Wheeler, Ch. J.
There is nothing in the objecton, that no motion for a new trial appears to have been filed. A jury having been waived, and the case submitted to the court, a motion for a new trial was not necessary, to entitle the plaintiff in error to a revision of the judgment.
The grounds of objection urged, to the validity of the will, which require notice, are, 1st. That the words of the will are not sufficient to pass the title; and that the county is not capable of taking under the will, the title to the property devised. 2d. That the purposes of the trust are too uncertain and indefinite to be capable of being carried into effect.
It is a familiar doctrine, that in the construction of a will, the intention of the testator is the first and great object of inquiry; and the law will not suffer the intention to be defeated, merely because the testator has not clothed his ideas in technical language. Our statute, like that of New York, and many of the other States, has swept away, as Chancellor Kent has expressed it, (4 Kent’s Com. 537) all the established rules of construction of wills, in respect to the quantity of interest con[358] veyed, by declaring, that “every estate in lands which shall “hereafter be granted, conveyed, or devised to one, although “ other words heretofore necessary at common law to transfer “an estate, in fee simple, be not added, shall be deemed a fee “simple, if a less estate be not limited by express words, or do “not appear to have been granted, conveyed or devised, by “ construction, or operation of law.” (Hart. Dig. Art. 169.)
It cannot be doubted, that by employing the words, “I wish “the county in which I die and am buried, to have and enjoy, “for the benefit of public schools, two-thirds of the land in the “county I am buried in,” taken in connection with the words “my land,” and “the land I own,” used in other parts of the will, and in the context, the testator meant to devise an estate in lands; and as there are no words in the will, indicative of an intention to devise a less estate, the devise must be held to pass an estate in fee, or the whole estate of the grantor. (Hart. Dig. Art. 168.) Indeed, it is plain, that a less estate could not have been intended, because the trusts with which the testator has sought to charge his lands, and the acts which, by his will, he has required to be done, could not be performed, unless an estate in fee simple be taken by the devisee. It is a rule of construction of the common law, independently of the statute, that in every case, where land is charged with a trust which cannot be performed, or where the will directs an act to be done, which cannot be accomplished, unless a greater estate than one for life be taken, it becomes necessary that the devise be enlarged to a fee. (4 Kent’s Com. 540; Collier v. Walker, 6 Co. Rep. 16; Doe v. Woodhouse, 4 Term Rep. 89.) But the necessity of resorting to this rule of the common law no longer exists. It is clear, that the testator intended to devise an estate in lands; and as a less estate is not limited, by express words, and does not appear to have been devised by construction, or operation of law, it must be deemed to be an estate in fee. Indeed, the intention of the testator, to be collectéd from the whole will, to devise an estate in fee simple, is too clear for doubt or controversy.
[359] There is as little doubt of the capacity of the county to take an estate in lands, by grant or devise. The statute declares that “ each county which now exists, or which may be hereafter established in this State, shall be a body corporate and politic.” (Hart. Dig. Art. 206.) They may sue and be sued, plead and be impleaded. (Id. Art. 207.) They may take and hold, and dispose of, private property for municipal uses; (Id. Art. 213, et seq.) or such uses and purposes as subserve the public good, and the exercise of the local and subordinate legislative powers, with which they may be invested by the public law of the State, or by private legislative acts. (Angell & Ames on Corp. 30; 2 Kent’s Com. 275, and notes.) Though public corporations, they have the same capacity in this respect and to this extent, as a private corporation, to take and hold property in trust.
In the great case upon the construction of Girard’s will, Judge Story says : “Although it was, in early times, held that a corporation could not take and hold real or personal estate in trust, “upon the ground that there was a defect of one of the requisites to create a good trustee, viz., the want of confidence in “ the person; yet that doctrine has been long since exploded as “unsound, and too artificial; and it is now held, that where the “corporation has a legal capacity to take real or personal “estate, it may take and hold it upon trust, in the same man“ner and to the same extent, as a private person may do. “It is true that, if the trust be repugnant to, or inconsistent “with the proper purposes for which the corporation was crested, that may furnish a ground why it may not be compelled “to execute‘it. But that will furnish no ground to declare the “trust itself void, if otherwise unexceptionable, but it will sim“ply require a new trustee to be substituted by the proper “court possessing equity jurisdiction, to enforce and perfect “the objects of the trust.” (Vidal v. Girard’s Ex’rs, 2 How. Rep. 187-8.)
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Wheeler, Ch. J.
There is nothing in the objecton, that no motion for a new trial appears to have been filed. A jury having been waived, and the case submitted to the court, a motion for a new trial was not necessary, to entitle the plaintiff in error to a revision of the judgment.
The grounds of objection urged, to the validity of the will, which require notice, are, 1st. That the words of the will are not sufficient to pass the title; and that the county is not capable of taking under the will, the title to the property devised. 2d. That the purposes of the trust are too uncertain and indefinite to be capable of being carried into effect.
It is a familiar doctrine, that in the construction of a will, the intention of the testator is the first and great object of inquiry; and the law will not suffer the intention to be defeated, merely because the testator has not clothed his ideas in technical language. Our statute, like that of New York, and many of the other States, has swept away, as Chancellor Kent has expressed it, (4 Kent’s Com. 537) all the established rules of construction of wills, in respect to the quantity of interest con[358] veyed, by declaring, that “every estate in lands which shall “hereafter be granted, conveyed, or devised to one, although “ other words heretofore necessary at common law to transfer “an estate, in fee simple, be not added, shall be deemed a fee “simple, if a less estate be not limited by express words, or do “not appear to have been granted, conveyed or devised, by “ construction, or operation of law.” (Hart. Dig. Art. 169.)
It cannot be doubted, that by employing the words, “I wish “the county in which I die and am buried, to have and enjoy, “for the benefit of public schools, two-thirds of the land in the “county I am buried in,” taken in connection with the words “my land,” and “the land I own,” used in other parts of the will, and in the context, the testator meant to devise an estate in lands; and as there are no words in the will, indicative of an intention to devise a less estate, the devise must be held to pass an estate in fee, or the whole estate of the grantor. (Hart. Dig. Art. 168.) Indeed, it is plain, that a less estate could not have been intended, because the trusts with which the testator has sought to charge his lands, and the acts which, by his will, he has required to be done, could not be performed, unless an estate in fee simple be taken by the devisee. It is a rule of construction of the common law, independently of the statute, that in every case, where land is charged with a trust which cannot be performed, or where the will directs an act to be done, which cannot be accomplished, unless a greater estate than one for life be taken, it becomes necessary that the devise be enlarged to a fee. (4 Kent’s Com. 540; Collier v. Walker, 6 Co. Rep. 16; Doe v. Woodhouse, 4 Term Rep. 89.) But the necessity of resorting to this rule of the common law no longer exists. It is clear, that the testator intended to devise an estate in lands; and as a less estate is not limited, by express words, and does not appear to have been devised by construction, or operation of law, it must be deemed to be an estate in fee. Indeed, the intention of the testator, to be collectéd from the whole will, to devise an estate in fee simple, is too clear for doubt or controversy.
[359] There is as little doubt of the capacity of the county to take an estate in lands, by grant or devise. The statute declares that “ each county which now exists, or which may be hereafter established in this State, shall be a body corporate and politic.” (Hart. Dig. Art. 206.) They may sue and be sued, plead and be impleaded. (Id. Art. 207.) They may take and hold, and dispose of, private property for municipal uses; (Id. Art. 213, et seq.) or such uses and purposes as subserve the public good, and the exercise of the local and subordinate legislative powers, with which they may be invested by the public law of the State, or by private legislative acts. (Angell & Ames on Corp. 30; 2 Kent’s Com. 275, and notes.) Though public corporations, they have the same capacity in this respect and to this extent, as a private corporation, to take and hold property in trust.
In the great case upon the construction of Girard’s will, Judge Story says : “Although it was, in early times, held that a corporation could not take and hold real or personal estate in trust, “upon the ground that there was a defect of one of the requisites to create a good trustee, viz., the want of confidence in “ the person; yet that doctrine has been long since exploded as “unsound, and too artificial; and it is now held, that where the “corporation has a legal capacity to take real or personal “estate, it may take and hold it upon trust, in the same man“ner and to the same extent, as a private person may do. “It is true that, if the trust be repugnant to, or inconsistent “with the proper purposes for which the corporation was crested, that may furnish a ground why it may not be compelled “to execute‘it. But that will furnish no ground to declare the “trust itself void, if otherwise unexceptionable, but it will sim“ply require a new trustee to be substituted by the proper “court possessing equity jurisdiction, to enforce and perfect “the objects of the trust.” (Vidal v. Girard’s Ex’rs, 2 How. Rep. 187-8.)
It is unnecessary to examine the cases cited by counsel for the appellee, to show that devises or bequests to unincorporated societies, for charitable uses, where the objects or beneficiaries [360] were indefinite or uncertain; or that charities, where no trust is interposed, and no legal interest is vested, and where the charity is general and indefinite, both as to persons and objects, and too vague to be claimed by those for Avhom the beneficial interest was intended; cannot be upheld and enforced by a court of equity in this country, where the statute of 43 Elizabeth, called the statute of charitable uses, is not in force. It might suffice to say, that the present is not such a case. Rut the case mainly relied on, and perhaps the best considered and most authoritative case cited by counsel, in support of the objection that the beneficiaries, or objects of the trust, in the present case, are too indefinite and uncertain to enable a court of equity to uphold the devise, is the case of The Baptist Association v. Hart, 4 Wheat. Rep. 1. Rut that decision would not be an authority for the doctrine contended for, as applied to the present case. That was a bequest of personal property, to an unincorporated society, “The Baptist Association that, for “ ordinary, meets at Philadelphia annually, which I allow to be “ a perpetual fund for the education'of youths of the Raptist “ denomination, who shall appear promising for the ministry, “always giving a preference to the descendants of my father’s “family.” The court held, that the association, not being incorporated, could not take this trust, as a society; that the individual associates could not take, as trustees, they being a body vague and uncertain; and that no legal interest vested; and that legacies, to charities, were sustained in England, under the statute of Elizabeth only. The devise, in the present case, is to a corporation, capable, as we have seen, of taking the legal estate in trust; and the objects of the charity are certain and definite. The case of the Raptist Association v. Hart, therefore, clearly is not a case in point. Rut, if that were a case in point, the decision has been greatly modified, if its authority has not been entirely overthrown, by subsequent investigations and decisions; and particularly by the great case of Vidal v. Girard’s Executors, decided by the same learned court. (2 How. Rep. 127.) In distinguishing this latter case from the former, [361] Mr. Justice Story, delivering the unanimous opinion of the court, observed that, in the former case, “the donees were an “unincorporated association, which had no legal capacity to “take and hold the donation, in succession, for the purposes of “the trust, and the beneficiaries were also uncertain and indefinite.” Both circumstances, therefore, concurred; a donation •to trustees incapable of taking, and beneficiaries uncertain and indefinite; and he observes that the court came to the conclusion, that at the common law, antecedent to and independent of the statute of 43 Elizabeth, ch. 4, no donation to charity could he enforced in chancery where both of these circumstances, or rather, where both of these defects occurred. He further observes, that the authorities and lights upon which the court decided, were in no small degree shadowy, obscure and flickering. The court review the additional authorities, now brought to their attention; and, observing that very strong additional light has been thrown upon the subject, conclude, that these new sources of information “establish, in the most satisfactory “and conclusive manner, that cases of charities, where there “ were trustees appointed for general and indefinite charities, “as well as for specific charities, were familiarly known to, “and acted upon, and enforced in the Court of Chancery.” “Whatever doubts, therefore, (they say) might properly be entertained upon the subject, when the case of the Trustees of “the Philadelphia Baptist Association v. Hart, (4 Wheat. Rep. “1,) was before this court, (1819,) those doubts are entirely “removed by the late and more satisfactory sources of information to which we have alluded.”
And in the later editions of his Commentaries, Judge Story, upon a review of the authorities, attains a conclusion the contrary of that expressed in his first publication, and says: “ Upon “the whole, it seems now to he the better opinion, that the “jurisdiction of the Court of Chancery over charities, where no “trust is interposed; or, where there is no person in esse, “capable of taking; or, where the charity is of an indefinite “nature; is to be referred to the general jurisdiction of that “court, anterior to the statute of Elizabeth.” (2 Story’s Eq. [362] Jur. § 1162.) Chancellor Kent, in a learned note to his Commentaries, where he examines this subject, quotes the observation of Chancellor Walworth, “that the decision in the case of “the Baptist Association v. Hart, 4 Wheat. Rep. 1, is generally admitted to be wrongand after reviewing the authorities, says, “the fact, I think, may be considered indisputable, “that chancery uses are lawful uses by the common law, and “that the statute of Elizabeth was only an ancillary remedy, “now supplied by chancery, as the rightful original tribunal for “such trusts.” (2 Kent’s Com. 288, note, 8th edit.) Similar opinions appear to have been held in Massachusetts, New York, (McCartee v. Orphans’ Asylum Society, 9 Cow. Rep. 437; Van Duzer v. Van Duzer, 6 Paige’s Rep. 367;) Pennsylvania, (Whitman v. Lex, 17 Serg. & R. Rep. 88;) Kentucky, (Moore v. Moore, 4 Dana’s Rep. 357;) Tennessee, (Dickson v. Montgomery, 1 Swan’s Rep. 348;) Mississippi, (Wade v. American Colonization Society, 7 Sm. & Marsh. Rep. 663;) and in many, if not most of the other States; and see cases cited in notes to Perkins’ Ed. of Jarm. on Wills, vol. 1, p. 194; Am. notes to Rop. on Leg. vol. 2, p. 1115; 4 Kent’s Com. 8th ed. 508, and notes; 2 Story’s Eq. Jur. § 32.
But it is unnecessary, in the present case, to decide whether equity will enforce a donation to charitable uses, where the donees are uncertain, or where the beneficiaries, and objects of the trust, are uncertain and indefinite. There is no such uncertainty in the present case. We have seen that the trustee is capable of taking and holding the estate in trust. The purposes of the trust are definite and certain. And if those purposes are germain to the objects of the incorporation; if they relate to matters which will promote, and aid, and perfect those objects; there can be no legal impediment to the corporation taking the devise upon trust. (2 How. Rep. p. 189, and see the case of Inglis v. The Sailor’s Snug Harbor, 3 Pet. Rep. 99.) That such are the purposes of the trust, is sufficiently apparent, by reference to the subjects, confided by law, to the management and local government of the counties, and particularly the [363] laws which enjoin upon them the duty of executing the identical trusts, which this devise was intended to aid in advancing and perfecting.
By the constitution of the State, the Legislature is required “to make suitable provision for the support and maintenance of public schoolsto “ establish free schools throughout the State,” and “furnish means for their support, by taxation on property;” “to set apart not less than one tenth of the revenue “of the State, derivable from taxation, as a perpetual fund, “which fund shall be appropriated to the support of free public “schools.” (Const. Art. 10, §§ 1, 2.) The establishment of public schools throughout the State, is thus provided for and enjoined by the paramount law. And the grants of public land, heretofore made for public schools, are recognized and confirmed to the counties. (Id. § 3, 4; Acts of 26 Jan. 1839, and 5 Feb. 1840, Hart. Dig. p. 290, 292.) And by act of the 16th of January, 1850, it is provided, that every county which has been, or may hereafter be established, shall have surveyed and set apart four leagues of land, for the purposes of education, in conformity to the act of the 26th of January, 1839. (Hart. Dig. Art. 896.) The act of the 21st of January, 1854, “to establish a system of schools, (Laws of 5th Leg. ch. 18,) sets apart two millions of dollars, in the treasury of the State, “as a school fund, for the support and maintenance of public schools;” and constitutes the chief justices and county commissioners of the several counties, a board of school commissioners for their respective counties, to form their respective counties into school districts, and order an election of trustees for each district. (Id. § 2.) The trustees, so elected, are constituted a body corporate and politic, with the capacity to sue and be sued, to hold and dispose of property, and “do such acts and things “ as are incidental and necessary to the performance of their “duties,” as prescribed by the law. (Id. § 15.) This, and the subsequent Acts of the 29th of August, 1856, and the 5th of February, 1858, (Laws 6th Leg. p. 107; Id. 7th Leg. 124,) contain further provisions for the establishment and support of [364] public schools, which it is not necessary to our present purpose to notice.
It is thus seen, that the counties are empowered, by law, to take and hold land in trust, for the uses and purposes of the donation here in que'stion; and that they are provided, by law, with the requisite machinery and means, and entrusted with the duty of executing the trust, in the manner, and for the identical objects and purposes, contemplated by the donor. There is, therefore, no foundation for the objection, that the county is incompetent to take, as trustee; or, that the objects of the trust are indefinite; or, that the county is incompetent to take and administer the trust. It is true, the individual beneficiaries, who shall be recipients of the donor’s bounty, are not known; if they were, it would not be a charity. The counties are entrusted with the duty, to provide for the support of indigent persons, resident in the county, (Hart. Dig. Art. 309;) and if cannot be doubted, they are competent to take and administer a charitable bequest for that purpose. . \
There is nothing in the objection, that the county had not paid the taxes upon the land. If the true construction of the whole will and codicil be, that the payment of taxes, by the county commissioners, was a condition annexed to the devise, it cannot be supposed that the payment was intended to precede the vesting of the estate; it must have been intended to follow it. And it is well settled, that, if the act does not necessarily precede the vesting of the estate, but may accompany or follow it; if this is to be collected from the whole will, the condition is subsequent. (Finlay v. King, 3 Pet. Rep. 346.) The will and codicil contain a general devise, in words importing a present interest, and the effect manifestly was, to vest the estate in the trustee, upon the death of the devisor.
Our opinion, therefore, is, that the will contains a legal and valid devise of the property in question, to the county, in trust, for the uses and purposes therein expressed. To hold otherwise, would be to deny to the courts of this State, the power to uphold or enforce a charitable bequest, in any case. Such a [365] determination, it is believed, would not find countenance in any well considered decision.
We are of opinion, therefore, that the judgment be reversed, and such judgment be here rendered, as the court below ought to have rendered.
Reversed and reformed.