Coleman, &c. v. O'Leary's Exr.

70 S.W. 1068, 114 Ky. 388, 1902 Ky. LEXIS 169

Opinion

Opinion of the court by

JUDGE DURELLE

— Reversing.

This appeal is to determine the validity of six clauses of the last will and testament of John D. O’Leary, a respected citizen and resident of Jefferson county. The will was a holograph. Certain of its provisions were held by the county judge to have been canceled and revoked. With the exception of the canceled clauses, it was admitted to probate. Appellant Thomas F. Coleman, suing for himself and for the heirs at law of John D. O’Leary, as a class, filed his bill, praying that the will be adjudged void as a whole; that the devises contained in 'each of th§ six clauses mentioned be declared void; that the estate be adjudged to be undevised estate, which descends to the heirs at law; and for a settlement and distribution of the estate. As alternative relief, the bill prayed, in the event any or all the trusts provided, in the disputed clauses should be held valid, that the trustees be required to carry out the same. An answer was .filed, and a demurrer to the answer was carried back to the petition and sustained. The question before us, therefore, is as to the sufficiency of the petition attacking the validity of the contested clauses. These clauses are as follows:

“Clause 4. I give and bequeath to the Rt. Rev James M. Hayes, S. J., Chicago, 111., the sum of $3,000 for masses for the repose of the souls of my mother and my aunts, Ann and Ellen, and my own.”

“Clause 11. I give and bequeath to the Rt. Rev. Roman Catholic Bishop (for the time being) of Louisville the sum of $3,000, to be invested, and the income of which to be applied in rewards of merits to pupils in the parochial poor schools in Louisville.

“Clause 12. I give and bequeath to the Rt. Rev. Roman Catholic Bishop (for the time being) of Cork, Ireland, the sum of $3,000, to be applied to any charitable uses, and so as to do most good, in his judgment.

“Clause 13. I direct my executor to expend the sum of $1,000 for masses for the repose of my soul and those of my mother and aunts, to be said at the c-atbedral, Louisville.”

“Clause 20. All the remainder of my estate, after the payment of the specified legacies and bequests, I wish to be invested and placed in trust with the Rt. Rev. Bishop of the Catholic Diocese of Louisville, and three others to be chosen by him, for the establishment of a home for poor Catholic men, as soon as the proceeds of my estate may justify it.”

“Clause 22. I give and bequeath to the Order of the Society of Jesus, known as the ‘Jesuit Order/ one hundred acres of land, at or near my place, Doneraile, in Jefferson and Bullitt counties, for the purpose of education or religion; they to have the privilege of selection on any lands on the west side of the Louisville & Nashville Railroad right of way.”

The .questions, therefore, to be determined by this court, involve simply the validity of these clauses. These questions are to be determined, not under the present statute,’ which, as amended, was approved May 12, 1893, and became a law October 10, 1893 (Kentucky Statutes, section 317 et seq.), but, as the testator died on May 14, 1893, must be determined by the statute in force at that time (General Statutes,,,p. 242, which is a re-enactment of 1 Revised Statutes, c. 14, p. 235). Crawford’s Heirs v. Thomas (21 R., 1100) 54 S. W., 197.

We shall first consider the clauses directing expenditures for masses for the repose of the souls of the testator and certain named relatives, being clauses 4 and 13 of the will. These clauses; undoubtedly express, definitely and distinctly, the intention of the testator. Indeed, the very certainty of the beneficiaries under these clauses is made the ground of attack, for there is no suggestion in this court either that they are void because of being indefinite, or as being bequests for superstitious uses; but the ground urged is that, being gifts to named persons for the benefit of the souls of the testator and of designated persons, these devises are not charities at all, but private trusts, and therefore void, as contravening the doctrine of perpetuities. The trustee in the fourth clause, who is also one of the heirs at law of testator, has filed an answer, stating want of knowledge as to whether any of the devises in the will is void for uncer tainty or any other reason, but averring that, if any of The devises shall be held void, he is willing that the amounts received by him be credited on his interest in decedent’s estate. The attack upon these mass cláuses is based especially upon the case of Festorazzi v. St. Joseph’s Church, 104 Ala., 327, 18 South, 394, 53 Am. St. Rep., 48, citing, also, Holland v. Alcock (N. Y.) 16 N. E., 305, 2 Am. St. Rep., 420; In re Schwartz’s will (Sur.), 3 N. Y. Supp., 134; In re McEvoy’s Estate, Id., 207; McHugh v. McCole (Wis.), 12 N. W., 631. In the Festorazzi case, which is reported, also, in 25 L. R. A., 360, a devise -exactly similar to those under consideration was held to be a trust, but not a charitable use, and, being a mere private trust, to be invalid for want of a living beneficiary. The New York cases upon thi-s-s-ubject are in hopeless confusion. The Wisconsin case cited seems, in part at least, to be based on a local statute. We shall not attempt to go into an extended discussion of the authorities upon this question. In England, although the statute of Elizabeth, in its enumeration of charities, has no mention of churches, except in regard to their repair, it has uniformly been held that gifts for the maintenance or promotion of public worship were valid, as charitable uses, unless contrary to- the established religion. Under St. 23 Hen. VIII, c. 10, declaring void all “uses and intents to have obits perpetually, or the continual services of a priest forever,” etc., gifts for the saying of masses and] prayers for the testator’s soul dr the souls of others were, until the repeal of that statute, held to be superstitious uses and void. Perry, Trusts, sections 701, 702. In this country no such doctrine as the English doctrine as to superstitious uses has ever prevailed. As judges, we have nothing to do with creeds or their orthodoxy. In- the courts all denominations stand upon the same footing, and are to be treated alike. As said by Mr. Perry (section 715) : “In this country, where all religious denominations, doctrines and forms of worship are tolerated, or, rather protected, so long as the public peace is not disturbed, there can be, in the law, no such thing as a superstitious use.’’ No such doctrine is invoked on behalf of appellants. The validity of the bequests is to be tested by the same principles that would be applied to a devise in aid of the religious observances of any other denomination. The mass, according to Webster’s International Dictionary, is “The sacrifice in the sacrament of the eucharist, or the consecration and oblation of the host.” It is as we understand it, a public service — a public act oft worship — by which, according to the tenets of the Roman Catholic Church, the priest who celebrates it “helps the living and obtains rest for the dead.” As said by the court in Hoeffer v. Clogan, 171 Ill., 462, 49 N. E., 527, 40 L. R. A., 730, 63 Am. St. Rep., 241: “It is Intended as a repetition of the sacrifice on the cross, and it is the chief and central act of worship in the Roman Catholic Church. It is a public and external form of worship— a ceremonial which constitutes a visible action. It may be said for any special purpose, but, from a liturgical point of view, every mass is practically the same. The Roman Catholic Church believes that Christians who leave this world without having sufficiently expiated their sins are obliged to suffer a temporary penalty in the other, and among the special purposes for which masses may be said is the remission of this penalty. A bequest for such special purpose merely adds a particular remembrance to the mass, and does not, in our opinion, change the character of the religious service, and render it a mere private benefit. And while the testator may have a belief that it will benefit his soul, or the souls of others doing penance for their sins; it is also a benefit to all others who may attend or participate in it. An act of public worship would certainly not be deprived of that character because it was also a special memorial of some person, or because special prayers should be included in the service for particular persons.” A gift in other respects proper for the establishment of a church would not, in our judgment, be avoided by a provision that the church should be called by the name of the testator, or that a tablet or a memorial window should be erected therein bearing his name. Nor do we see any reason why the application of the fund to the designated purpose may not be enforced by the courts upon (the application of the heir. We are of opinion, therefore, that the fourth and thirteenth clauses of the will are not objectionable, and that the judgment of the chancellor as to them was correct. The cases upon this subject may be found collated in an excellent note to the case of Moran v. Moran, as reported in 4 Am. & Eng. Dec. Eq., p. 55 (s. c. [Iowa] 73 N. W., 617, 39 L. R. A., 204, 65 Am. St. Rep., 443).

The next clause for consideration is clause 11, by which a trustee is selected and a trust created, the income whereof is to be applied in rewards of merit to poor pupils in the parochial schools of Louisville. A definite trustee is selected. The class to be benefited is plainly expressed; the intention is unmistakable; the bequest can be readily carried out by the named trustee, under the supervision of the court if necessary; and the object, plainly declared, is, in our judgment, a charitable one, within the meaning of the statute, being in aid of “schools of learning.” A similar bequest providing for prizes for essays upon medical subjects was sustained in Almy v. Jones, 17 R. I., 270, 21 , 12 L. R. A., 414. As to this clause, the judgment of the chancellor is affirmed.

The bequest in the twelfth, clause to the Bishop of Cork, to be applied to any charitable uses, and so as to do the most good, in his judgment, is practically identical in language with the bequest which was held invalid in the case of Spalding v. Industrial School, 107 Ky., 382 (21 R., 1107) 54 S. W., 200.

The point is made by counsel who was appointed attorney to defend for the Society of Jesus and the Bishop of Cork, upon the entry of the warning order, that their case is not before this court, because, although he filed demurrers for eadh 'defendant to the petition, and the chancellor declared these devises good, the judgment of July 11, 1901, neither overrules nor sustains either one of these demurrers, but only carries back to the petition the demurrers of the plaintiff to the answers filed by Bishop Mc-Oloskev and his associates and James M. Bayes. But inasmuch as the judgment dismissed absolutely the petition of the plaintiff, and seems to intend that the petition is dismissed as to all the defendants, we have considered the case as if all the parties named as appellees were before the court, and we are of opinion that the chancellor’s ruling as to this clause was erroneous.

We shall next consider the twenty-second clause, bequeathing to the Order of the Society of Jesus, known as the “Jesuit Order,” 100 acres of land at or near the tes^ tator’s place, “Doneraile,” in Jefferson and Bullitt counties, for the purposes of education or religion, they to have the privilege of selection on any lands on the west side of the Louisville & Nashville Railroad right of way. The Society of Jesus is a religious order founded by Ignatius Loyola. It is understood to be composed of mis Sionary and teaching priests of the Roman Catholic faith. As we understand it, there is no legally incorporated body,, but the priests are. bound only by their vows of poverty, chastity and obedience, and, after a second novitiate, by a fourth vow, requiring them to go wherever the pope may send them for missionary duty. They are governed by a general, and the society has been established in the United States for many years; but this record does not disclose the headquarters of the society, or the names of any of its officers. It would seem, therefore, that there is no trustee created by this bequest who can be made subject to the control of the court, and compelled to execute the provisions of the trust. The lack of a trustee, however,, would he immaterial under our statute, and the trust would not be permitted to fail because an “inadequate, illegal, or inappropriate” mode of execution had been prescribed,, provided the charity were to “an identified or ascertainable object,” which could be judicially determined, and thereby effectuate the declared intention of the donor. Is there such an object in this case? Can the court, unable to bring the Society of Jesus before it, appoint a trustee, and select for his execution a religious or educational object, which will effectuate the intention of the donor, “and not arbitrarily and in the dark, presuming on his motives or wishes, declare an object for him?” We do not think so. Whatever educational or religious purpose the chancellor, or his trustee, or this court, might select, would be open to the objection that it was not the declared intention of the testator, and that it was possibly an object of which he would not have approved. To effectuate a charitable use in this State, it is necessary that the courts should be able to control the trustee, and, if necessary, upon the application of the decedent’s heirs at law, revise his action. 'Should we attempt to do so in this case, we should not be acting judicially. As said by Judge Robertson in Moore’s Heirs v. Moore’s Devisees, 4 Dana, 366, 29 Am. Dec., 417, the court “does not act judicially when it applies his bounty, to a specific object of charity, selected by itself, merely because he had dedicated it to charity generally, or to a specified purpose which can not be effectuated; for the court can not know or decide that he would have been willing that it should be applied to the object to which the judge, in the plenitude of his unregulated discretion and peculiar benevolence, has seen fit to decree its appropriation, whereby he, anid not the donor, in effect and at last, creates the charity.” We are of opinion that the bequest in the Clause under consideration is clearly within the rule laid down in the Spalding case, and is invalid.

We come now to the consideration of the residuary clause, being clause 20: “All the remainder of my estate, after the payment of the specified legacies and bequests, I wish to be invested and placed in trust with the Rt. Rev. Bishop of the Catholic Diocese of Louisville, and three others, to be chosen by him, for the establishment of a home for poor Catholic men, as soon as the proceeds of my estate may justify it.” This clause also is attacked upon the ground that it is too indefinite to be executed, and counsel upon both sides have argued it with great zeal and learning, and not altogether without temper. There is no objection to the trustee selected, and we see no valid objection to the power granted him to select his colleagues. The sole question is whether the object for which this bequest is made is sufficiently definite to be enforced. Upon •this question the argument has taken such a range as to render necessary a consideration of the history of the statute in force at the date of the testator’s death. The stat ute of 43 Elizabeth (chapter 4) came to us by virtue of the ordinance of Virginia of 1776 (9 Hen. St. at Large, p. 127, which is printed in 1 Morehead & B., p. 612), providing: “That the common law of England, all statutes or acts of parliament made in aid of the common-law prior to the fourth year of the reign of King James the First, and which are of a general nature, not local to that kingdom, . . . shall be the rule of decision, and shall be considered as in full force, until the' same shall be altered by the legislative power of this colony.” That ordinance was, by the Constitution of 1792, as re-enacted in the Constitution of 1799 (article 6, section 8), adopted as the law of Kentucky by a provision that:“ All laws which on the first day of June one thousand seven hundred and ninety-two were in force in the State of Virginia, and which are of a general nature, and not local to that State, and repugnant to this Constitution, nor to the laws which have been enacted by the Legislature of this Commonwealth, shall be in force within this State, until they shall be altered or repealed by the General Assembly,” — citing Hunt v. Warnicke’s Heirs, Hardin, 62. It is an interesting fact that in November, 1792, a few months after the adoption by Kentucky of this ordinance, it was repealed by Virginia, which accounts in some measure for the difference between the rulings upon charities in Virginia from those which prevail in Kentucky. The question has been elaborately argued how far the statute of Elizabeth (to be found in 1 Morehead & B. p. 308) was adopted as the law of this State, appellees contending that only the preamble was thereby adopted, because the 10 enacting clauses of the act are necessarily local to England, and were, therefore, never adopted by either Virginia or Kentucky. On behalf of appellants it is contended that, while the mode of procedure prescribed by the statute by the appointment of commissioners under the great seal of England, or the seal of the county Palatine of Lancaster, as the case might require, was local to England, and not adopted by either Virginia or Kentucky, yet a corrective process by the court of chancery itself, without the intervention of commissioners, was obtained in virtue of the statute, and as an outgrowth of it, by the English chancellor, and, to the extent it was judicial, was adopted by the constitutional adoption of the Virginia ordinance, and asserted and exercised by the Kentucky courts. An examination of the authorities convinces us of the correctness of appellant’s contention. It is undoubtedly true that after the adoption of the statute in England the courts asserted and exercised wider powers in the correction of abuses of charitable trusts, and did so directly, and not through the intervention of the commissioners provided by the statute. And so it was natural that when the Kentucky courts came to consider the application of the statute thus adopted to Kentucky charities, they should adopt with it the outgrowth of power derived from the chancellor’s personal exercise of the royal prerogative to the extent that it had been exercised in England, because it had come to be there exercised, in form at least, judicially. And it was natural that the Kentucky courts should at first have regarded all the powers which had grown out of the concurrent exercise and subsequent confusion of the judicial and prerogative power as not local to England, and should have sought to localize them in this State. And so we find Judge Nicholas, in Gass v. Wilhite, 2 Dana, 177, 26 Am. Dec., 446, asserting in the broadest terms, not only that the statute was in force in Kentucky, but .the existence of the English cy pres doctrine to its fullest extent. Said Judge Nicholas: “Notwithstanding the attention of counsel had been invited to the question whether the statute 43d of Elizabeth, of charitable uses, was in force here, it was not contended on the argument that it was not. Our own reflections have not led to any plausible suggestion why it should not be considered as in force. It has never been repealed, nor is there anything in it of so peculiar and local a character as to exclude it from adoption, under the rule embracing all English statutes of a general character prior to 4 James I. It is treated as in force, and has been acted on, in several of the other States. The establishing of the fact that it is still in force relieves us from the necessity of investigating the very vexed question as to the true extent of chancery power and jurisdiction over charitable uses, independent of that statute. It also relieves us from an investigation of the question whether, according to the principles of the common law, there is here a defect or want of cestuis que tmstent, to take the use according to the apparent intent of the covenant of association; or whether the uses themselves are of too indefinite and uncertain a character to be enforced, independent of that statute; for, according to a construction of 200 years, and which has been acted on.in numberless cases under that statute, neither of those circumstances will invalidate the trust, provided it be a charitable US'S. Where the objects of the charity and the mode of its application are pointed out, but not with sufficient distinctness or certainty to be specifically and accurately enforced, the court will, under its cy pres doctrine, give it effect, as near1 the general intent as may be; and even where there is no specific mode or object pointed out, and in some cases where the object fails or ceases to exist, the court will, in respect of the general charitable purpose, devise a mode itself for giving it effect and employing the chari table funds, supply an original want of trustees, or, if necessary, displace old and create new ones.” Almost immediately thereafter, in Moore’s Heirs v. Moore’s Devisees, 4 Dana, 366, 29 Am. Pec., 417, Chief Justice Robertson greatly limited the doctrine laid down in the Gass and Wilhite case, still asserting, however, the cy pres doctrine as a judicial doctrine to a limited extent. In the Curling case, 5 Dana, 38, 33 Am. Dec., 475, it was held that a devise for the “benefit of a public seminary” was “not, as at common law, void. The statute makes is valid according to the British doctrine. And, if it can be judicially executed, it is good according to the Kentucky doctrine also.” And so Judge Robertson held that the testator intended his bounty for the seminary of his county, and that, “even if the Trigg Seminary could not claim the bounty as a matter of clear and exclusive right, nevertheless we are of the opinion that the application of the fund to that seminary would effectuate the declared purpose of the testator more certainly and appropriately than any application that could be made of it to any. other seminary of learning.” The statute is clearly here recognized not as merely giving a definition of charities or a list by which gifts supposed to be charitable might be tested, but as giving to the courts and judiciary of Kentucky certain remedial and corrective powers which would not be possessed by them in the absence of the statute. So, in the much-criticised opinion of Judge Breck, in Attorney General v. Wallace’s Devisees, 7 B. Mon., 612, an exceedingly loose devise was held to give the testator’s “trusty friends,”, his trustees, power, under the statute of Elizabeth, to select as beneficiaries of the will certain established benevolent and charitable institutions then in existence. The validity of the clause and the propriety of the proceeding by the attorney general as well are sustained expressly under the statute of Elizabeth, and the1 power of the court to enforce the trust by a scheme is asserted. In 1852, the statute now under consideration was adopted. It took the preamble of the former statute, with some described changes, added to the list a few charitable objects —notably churches, which, as Mr. Perry says, had been, “by analogy, deemed within its spirit or intendment” — and added also the words, “or for any other charitable or humane purpose,” which can hardly be construed to do more than include the charitable purposes which had already been deemed within the spirit and intendment of the old act, and provided that all grants, etc., for such purposes should be valid, except as thereinafter restricted. It provided, also: “No charity .shall be defeated for the want of a trustee or other person in whom the title may vest; but courts of equity may uphold the same by appointing trustees, if there be none, or by taking control of the fund or property andi directing its management and settling who. is the beneficiary thereof.” Now, if there is a difference between this statute and the former one, which was held by the Kentucky decisions to be in force here, what effect did it have, and what was its purpose? .Was it,intended to, or did it, broaden the scope of the old statute, as is contended by counsel for the Society of Jesus and the Bishop of Cork? We can not think so. That statute, even in Kentucky, and even after the great opinion of Judge Robertson in the Moore case, which undertook to confine the English cv pres doctrine within the limits of strictly judicial powers, had received construction, which could not have suggested to the legislative mind any necessity for broad ening the scope of the act. If there was need- of legislation, it was in the other direction. Such trusts shall be valid, says the statute. How valid? Then the statute proceeds to point out the modes in which they may be validated: First, a trustee may be supplied, if necessary, in whom the title may vest; or the court may take control of the fund or property. The court may direct the management of the property, and may settle who is the beneficiary. Is there anything in this; fairly construed, that indicates an intent to empower the courts to give definition to trusts which the grantors failed to define, to furnish an intent when none is expressed, to direct the management of a fund devoted to an unascertainable object, or to settle who is the beneficiary when the testator left no clew? That statute was intended, not to enlarge, but to define, the powers of the court. As illustrative of this intent, we find incorporated in the third section the mortmain statute of 1815, limiting the amount of landed estate which •may be held by any church or society of Christians.

We do not for a moment suppose this enactment was intended as a hostile attack upon charitable uses, or as looking toward such a crusade against them as took place in the time of Henry VIII; but that it was intended to limit, to define, and to set boundaries to the powers of the courts we have no manner of doubt, from an examination of the statute itself; and this construction was given to it by perhaps the greatest of our judges, in the only opinion of this court in which the effect and object of the Kentucky statute appear to have been considered and adjudged. The same great judge had, in the Mobre case, undertaken to limit the application of the cy pres doctrine by the chancellor. The doctrine then announced had not been rigidly adhered to. In Attorney General v. Wallace’s Devisees, 7 B. Mon., 612, and in the Curling case, 8 Dana, 38, 33 Am. Dec., 475, the results of the opinions by Judge Breek and by Judge Robertson himself are not sup ported by the doctrine announced in the Moore case, though the intent of the testators was declared to exist in such form as to make that doctrine applicable. But in Cromie’s Heirs v. Louisville Orphans’ Home, 3 Bush, 373, the effect of the Kentucky statute was considered. Said the court, through Judge Robertson: “While the statute of Elizabeth concerning charities was constructively abolished in-Kentucky (1 Rev. St. p. 177), it was, in American phase, substantially re-enacted. Id., p. 235. And thus, though the’ ultrajudicial cy pres doctrines which royal prerogative attached as excrescences to the statute of Elizabeth had, by its repeal, been cut off as tumors, the aim of our own statute for upholding charities is to make such as it enumerates available whenever so defined as to be judicially identified and applied.” The ’English statute was re-enacted, but “in American phase.” Charities could still be created according to American doctrine. The outgrowth of the English statute was not to exist here, and the aim of our own statute was compactly and definitely expressed. It was a conservative enactment. It did not put charitable uses upon the same plane as private trusts. They were not void as against the statutes as to perpetuities. They were not to be defeated for want of a trustee. They were not required to be so definite as to be valid as private trusts. But the “American phase” of the statute of charitable uses did require a reasonable cértainty, for it required the charitable objects to be so defined as to be judicially identified. The courts were no longer to exercise the prerogative of changing or making wills; and the judge refers approvingly to the repudiation of the cy pres doctrine in New York, and to the strictly judicial application of charities in that State. He believed, and said so in the opinion, that the object of the repeal of the British, statute “was to substitute a system more congenial with our institutions, and, by a legislative indorsement of the doctrine suggested in Moore’s Heirs v. Moore’s Devisees, supra, to eliminate the cy pres doctrine of England.” We find nothing in the statute to indicate that it was intended as an enabling act, as the statute of Elizabeth was. It does not undertake to enlarge the power of the chancellor in any way. It gives no power to enforce an indefinite gift. It provides that a trust shall not -fail for want of a trustee, but it does not empower the courts to create a cestui que trust. The court will, under the statute, settle who-are the beneficiaries of a trust, if one is created, but it must settle them from the words of the gift; they must be judicially ascertained. It is not doubted that the individual beneficiaries of the bounty need not be named. That would render the gift a mere private use, and subject to the rule against perpetuities. And while the donee of a power may create or cause to spring a private use, limited in duration by the law against perpetuities, such is not the law as to charitable uses, which are perpetuities. The donor must select his charity. He may delegate power to select the individual recipients of his bounty, but a gift to charity in general is too vague to be enforced. Spalding v. Industrial School (107 Ky., 382) (21 R., 1107) 54 S. W., 200. A charitable use which is relieved from the operation of that rule must be so definitely' expressed that the courts- can judicially, and with reasonable certainty, apply the gift to that object.

We may notice here the very interesting- argument of appellants’ counsel as to the difference between the statute of Elizabeth and the Kentucky statute. In the older statute, these words are used, “for relief of aged, impotent and poor people,” while our statute reads, “for the relief or benefit of aged, or impotent and poor people;” from which it is argued that, while the older statute might have permitted a charity for the poor, though not helpless, or for the aged, though not poor, our statute does not permit a charitable use for the benefit of the rich, though old or impotent, or for the poor, unless they were old or impotent. But we think the disiinction sought to be made lies only in the language used, and does not exist in the meaning of the two statutes. In the old .statute, as in the new, the poor and the aged for whose relief charitable uses •were permitted were the poor and the aged who needed charity, and under neither statute would a charity for sturdy beggars or elderly millionaires be properly sustained. And so we think it is with such language when used in a gift to be applied under either statute. The “poor” will be construed to mean, not the poor who are abundantly able to provide for themselves; but the poor who need assistance; and “aged” to mean such aged people as are properly objects of charity.

Nor do we think that the devise in' question is objectionable as a sectarian charity, or as a devise to provide for .hospitality rather than charity. This court has never recognized it as an objection to a charitable use that its bounty was confined to members of one race of one religion. Nor, on the other hand, do we think that the word “poor,” as used in this devise, can be properly construed as indicating a merely hospitable purpose. The purpose of this devise was, in our judgment, charitable. The sole question is whether it was definite enough to be enforced.

Tested by this statute, is the bequest too vague and indefinite to be sustained? It is suggested for appellee that, in order that the court may be able to exercise the powers given by section 2 of the act (1 Revised Statutes, p. 236), directing the management of the trust and settling who shall be the beneficiaries thereof, the will must be construed as requiring the establishment of the home in Louisville, because the trustee is the Bishop of the Diocese of Louisville, the trust is reposed in him in his official capacity, and he has no power beyond his diocese. On the same principle it would seem to follow that the beneficiaries must be selected from that diocese, which, as we understand, includes the State of Kentucky. If the devise can be sustained, it must be upon such a construction, and that is the interpretation we must give it in order to make it sustainable.

On the other hand, these objections are urged to the validity of the devise: First, that it does not name a charitable object under our statute, which requires that the poor who may be beneficiaries of a charitable use must also be aged or impotent — an objection already considered; second, because no power is given to any one to select the object of the charity; third, because no place or district or country is named in which the home is to be established, and no place or district or class is reasonably defined from which the beneficiaries are to be selected; and, fourth, because no one is given power to make such selections. Assuming the object of the devise to be sufficiently definite, we have little difficuly with the second objection. A trustee is named, the appointment of three associates is provided for, and the fund is devoted “for the establishment of a home for poor Catholic men as soon as the proceeds of my estate may justify it.” And, if the will furnishes a guide to the purpose of the testator, the trustee and his associates have authority to act in the selection of a site for the home, and in its establishment and management under the control and direction of the chancellor. But it is objected that there is nothing in the will which, places any limitation of time or place or circumstances upon the establishment of the home, or any limitation of district or boundary or class which will enable as to judicially ascertain or identify the objects! of the testator’s bounty. With considerable hesitation, and after much consideration, the court has reached the conclusion that a construction can fairly be given to this clause of the will sufficiently definite to enable the trustee to carry out, and the court to control and enforce, the testator’s charitable purpose. The trustee selected to receive the trust fund is not selected as a person, but as an official of the church. He is the Right Reverend Bishop of the Catholic Diocese of Louisville. As such he has under his immediate dominion not only such matters as are strictly ecclesiastic, but to a great extent the charities of the church. Whether he still exercises the powers of a corporation sole this record does not disclose, but he undoubtedly exercises supervision over the recognized charities of the Roman Catholic Church in his diocese. And while there is a recognized distinction between a gift to create a charitable institution, without naming its scope or location or designating, territorially or otherwise, the class from which the beneficiaries are to be selected, such as appellants claim the gift in question is, and a gift for the purpose recognized as charitable under the statute to an established and organized institution having defined and stated aims and purposes, which by virtue of the selection of that institution can be written in the terms of the gift, it may be that there is a just analogy between gifts of the latter class and a gift for a recognized charitable purpose to a church official in his official capacity, having jurisdiction as such over the charitable institutions of like char- ac-ter within a defined territory, and managed under regulations and upon conditions wliicli may be considered as adopted by the donor by the selection of such official, and thereby written into the terms of his gift. It may not be too great a stretch of the court’s powers of interpretation to presume that the donor made the gift upon terms in harmony with the purposes of kindred organizations in that ecclesiastical jurisdiction, and for the benefit of such similar objects of charity as are provided for in that district. Giving this construction to the clause in question, — that the home was intended to be established in Louisville, and that the beneficiaries were to be selected from Catholic poor men in that diocese — it follows that the trust is such as the chancellor can control and enforce, and, if necessary, settle who are the beneficiaries thereof. It follows, therefore, that the judgment of the chancellor as to this clause was not erroneous.

The paragraphs of the answer which plead knowledge on the part of the appellants of the administration under the will are good to the extent that, in so far) as! the appellants have knowingly permitted the executors and trustees under the void clauses to proceed with the execution of the will as if valid, and to expend the fund for the benefit of the supposed objects of charity, no recovery can be had, nor, if investments have been made in execution of the supposed purposes of the void clauses, can recovery be had for the loss, if any, occasioned by such reinvestment.

In the particulars indicated in the opinion, the action of the chancellor in carrying back and sustaining the demurrer to the petition was erroneous. The demurrer should have .been .sustained in part, as indicated herein.

- If appellants can show a refusal to recognize their visitorial right, or if any abuse of the trust or misapplication of the fund can be shown, the court can enforce such right. In this respect the petition seems to be defective, and on the return of the cases leave may be given to amend.

For the reasons, given and to the extent indicated, the judgment is reversed, and cause remanded with directions to set aside the judgment dismissing the petition, and for further proceedings consistent herewith.

Whole court sitting.

Judge Paynter dissents from so much of the opinion as holds the bequest to the Jesuit order void.

Petition fot rehearing by appellee overruled.