwealth, or in notes or bonds secured by pledge of any of said stocks, or by mortgage of real estate in this commonwealth, or may be deposited in trust and ón interest with the Massachusetts Hospital Life Insurance Company.”