Whitehouse, J.
On the fourteenth day of October, 1886, the town of Eastport in this State was the scene of a destructive conflagration which caused temporary destitution and distress among the inhabitants. News of the disaster awakened a widespread feeling of sympathy and a spirit of active benevolence which resulted in generous contributions of money and various articles of supplies from nearly all parts of New England and many points beyond, "for the relief of the sufferers by the fire.” The 'total amount of the money thus contributed exceeded thirty-eight thousand dollars. A relief committee of twenty was promptly organized at Eastport with appropriate officers and sub-committees for the purpose of making these voluntary offerings of the people at once available in relieving suffering and distress. During the fall and winter following the fire, the committee received applications and systematically dispensed the supplies and disbursed the funds thus received to those who appeared to be in need of immediate relief in consequence of the fire. A relief building was also erected at an expense of about five thousand dollars, taken from the relief fund, for the accommodation of those who were left homeless and shelterless by the fire.
But on the third day of March, 1887, the following resolution was adopted by the full committee : "Besolved, that the reduced condition of the relief fund together with the distressed condition of over fifty families comprising more than two hundred persons for which the committee is obliged to provide food, fuel and clothing for an indefinite period, forbid the appropriation of large sums of money aid in the future.” It appears, however, that at this time only three thousand dollars in money had been disbursed and that there xvas then in the hands of the finance committee an unexpended balance amounting to thirty-five thousand dollars, of which the sum of twenty thousand dollars was soon after invested in the four per cent bonds of the town of Eastport; and on the thirty-first day of March it was voted by the committee that the twenty thousand dollars, so invested "be made a permanent fund, the interest of which to be used in [423]*423aiding towards the support of the town poor.” On the twenty-first day of April, 1889, it was voted that the finance committee of the relief committee (the individual defendants in this proceeding) in connection with the treasurer of the relief committee, be authorized to act as trustees and to hold all bonds, property, money,” &c. ; and thereupon the committee "adjourned sine d,ie.”
It is not in controversy that since that date, the treasurer of the relief committee has been the custodian of the bonds in which this fund of twenty thousand dollars was invested ; that the income thereof has been regularly collected by him and turned over to the town treasurer, and that it has then been disbursed and distributed through the agency of the successive overseers of the poor for the purpose of relieving actual destitution and distress in the town without special reference to the inquiry whether the necessity for such relief was occasioned by the fire or otherwise. The "relief building” since that date has been used to furnish apartments and tenements free from rent to the worthy poor, some of whom met with losses by the fire ; and a portion of the building has been used as a school-house for a public school.
The plaintiffs represent that they suffered great loss by the fire, and complain on their own behalf, and in behalf of all others of like interest with themselves, that they are aggrieved by the refusal of the committee to distribute this generous fund among the sufferers by the fire in accordance with the intention of the donoi's. They contend that it should have been used to repair the losses as well as to relieve the destitution and distress of the sufferers by the fire; and that the appropriation of it as a supplement to the pauper fund of the town is wholly unauthorized for the reason that it aids the rich as well as the poor without distinguishing the sufferers by the fire, by relieving all alike of a part of the burden of taxation, and thus diverts these charitable donations from the purposes and uses for which they were designed.
The defendants say that these benevolent contributions came properly and rightfully into custody of the relief committee with an express or implied request that they should be distributed [424]*424in the sound discretion of the committee for the relief of actual suffering and distress caused by the fire ; that they labored faithfully and gratuitously to discharge the responsibility imposed upon them and distributed the supplies and disbursed the funds according to their best judgment for the real purpose for which they were donated, and that,"in so far as they were not required and could not be used specifically for the primary purpose for which they were intended, they have been used and are being-used by the inhabitants of Eastport for purposes which approximate as closely, and are as nearly akin, to the purpose for which they were designed as it is reasonable or practicable to do.” They further say that it was never the intention of the committee that the income of the twenty thousand dollars should be used as a part of the pauper funds of Eastport, or as a substitute therefor, or that the receipt of any part of it should affect the persons in whose favor it was applied with pauper disabilities. They accordingly contend that the mere fact that the plaintiffs’ applications for more of the funds than they have received have not been approved by the committee, does not give them the right to appeal from this domestic tribunal and call on the court to administer the fund.
The situation presents some novel inquiries which are not entirely free from difficulty. These prompt and liberal donations were acts of benevolence primarily designed undoubtedly for the immediate relief of the needy and distressed among the sufferers by the fire. The existence of a large surplus, after suitable relief had been afforded in all cases of actual distress, was probably a contingency not anticipated by the charitable donors. But in all the letters and telegrams received from them, it is either directly expressed or clearly implied that all contributions of money and supplies were to be applied "for the benefit of the sufferers by that fire.” There is nowhere any intention of a purpose to bestow these gifts upon all the worthy poor of Eastport; and it may fairly be assumed that it was never in their contemplation to create a permanent fund for such public charitable use in that town. The result of these gratuities was to create a private charity for .the benefit of a [425]*425designated class of persons who were already well-known or who wore capable of being readily ascertained. "A good charitable use is 'public’ not in the sense that it must be executed openly and in public, but in the sense of being so general and indefinite in its objects as to be deemed of common and public benefit. . . . It is public in its general scope and purpose, and becomes definite and private only after the individual objects have been selected.” Saltonstall v. Sanders, 11 Allen, 456. The essential elements of a public charity are that it is not confined to privileged individuals but is open to the indefinite public. It is this indefinite, unrestricted quality that gives it its public character. Donohugh’s Appeal, 80 Pa. 306; Bangor v. Masonic Lodge, 73 Maine, 428. "Private trusts,” says Mr. Pomeroy, "are . . . for the benefit of certain and designated individuals in which the cestui que trust
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Whitehouse, J.
On the fourteenth day of October, 1886, the town of Eastport in this State was the scene of a destructive conflagration which caused temporary destitution and distress among the inhabitants. News of the disaster awakened a widespread feeling of sympathy and a spirit of active benevolence which resulted in generous contributions of money and various articles of supplies from nearly all parts of New England and many points beyond, "for the relief of the sufferers by the fire.” The 'total amount of the money thus contributed exceeded thirty-eight thousand dollars. A relief committee of twenty was promptly organized at Eastport with appropriate officers and sub-committees for the purpose of making these voluntary offerings of the people at once available in relieving suffering and distress. During the fall and winter following the fire, the committee received applications and systematically dispensed the supplies and disbursed the funds thus received to those who appeared to be in need of immediate relief in consequence of the fire. A relief building was also erected at an expense of about five thousand dollars, taken from the relief fund, for the accommodation of those who were left homeless and shelterless by the fire.
But on the third day of March, 1887, the following resolution was adopted by the full committee : "Besolved, that the reduced condition of the relief fund together with the distressed condition of over fifty families comprising more than two hundred persons for which the committee is obliged to provide food, fuel and clothing for an indefinite period, forbid the appropriation of large sums of money aid in the future.” It appears, however, that at this time only three thousand dollars in money had been disbursed and that there xvas then in the hands of the finance committee an unexpended balance amounting to thirty-five thousand dollars, of which the sum of twenty thousand dollars was soon after invested in the four per cent bonds of the town of Eastport; and on the thirty-first day of March it was voted by the committee that the twenty thousand dollars, so invested "be made a permanent fund, the interest of which to be used in [423]*423aiding towards the support of the town poor.” On the twenty-first day of April, 1889, it was voted that the finance committee of the relief committee (the individual defendants in this proceeding) in connection with the treasurer of the relief committee, be authorized to act as trustees and to hold all bonds, property, money,” &c. ; and thereupon the committee "adjourned sine d,ie.”
It is not in controversy that since that date, the treasurer of the relief committee has been the custodian of the bonds in which this fund of twenty thousand dollars was invested ; that the income thereof has been regularly collected by him and turned over to the town treasurer, and that it has then been disbursed and distributed through the agency of the successive overseers of the poor for the purpose of relieving actual destitution and distress in the town without special reference to the inquiry whether the necessity for such relief was occasioned by the fire or otherwise. The "relief building” since that date has been used to furnish apartments and tenements free from rent to the worthy poor, some of whom met with losses by the fire ; and a portion of the building has been used as a school-house for a public school.
The plaintiffs represent that they suffered great loss by the fire, and complain on their own behalf, and in behalf of all others of like interest with themselves, that they are aggrieved by the refusal of the committee to distribute this generous fund among the sufferers by the fire in accordance with the intention of the donoi's. They contend that it should have been used to repair the losses as well as to relieve the destitution and distress of the sufferers by the fire; and that the appropriation of it as a supplement to the pauper fund of the town is wholly unauthorized for the reason that it aids the rich as well as the poor without distinguishing the sufferers by the fire, by relieving all alike of a part of the burden of taxation, and thus diverts these charitable donations from the purposes and uses for which they were designed.
The defendants say that these benevolent contributions came properly and rightfully into custody of the relief committee with an express or implied request that they should be distributed [424]*424in the sound discretion of the committee for the relief of actual suffering and distress caused by the fire ; that they labored faithfully and gratuitously to discharge the responsibility imposed upon them and distributed the supplies and disbursed the funds according to their best judgment for the real purpose for which they were donated, and that,"in so far as they were not required and could not be used specifically for the primary purpose for which they were intended, they have been used and are being-used by the inhabitants of Eastport for purposes which approximate as closely, and are as nearly akin, to the purpose for which they were designed as it is reasonable or practicable to do.” They further say that it was never the intention of the committee that the income of the twenty thousand dollars should be used as a part of the pauper funds of Eastport, or as a substitute therefor, or that the receipt of any part of it should affect the persons in whose favor it was applied with pauper disabilities. They accordingly contend that the mere fact that the plaintiffs’ applications for more of the funds than they have received have not been approved by the committee, does not give them the right to appeal from this domestic tribunal and call on the court to administer the fund.
The situation presents some novel inquiries which are not entirely free from difficulty. These prompt and liberal donations were acts of benevolence primarily designed undoubtedly for the immediate relief of the needy and distressed among the sufferers by the fire. The existence of a large surplus, after suitable relief had been afforded in all cases of actual distress, was probably a contingency not anticipated by the charitable donors. But in all the letters and telegrams received from them, it is either directly expressed or clearly implied that all contributions of money and supplies were to be applied "for the benefit of the sufferers by that fire.” There is nowhere any intention of a purpose to bestow these gifts upon all the worthy poor of Eastport; and it may fairly be assumed that it was never in their contemplation to create a permanent fund for such public charitable use in that town. The result of these gratuities was to create a private charity for .the benefit of a [425]*425designated class of persons who were already well-known or who wore capable of being readily ascertained. "A good charitable use is 'public’ not in the sense that it must be executed openly and in public, but in the sense of being so general and indefinite in its objects as to be deemed of common and public benefit. . . . It is public in its general scope and purpose, and becomes definite and private only after the individual objects have been selected.” Saltonstall v. Sanders, 11 Allen, 456. The essential elements of a public charity are that it is not confined to privileged individuals but is open to the indefinite public. It is this indefinite, unrestricted quality that gives it its public character. Donohugh’s Appeal, 80 Pa. 306; Bangor v. Masonic Lodge, 73 Maine, 428. "Private trusts,” says Mr. Pomeroy, "are . . . for the benefit of certain and designated individuals in which the cestui que trust is a known person or class of persons. Public, or, as they arc frequently termed, charitable trusts, are those created for the benefit of an unascertained, uncertain and sometimes fluctuating body of individuals, in which the cestuis que trustenl, may be a portion or class of a public community, as for example, the poor or the children of a particular town or parish.” 2 Pom. Eq. § 987. "In private trusts,” says Mr. Perry, "the beneficial interest is vested absolutely in some individual or individuals who are, or within a certain time may be, definitely ascertained; and to whom, therefore, collectively, unless under some disability, it is, or within the allowed limit, will bo competent to control, modify, or end the trust. Private trusts of this kind cannot be extended beyond the legal limitations of a perpetuity. . . . But a trust created for charitable or public purposes, is not subject to similar limitations, but it may continue for a permanent or indefinite time.” 1 Perry on Trusts, § 384. In Att’y Gen’l v. Price, 17 Ves. 371, Lord Hardwieke draws this distinction between the creation of permanent trusts and the exercise of present benevolence, observing of the former: "It is to have perpetual continuance in favor of a particular description of poor, and is not like an immediate bequest of a sum to be distributed among poor relations.”
[426]*426The defendants, then, with other members of the committee, of twenty, became trustees for the execution of a private trust for the benefit of the sufferers by the fire. The administration of the trust was in the-first- instance committed to their discretion ; and having reference to the primary purpose of the contributions, after all cases of actual distress and need had according to their best judgment been amply relieved by them, the 'committee would doubtless have been justified, if such a course had been practicable, in restoring to the donors the unexpended balance. This would have been the obvious equity of the situation, but its observance was not possible ; since by far the larger part of the contribution in money was received through the agency of municipal officers, from very small donations made by numerous persons whose names are now as unknown as the contributor of the " widow’s mite.”
In the administration of trusts under the general equity .jurisdiction of the court, it is an old and familiar principle that if the original purpose of a public charity fail and there are no objects to which, under the specific terms of the trust the funds can be applied, the court may determine whether, in the event that has happened it was not the probable intention of the donor that his gift should be applied to some kindred charity as nearly like the original purpose as possible. This is commonly known as the doctrine, of cypres, which, in its last analysis is found to be a simple rule of judicial construction designed to aid the court to ascertain and carry out, as nearly as may be, the true intention of the donor. Jackson v. Phillips, 14 Allen, 539 ; 2 Perry on Tr. §§ 717-729, and cases cited. But if it appears that the gift was for a particular purpose only, and that there was no general charitable intention, the court cannot by construction apply the gift cy pres the original purpose. " There is a class of cases,” says Mr. Perry, "where the gift is distinctly limited to particular persons or establishments, and upon a change of circumstances the doctrine of cypres does not apply.” 2 Perry Tr. § 725, note and § 726, and cases cited. It is not applicable to private trusts to the extent of authorizing the court to convert the fuuds donated for a private and particular purpose into a permanent [427]*427fund for a public charitable use of a different character. Coe v. Washington Mills 149 Mass. 543; 2 Pom. Eq. § 1027.
In the case at bar, there is no evidence of mala fides on the part of the defendants, or any member of the relief committee, in their management of the funds intrusted to their charge. As suggested by the learned counsel for the defendants, the apparently unwarranted resolution of March third above quoted, was doubtless designed to discourage the more persistent and less meritorious applications. But a careful examination of the evidence reported leads to the conclusion that the committee managed the fund under the influence of a too rigid construction of its primary purpose, and not in the spirit of helpful beneficence and liberality contemplated by the charitable donors.
It is clear, then, that the donors did not expect or intend that any part of their contribution should be returned to them, or if so, that it is not practicable to effectuate such intention. It is equally clear that they had no purpose to create a permanent fund for a public and general charity in Eastport. Their bounty was distinctly limited to a specified class of persons then in being. As stated in some of the letters, it was "for the benefit of the sufferers by the fire.” . These sufferers or- their legal representatives, may still be found; and if the privilege is granted, it may safely be assumed that they will promptly apply for their respective shares of the fund under any new scheme devised for its distribution. The trust has not failed. The application of a rule of construction analogous to the doctrine of cy pres discovers a probable intention on the part of the donors that when the primary purpose of their contribution should be accomplished, the surplus, if any, should be used to repair the losses as well as to relieve the immediate distress of the sufferers by the fire. As the value of the property destroyed is estimated to reach an aggregate of seven hundred and fifty thousand dollars, and four hundred thousand dollars above all insurance, it would seem that the entire relief fund might have been distributed among the sufferers under a scheme not greatly at variance with the probable intention and wishes of the donors.
[428]*428It may be true, as claimed, that there has been no definite purpose to employ this fund as a substitute for municipal taxation in the support of the town poor, but such a perversion of the charity will be the inevitable result, if the course adopted after the fund was capitalized shall be pursued in the future. Such a course is contrary to sound public policy, as tending to discourage the prompt exercise of similar acts of humanity and Christian benevolence in like exigencies in the future.
The situation, therefore, requires the courtto assume jurisdiction of the matter and to appoint special masters in chancery, who after due notice of the times and places appointed therefor, shall receive applications from all the sufferers by the fire, hear evidence in regard to the nature and extent of their x-espective sufferings and losses, and thereupon devise a scheixie for the distribixtion, anxoxxg such sufferers, of the exxtire relief fund now available axxd which may be available for that purpose at the time of final decree. Ixx determining the proportional part of the fund which each should receive, the masters may be justified in considering xxot only the actual distress and amount of loss suffered by each, but the difference in the degree of suffering-entailed upoxx the rich axxd upon the poor, by the same amount of loss, and such other cognate nxattex-s as ixx their good judgment axxd discretion will aid ixx reaching conclusions most in harmony with the probable wishes and pux-poses of the donors under these cix’cunxstances ; such coxxclusions to be reported to the court for acceptaxxce and approval. The fund for distribution will coixsist of the four per ceixt boxxds of the town of Eastport in which the sum of twenty thousand dollars was invested, with all income thereof not expended by the defendants prior to the service of this bill, and all interest which has accrued therein since the sex-vice of this bill; and also of the proceeds from the sale of the relief building. Such sale is to be effected by the defendants in coixjunetion with E. E. Shead, treasurer of the committee (who is to be made a party to this bill) under the directioix of a single justice. The proceeds thereof, and also the bonds and income above named, will be held by the defendants and E. E. Shead, treasux-er, until further ox’der of the coux’t.
[429]*429Lemuel G. Downes of Calais,Benj.B. Murray of Pembroke, and Beuel Small of Deering, are to bo appointed masters.
Bill sustained. Decree in accordance with opinion.
Haskell, J.
I consider the donation an express, public, charitable trust. Express, because applied to a specific object. Public and charitable, because given for the relief of suffering visited upon an undetermined portion of a community, the result of conflagration. It was the generous out-pouring of money to relieve suffering humanity from misfortune that had befallen a city and made hundreds of its inhabitants, houseless, homeless, idle and sick in late autumn with the frosts of a northern winter hard by.
To these purposes it should have been promptly applied, not with stingy hand, but with such broad and generous spirit as moved the donation. It was not indemnity, but relief. Belief for suffering, whether occasioned by loss of property, or of health, or of employment that earned bread, albeit a result from the conflagration that worked a distress to incite the donation.
The proofs show that suffering entailed by the calamity still remains. The donors iutended that it should long ago have been relieved. That intent must now be put in execution. I concur, therefore, in sending the cause to masters for an account of individuals still suffering from the effects of the fire, and to devise such equitable methods of distribution as seem best suited to carry out the purposes of the donation.