Bartol, C. J.,
delivered the opinion of the Court.
These are cross-appeals taken from a decree of the Circuit Court of Baltimore City, declaring invalid, several bequests made in the last will and codicils of Susie Duke Callow, deceased, and establishing as valid certain other bequests therein contained.
The will was dated on the 2nd day of March 18T0, and the several codicils thereto were dated respectively April 25th 18T0, July 20th 18T1, and November 30th 18T5. The testatrix died in June 18T6.
The will and codicils were duly executed and were admitted to probate on the 13 th day of July 18T6, and letters testamentary were granted to Samuel Gr. Taylor, the executor therein named. Soon after the lapse of thirteen months thereafter, the original bill of complaint was filed by Margaret Ann Smith by her next friend, heir-at-law and next of kin of the testatrix, alleging that certain bequests in the will and codicils were invalid. After-[387]*387wards by agreement tbe original bill was withdrawn, and the second amended bill of complaint, was substituted therefor.
All the parties in interest claiming as legatees were made parties to the cause. Most of the material facts were established by the written agreement of the solicitors filed in the case; among other things, the correct names of the several corporations mentioned and referred to in the will, were agreed to, and admitted to be the same corporations intended by. the testatrix, so that no question of misnomer arises in the case. The several Acts and certificates of incorporation were also admitted as if they were duly proved, and it was agreed that the same might be read at the hearing.
The several bequests in tbe will are therein numbered from one to fourteen; of these Numbers nine, ten, eleven, twelve and thirteen are admitted to be valid, and are not questioned or impeached. The others, viz., Numbers one, two, three, four, five, six, seven and fourteen are alleged in the bill of complaint to be invalid, and also the two bequests of $1000 each, in the codicil dated 30th day of November 1875, given in lieu of the $2000 which had been bequeathed to Mrs. Matilda Christopher by the eighth item of the will, and which had been revoked in consequence of her .death.
Of the several bequests thus impeached, the Circuit Court decided that Numbers one, two, three and seven were valid, and from its decree in this respect the complainant has appealed; and as to Numbers four, five, six and fourteen, and those contained in the codicil of November 30th 1875, the Circuit Court decided that they were invalid, and from this part of the decree the several legatees therein mentioned have appealed; and they have also appealed from the decision of the Circuit Court as to the proper disposition to be made of the fund in cases where the bequests fail to take effect by reason of their invalidity. This last [388]*388question will claim our consideration after we shall have disposed of the several disputed items of the will.
The will first disposes of certain articles of household furniture, clothing and personal ornaments according to the directions contained in a schedule thereto annexed, afterwards somewhat enlarged by a codicil, dated July 20th 1871. The testatrix then devises and bequeaths all the rest and residueof her estate, real, personal and mixed, to Samuel G-. Taylor, the executor, in trust that he will sell the same, and after the payment of debts and funeral expenses out of the proceeds, pay the legacies following,, viz., Then follow the-names of the several legatees, and the amounts of the several pecuniary legacies to them, numbered from one to fourteen. The will then provides as follows: ‘ ‘ Should the proceeds of said property when sold and converted into money, be more than sufficient to pay the aforegoing legacies in full, it is my will, and I do-hereby order and direct my said executor to distribute-the surplus remaining in his hands, amongst said legatees pro rata. And in case the proceeds^ should prove insufficient to pay said legacies, it is my will, and I do order and direct the same ratably.”
By the last clause of the will, the executor and trasteéis authorized and empowered to execute deeds, conveyances, &c., of the property directed to be sold.
The property has been sold, and the proceeds have-proved insufficient to pay the pecuniary legacies, if these were all legal and valid. So that there is no surplus as contemplated by the will in one of its aspects. The pecuniary legacies amount to $41,500, and it appears from the record that the money in the hands of the executor applicable to-their payment is $27,792.23, of which the sum of $2025 was the proceeds of the sale of real estate.
1. The first bequest is $4500 to “ The Missionary Society of the Methodist Episcopal Church, incorporated by the Legislature of the State of New York.”
[389]*389The existence of the corporation is admitted, and its charter is produced and agreed to be read as if duly proved.
It is objected to this bequest, first, that the corporation has no power under its charter, to take personal property by bequest, and secondly, that being a foreign corporation, it is incapable of taking lands in Maryland, or any interest in lands in this State, and consequently in so far as the legacy is ^erived or payable from the sale of land, it is void.
First. The sixth section of the charter, after declaring that the corporation is capable of receiving, taking and holding any real estate by virtue of any devise, subject to certain limitations therein mentioned, provides “ that the said corporation shall be also competent to act as trustee in respect to any devise or bequest pertaining to the objects of said corporation, and devises and bequests of real or personal property may be made directly to said corporation, or in trust for any of the purposes comprehended in the general purposes of said society; and such trusts may continue for such time as may he necessary to -accomplish the purposes for which they may be created;”
There can be no doubt of the power of the corporation, under this section, to take the pecuniary bequest under Mrs. Callow’s will. Being a foreign corporation, the provisions of the 38th section of our Bill of Rights have no application to it, and impose no restraint upon the power of the testatrix to make to it a valid bequest of personal property, as was decided in Vansant vs. Roberts, 3 Md., 119, 128, 129, and Brown vs. Thompkins, 49 Md., 431.
Second. As to the objection that a part of the fund in the hands of the executor, consists of the proceeds arising from the sale of real estate. We are of opinion that the effect and operation of the will, is to convert the whole estate into personalty, and to appropriate, the whole [390]*390blended fund, called “money” in the will, to the purpose of paying the debts, funeral expenses, and pecuniary legacies. Hurtt vs. Fisher, 1 H. & G., 88; Leadenham vs. Nicholson, 1 H. & G., 267; Thomas vs. Moore, 1 Md. Ch., 298; Curr vs. Ireland. 4 Md. Ch., 251; Smithers vs. Hooper, 23 Md., 273; Orrick’s Case, 49 Md., 104, 105; Given vs. Hilton, 95 U. S., 591; Singleton vs. Tomlinson, L. R., 3 Appeal cases, 404.
• The will before us, like that in the case last cited, directs “that the whole estate, he turned into money, sc as to be converted out and out, not for a special purpose only, but for the general purposes of the will;” and after satisfying the several pecuniary legacies named in the will, the surplus, if any, is disposed of in favor of the same legatees, no part of it could go to the heir as real estate.
While it may be conceded that a devise of lands in Maryland to a foreign religious corporation would be held invalid as against the policy of the law, and contrary to the spirit of the 38th Article of the Declaration of Rights, which is analogous to the British Mortmain Acts, yet. it by no means follows, that where, as in this case, the will directs that the whole estate, real and personal, shall be converted into money, and constitute a blended fund for the purpose of paying debts and legacies, and the whole surplus is disposed of as mone}'; and a pecuniary legacy is given to a foreign religious corporation, any objection can be made to' the validity of the legacy because a portion of the fund out of which it is directed to be paid, is derived from the sale of real estate.
In this case, there is a clear and manifest intent to disinherit the heir. — The whole fund must be considered and treated as money — and the bequest to the foreign religious corporation, not being affected by the provision of the Declaration of Rights — was rightly held by the Circuit Court to be a valid bequest.
[391]*391The bequest in the seventh item, of the will, is in these words, “ To my highly esteemed friend and pastor, the Eeverend Leonard M. Gardner, as a token of my respect and gratitude, the' sum of five thousand dollars.”
We concur in the opinion of the Circuit Court, that this is a perfectly valid bequest. It is given to Mr. Gardner in his personal and individual character, for his own use absolutely, not in his character as a minister or preacher. It. does not, therefore, come within the terms of Art. 38, of the Declaration of Eights. • The legatee is designated by the testatrix as her “esteemed friend and pastor.” These words are descriptive of the person intended; the gift is to the man, and not to the preacher “as such,” within the meaning of Art. 38, which cannot be construed as disqualifying him, because of his vocatiQn, from receiving a legacy, or acquiring property without the sanction of the Legislature.
The second clause of the will gives to “the Methodist Preachers’ Aid Society of Baltimore,” $4500. The third, to “the Home of the Aged of the Methodist Episcopal Church of Baltimore City,” $5000. The fifth, to “the Trustees of the Strawbridge Methodist Episcopal Church, situated on the corner of Garden and Biddle streets,” $2000. The sixth, to “the Trustees of the United Presbyr terian Church, situated on the corner of Madison avenue and Biddle streets,” $1000. And the codicil of November 30th 1875, gives to “ the Baltimore City Missionary and Church Extension Society of the Methodist Episcopal Church, incorporated under the General Laws of the State of Maryland,” $1000.
These five legacies will all be considered together, the several legatees are domestic corporations, the two last named were incorporated under the general laws of the State, and the others were incorporated by special Acts of Assembly, each of them is entitled to hold property to a limited amount, and it is admitted that if the several [392]*392pecuniary legacies given them hy the will he held valid, the funds thus accruing to them will not be in excess of the limitations fixed "by their charters. It is conceded that the three last named are religious corporations within the meaning of the 38th Article of the Declaration of Rights. The two first named, viz., “ The Methodist Preachers’ Aid Society,” and “The Home of the Aged of the Methodist Episcopal Church,” it is contended, are eleemosynary associations, not religious or sectarian in their character, and consequently not within the terms of the 38th Article ; and so the Circuit Court decided, and for that reason sustained as valid the legacies • given to them. In the view we take of the case, it seems to us to be unnecessary to pass upon that question. Assuming them to be' religious corporations within the meaning of the 38th Article, and subject to the disabilities provided. by that Article, without however so deciding, we shall consider all the five corporations named as standing in the same category, and incapable of taking the bequests without the sanction of the Legislature. And this brings us to the consideration of the question whether such sanction has been validly and effectually given. We quite agree with the complainant’s solicitors in the position that the power to .take and hold property to a specified amount expressed in the charters, whether the same are created by express legislative enactment, or formed under the general corporation laws, cannot be construed as a sanction by the Legislature within the intent and meaning of the 38th Article, conferring upon them the capacity to take under a devise or bequest. Such a construction would render nugatory the important and carefully considered provisions of the 38th Article. In our opinion, the sanction of the Legislature contemplated and required by that Article must he expressly given to each particular devise or bequest, in order to render it valid. Such has been the uniform and invariable construction given to [393]*393that Article, or to similar provisions in the organic law, as is shown by the course of legislation for many years ; and the question was so decided in Orriclc’s Case, 49 Md., 105. This point does not distinctly appear in the opinion delivered hy this Court, hut hy reference to the record in Orrick’s Case, it will appear that “the Lutheran Congregation of Boonsborough,” one of the legatees in Stonebraker’s will, was duly incorporated, and both hy the Acts of 1802 ch. 110, and 1815 ch. 222, and by the provisions in -its charter, was authorized to receive and hold property to a limited amount, and in its-answer these provisions of law were relied on to show a legislative sanction of the bequest, yet it was decided that the bequest was void, because of the incapacity of the corporation to take it, there being in that case no express sanction of the bequest by the Legislature.
In this case, the Legislature has expressly sanctioned the several bequests now under consideration by the Act of 1878, .ch. 58, and the question arises as to the effect of that Act.
A very able and ingenious argument has been made by the complainant’s solicitors for the purpose of showing that the Act of 1878, cannot operate to make these bequests valid, for the reason that they are given in the will, by words in the present tense, and according to its terms, must vest or take effect, if at all, eo inslanii, upon the death of the testatrix, when the legatees were incapable to take under the 38th sec. of the Declaration of Eights, consequently the right to the property or fund vested in the heir or next of kin, and could not be divested by a subsequent Act of Assembly.
In support of this position, we have been referred, •among others, to Baptist Association vs. Hart’s Ex’r, 4 Wheaton, 27, and Inglis vs. Trustees, &c., 3 Peters, 99. In each of those cases, the bequests were made to unincorporated associations. In the former, they were held to be [394]*394void; in the latter, they were declared to be valid, because by the terms of the will, as construed by a majority of the Court,1 the gifts were to take effect in futuro, upon the contingency of the association being legally incorporated. The bequests were supported as executory devises, — whereas, under the will of Mrs. Callow, these bequests being made in the present tense, and not upon the contingency of the legislative sanction being thereafter given, within the period prescribed by the rules of law, relating to perpetuities, cannot take effect according to the terms of the will, and therefore, it is argued they must be declared invalid.
We have carefully considered this question, and are of opinion, the doctrines asserted by the Supreme Court, in the cases cited, are inapplicable. — -Here the legatees are duly incorporated, and capable of taking the bequests, except for the disability imposed upon them by the 38th section; but that section provides that the bequests shall not be void, if they receive the prior or subsequent sanction of the Legislature. Now, this provision of the organic law, must be presumed to have been known to the testatrix, and her several bequests, which she knew would be invalid, unless sanctioned by the Legislature, must be construed as having been made subject to the will of the Legislature; upon whom the Constitution confers the power of granting or refusing its sanction. By the terms of the Article, this sanction may be given after the death of the testatrix. If it operates to divest the heir or next of kin of property or rights which have temporarily devolved upon them, this results from the provisions of the organic law, which has clothed the Legislature with the power to sanction the legacies; when sanctioned, the legislative act relates back to the death of the testatrix, and the legacies take effect from that time.
In such case no rights vested in the heir or next of kin, which were not subject to be divested, by the Act of [395]*395the Legislature, sanctioning the legacies. Such we understand to he the true construction and effect of the 38th Article.
This question has been lately decided in England, Ex’r vs. Vestry of Prince George’s Parish. 53 Md., 466. In that case the will of Ursula Wilcoxen dated August 19th 1876, bequeathed $500 to the Vestry of Prince George’s Parish. It was contended that this bequest was void under the 38í7¿ Article.
The Legislature, at the session of 1878, the first which occurred after the probate of the will, sanctioned the bequest (Act of 1878, ch. 43.) This Court held the Act valid and effectual to entitle the Vestry to the legacy.
It was then said “ No laches can be attributed to the Vestry. It must be assumed that the framers of the Constitution intended that a reasonable time should be allowed for obtaining the assent of the Legislature to such bequests, or otherwise many of them would fail by reason of the legatees having had no opportunity to apply for such assent, and the Legislature no opportunity to grant it, by reason of its not being in session more than once in two years, unless called together in extra session by the Governor. The assent of the Legislature to this bequest was given at its first session-after the death of the testatrix, and we are of opinion that it was in time to impose upon her executor the obligation to pay it.” •
In that case, as in this, the bequest was made in the present tense. No argument has been addressed to us, to raise a doubt as to the correctness of that decision, or to induce us to depart from it. In this case, the legislative sanction was given at the first session after the death of the testatrix. There were no laches or unreasonable delay, on the part of the legatees, and it follows therefore, that the several legacies named in the second, third, fifth and sixth items of the will, and the bequest to the “ Baltimore City Missionary and Church Extension Society [396]*396-of the Methodist Episcopal Church,” in the codicil of November 30th 1875, are legal and valid bequests.
We have next to consider the bequests in the fourth and fourteenth items of the will, and the bequest of $1000, given by the codicil of November 30th 1875, to “the trustees of the Strawbridge Methodist Episcopal Church, for the benefit of the Ladies’ Mite Society of said Church, situ-r ated on the corner of Garden and Biddle street in the City of Baltimore.” These were decided by the Circuit Court to be invalid, because of the vagueness and uncertainty in the objects of the bequest, and indefiniteness in ascertaining the beneficiai-ies for whom the gift was intended.
It is obvious that the bequest of $500 to the executor, in the fourteenth clause, to be invested, and the interest thereon to be applied by him to the keeping in order of the lot and vault of testatrix in Greenmount Cemetery, is void, as attempting to create a trust which cannot be enforced. This is conceded, and no appeal has been taken from the decree of the Circuit Court declaring it invalid.
The fourth clause of the will is as follows :
“To the Church Extension of the Methodist Episcopal Church, incorporated bjr the Legislature of Pennsylvania, the sum of ten thousand dollars, to be used as part of the * Perpetual Loan Fund ’ of said Society, and to bear the name of the Durham Loan Fund.”
The legatee is duly incorporated, and capable under its -charter, of taking the bequest for the general purposes of the association; but the testatrix has chosen to declare the particular use and purpose to which the fund shall be applied, and the question is, whether the use so declared is so indefinite as to render the legacy void.
It appears by the agreed statement of facts “ that by a rule adopted by the corporation before the making of testatrix’s will, and which is still in force, any one donating $5000 or more to the loan fund, may designate the name [397]*397by which said contribution shall he known ; the said loan fund is set apart to be loaned to necessitous Churches of the Methodist Episcopal Church, erected from time to time within the limits of the United States and its territories, and the beneficiaries and recipients thereof, are such of said Churches, as the committee in charge of said fund, for the time being, may in their discretion select.”
It thus appears that the legacy is not given to the corporation for its own use; it cannot, according to the terms of the will, be used for its general purposes; but the testatrix by directing that it shall beheld as a part of the Loan Fund, has constituted the corporation a trustee, charged with the duty of employing the fund only for the use and benefit of necessitous Methodist Churches in the United States. These are the real beneficiaries for whose use the legacy is given. It seems to us very clear that such a trust is so indefinite that it could not be enforced.
According to the uniform course of decisions in this State, a trust cannot he upheld unless it be of such a nature that the cestuis que trust are defined, and capable of enforcing its execution by proceedings in a Court of chancery. Dashiell vs. Attorney-General, 5 H. & J., 392; Same vs. Same, 6 H. & J., 1; Wilderman vs. M. & C. C. of Balt., 8 Md., 551, 555; Needles vs. Martin, 33 Md., 609; Meade vs. Beale, Taney’s C. C. Decisions, 389.
Here the selection of the necessitous Churches for whose benefit the bequest is given, depends exclusively upon the will of the committee appointed by the corporation; if the committee should at any time fail to exercise its discretion, or the corporation should fail to appoint a committee for the care and appropriation of the Loan Fund, it would be possible for the corporation to appropriate to other purposes the entire fund; and there are no parties who could maintain a suit to prevent such misappropriation or enforce the execution of the trust, declared in the will. [398]*398In saving this, we do not mean to intimate that such a breach of trust would be likely to occur ; but in determining the validity of the bequest,’ the Court can look only at the legal capacity of the cestuis que trust to compel its execution, and where this does not exist, by reason of the vague and indefinite character of the trust, and of its beneficiaries, the Court has no alternative except to declare it void.
These observations apply alike to the bequest of $1000, given by the codicil to the trustees of the Strawbridge Church, for the benefit of the Mite Society.
This last is admitted to be a voluntary unincorporated institution, and it is .therefore incapable of taking property by bequest, or of enforcing the trust declared by the will for its benefit; for this reason the legacy is clearly void.
The conclusion we have reached, as before expressed, is that three of the pecuniary legacies are void, viz., No. 4, No. 14, and the legacy of $1000 bequeathed by the codicil for the benefit of the “Mite Society,” these amount in the aggregate to $11,500, and the question arises as to the proper disposition of this fund. On the part of the complainant, it is contended that being part of the residuary bequest, it goes to the next of kin, so far as it consists of personalty, and so far as it arises from the proceeds of the sale of realty, it devolves upon the heir.
In this case, as we have before said, the intention of the testatrix, and the effects of the provisions of her will, were to convert the whole estate into money, consequently the fund in the hands of the executor and trustee, must be treated as personalty. In.addition to the cases before cited, we refer to Smithers vs. Hooper, 23 Md., 285. The rule is well settled,'that where a bequest of personal property is void, the property falls into the residue, and passes to the residuary legatee. Deford vs. Deford, 36 Md., 168. It is equally well settled, that “ where a portion of the [399]*399residuary bequest fails to become operative, at the death of the testator, in the manner provided, the portion thus failing, will not go to increase the other portions of the residuu/m, as a residue of a residue.” 2 Redfield on Wills, 119, sec. 8, (3rd Am. Ed.)
The portion of the residuary bequest thus failing, passes to the next of kin, as property not disposed of by the will. Floyd vs. Barker, et al., 1 Paige, 480; Beekman vs. Bonsor, 23 N. Y., 299, 312.
The claim of the complainant to the fund, in cases where the legacies are declared void, is based on the assertion that such legacies constitute a part of the residuary bequests. In our judgment, this is a misconstruction of the will.
By recurring to its terms which have been before stated, we think the clear intent of the testatrix was to give to the legatees therein named, the several pecuniary legacies enumerated in the will; in case the estate be not sufficient to pay them in full, she directs that they shall abate in equal proportions ; and in case there should be a surplus, she. gives the surplus to the same legatees ratahly.
This last provision must be construed as tbe real residuary clause. As it has turned out that there is no such surplus, it is unnecessary to pass upon the rights which the next of kin might assert to the portions of the surplus accruing to the legatees, whose legacies are void. It is very clear, that in the present case, where the fund is not sufficient to pay the valid pecuniary legacies these -cannot be required to abate by reason of the invalidity of certain other pecuniary legacies given by the will.
“ The residuary legatee has no right to call upon particular general legatees to abate. The whole personal estate, not specifically bequeathed, must be exhausted, before those legatees can be obliged to contribute anything out of their bequests.” 2 Wms. Ex’rs, 1463, (Perkins’ 6th Am. Ed.)
[400]*400(Decided 28th June, 1881.)
According to our construction of the will, the several pecuniary bequests are not given as parts of the residue, hut are general legacies, which the testatrix intended should he paid, so far as her property might prove sufficient for that purpose. It cannot he sucessfully claimed that such of them as are valid, shall abate, or he diminished in favor of the next of kin, on account of certain other legacies proving invalid.
The decree of the Circuit Court will he reversed, and the cause remanded for further proceedings.
We shall direct that the costs in this Court, and in the Court below, he paid out of the fund in the hands of the executor.
Reversed and remanded.