Raymond, President :
• In December, 1871, the plaintiffs by their next friend, Robert B. "Woods, brought a suit in chancery against Daniel C. List and James P. Rogers, executors and trustees, under the will of Martha Knox, deceased, and the Mount Wood Cemetery Company. The bill was filed in January, 1-872, at rules. ’ In the bill nothing is said [130]*130or mentioned about “The Mount Wood Cemetery Com-but the plaintiffs aver that the “Mount Wood Association,” a corporation 'existing under the laws of West Virginia, and having its domicile in Ohio county, claims to have some rights or interests under or by virtue of the sixth clause of the will of said Martha Knox, deceased, in the estate real and personal therein devised, -or in the rents, interest or proceeds thereof; but said association is not made a defendant to the bill. Subsequent to the filing of the original bill-, plaintiffs filed an amended bill, by which the said Mount Wood Cemetery .Association is made a party defendant to the suit.
In the original and amended bill, it is alleged, by-the plaintiffs, that in September, 1871, Mrs. Martha Knox, a widow, and at that time, and for many years previously, residing in the city of Wheeling, county of Ohio and State of West Virginia, departed this lite, leaving the plaintiffs who are her grand children, her only heirs at law; that plaintiffs a're the only children of Franklifi W. Knox, who was the only child of skid Martha Knox and that their said father died in the lifetime of his mother; that said Martha Knox being possessed of a considerable estate, real and personal, made her last will and testament, bearing date on the fifteenth day of April? 1870, which was admitted to record in the Recorder’s office of Ohio county, West Virginia, oil the fourteenth day of October, 1871. Plaintiffs aver that after sundry bequests and provisions contained in the preceding clauses, the following bequest and devise is made in the sixth clause of said will, to wit:
“All the rest and residue of my estate, real and personal, including the homestead, in which I have so long lived, and all my real estate in Wheeling, or elsewhere, I give and bequeath to my said trustees, Daniel C. List and James P. Rogers, in fee and in trust for the use hereinafter mentioned, and direct that the same be sold for cash or on credit, as my said trustees may judge best, and they are required to invest the remainder, after the [131]*131paying of aTl tbe expenses of administration, and of the estate, in some permanent manner so that the same will 'draw interest, rents or dividends — the 'be'sfc that can be done in the judgment o'f my Said trustees, and that the said investment is o remain perpetually, and the rents, profits or dividends to be appropiiáted solely for the r'e-■pairing and keeping in good order Mount Woo'd •Cemetery, near the city of Wheeling'; and if there be anything of the said income left after the keeping of said Cemetery in good repair, the remainder may be expended in beautifying the same. I enjoin specially on my said trustees that my will may be observed in this matter, so that the •fund will not be lost, as is too often the case in donations of this kind.” The plaintiffs allege and insist that the said sixth clause in said will is void, and that they, as the only heirs and distributees of the said Martha Knox, deceased, are entitled to the estate, real ánd personal, and the -rents, interest or proceeds thereof, in said clause devised and bequeathed. Plaintiffs also allege that the executors arid trustees of the said Martha Knox aforesaid, assuming the validity of said sixth clause óf said• will,- ha've sold all the real estate therein devised, as plaintiffs are informed, for the sum of $l9,(iC0; that the sale was made on the fifteenth day of December, -Í87Í, •and the purchase money bearing interest from that date; that they (plaintiffs) do not object to said sale being affirmed and perfected, but without prejudice to any interests, devises or demands of the plaintiffs under the said sixth clause either -to the real estate or to the proceeds thereof. The plaintiffs pray in their bill that they be declared entitled, as heirs at law and distributees of the said Martha Knox, to all the estate, real and personal, expressed to be devised and bequeathed in said sixth clause of said will, and that the said defendants, the executors and trustees, under the -said will, be ordered and decreed to convey, transfer and pay over all said estate •real and personal, or the - proceeds thereof, to the plaintiffs. • The -bill also prays for general relief. (The ’plain[132]*132tiffs filed-with their ■ Rill, an- official copy of the will-of said Martha Knox.)
The defendants List and.Rogers, executors and trustees,; &c., as-aforesaid, appeared to the cause in court, and byTeav.eof-the court, filed their demurrer.-and answer to the original, and- - amendacji -bills, to which answer the plaintiffs replied generally and -joined in the - demurrer.
The: Mount Wo'od Cemetery Association demurred to and answered said-.bills on the first day of April,.1872, and the- plaintiffs set the- demurrer down for argument and replied generally to the answer ; but- it appears, by the record, - that.-on the second day oí April, 1872, the .said'Association; by .consent of parties, withdrew its demurrer, to-said .bills.
List .and Rogers in their-.answer .say, substantially, that, the said sixth clause of .the will is not void, hut is effective and is according to law; that the testatrix had fall power to-.dispose.of.apportion of her property-.in that manner, which .was-not’ only, legal but meritorious; that she was a yery old. woman and had lived all -her life in and-near the, city of •'Wheeling, and was the daughter of the late Colonel Archibald Woods;-for-whom. Mount Wood. Cemetery was named: “.That the said father was one of the,first-settlers in this neighborhood, and was a man of notg in the country, and sh.e. was desirous of perpetuating his name, by preserving the said Cemetery and beautifying,the same for. such purpose, which .the respondents ¡submit- she, had the right.to do, and it was a public benefaction ,so to,, do ; and respondents. adopted 'the answer .of,said Association so far as the facts are therein stated.-
The Association, in .its answer, admits that the copy of the said, will exhibited with the.original bill is correct, and that the .sixth clause thereof is. correctly stated in said bill,..and that it claims to have-some rights and interests under .and by., virtue of. said- sixth clause of said will ;• and that the. plaintiffs are the only heirs-of the testatrix. .But it.denies that said sixth-clause is void, or [133]*133that complainants have any interest in any of the property, or its proceeds disposed of in the 'said elause. It admits the sale of the-property by the executors trustees as charged, and insists-that -it. was- their-duty to make -the sale. • The said Association also admits that' it was organized under the .law as stated'in .the amended bill, and that the. copy of its certificate of incorporation filed with said amended bill, is correct, but denies- the charge that no part of said “Cemetery belongs/ or at the death of” the testatrix, did- belong to said' Association. It also denies .the charge that no part of said Cemetery belonged to the testatrix, at her. death or at anytime during .her life. The Association-further : alleges- and avers, that the facts in regard to-the Mount'-Wood Cerne-, tery are, that the location- of said Cemetery 'was -well known to the testatrix, and of public notoriety throughout the oity of Wheeling and county of Ohio.-; that-there is but one grave yard or cemetery of that name within said county; that said Cemetery -is situated on an eminence in the north part of said city, and is,, and for several years before the execution of said will,-was - enclosed, laid out into burial-lots, walks and carriage ways, with numerous graves, vaults, 'tombstones, and monuments, and beautifully adorned; -the enclosure containing some fourteen or-fifteen acres, and -exclusively in the possession and control of respondent/used and occupied exclusively for burial purposes, and accessible to .the .public, and aplace of common public resort for. the many .friends of the numerous persons therein buried, -and of the citizens-of the city of■ Wheeling and vicinity,, and'visitors generally; .that said “Mount Wood Cemetery” was originally, laid out as a burial place.in the year ,1848 by. the “Mount Wood Cemetery'.Company,” .a corporation, organized unde.r.the act-of the-Virginia Legislature, entitled “An Act-to Incorporate the Mount Wood Cemetery Company, in the city of-Wheeling,” passed March' -20, 1848.' The land then-belonged to two of, the-corpora-tors, Benjamin B. McMechen-.and Joseph M.-Bushfield-; [134]*134that a plat of- said cemetery-as first laid-out, was .certified-' by the President and Secretary of-sa-id “Mount Wood-Cemetery -Company,” and. admitted' to record in the proper,office in Ohio county, on -June -2, 1848, the legal title to the lots and grounds still remaining in the said McMechen and -Bushfield, subject to the rights- of said Mount Wood Cemetery 'Company, by virtue of 'its charter which was accepted- by said McMechen and Bushfield • that sometime previous to December, 1849, the said-Benjamin-B. McMechen died, and: his right,- title and interest in, and to.- said Cemetery -and ground:, passed, by descent, to Benjamin MeMechen, his -heir at- law; that' on the sixth of Deceniber, 18.49; the'said Joseph M. Bush-field conveyed all his right, title, and interest-therein to the said Benjamin McMechen by-deed duly admitted to record- in the proper office- of said county- of Ohio on the-day of its date; that the property-therein conveyed is described as follows: “All my right, title and interest in a certain tract of land heretofore bought by Benjamin B. McMechen, deceased, from Hamilton Woods, under-which is laid out the'Mount W.ood Cemetery, and also all my interest, right and- title that I .can or may have in • and to the 'said Mount Wood Cemetery, vested in me by virtue of the act of Assembly, incorporating said Mount Wood Cemetery, &c.;” that ou the eighth of' September, 1853, tbe said Benjamin- McMechen conveyed to. John R. Morrow, by general warranty deed-, all bis right and title in and- to said premises, by the- following description: “All that parcel of' land, chiefly within the city of Wheeling, which was 'conveyed to Benjamin B. McMechen (now deceased) by Hamilton Wood by deed dated twentieth September, 1847, and recorded" in the clerk’s office of Ohio county, "Virginia, containing fourteen acres more or less, including all the right, title, interest and estate of'said party of the first part .(Benj. McMechen)' e-i'ther.as heir of said Benjamin B. McMechr en, deceased,''or as grantee, of- Joseph M. Bushfield, or otherwise, in and to said parcel .of land-, and including' [135]*135the cemetery or burial lots laid; out as the same, and all rights appurtenant to the same, but excepting from this conveyance, all such burial lots and privileges, and other parts of said land, as have been heretofore conveyed to other persons by the said Benjamin McMechen and-Joseph M. Bushfield, or the said party of the first part, the said parcel of land, being the same on which ‘Mount Wood Cemetery has been laid out;”3 that this deed was also duly admitted to record in the proper office in Ohio county; that on the fifth of February, 1858, the said John B,-. Morrow laid out additional lots to said cemetery, a plat of which was that day acknowledged by him and admitted to record, and is recorded in the recorder’s office of said county, as “Mount Wood Cemetery, addition No. 1 ;33 that shortly after the passage of the act of 1848, the said Mount Wood Cemetery Company, was organized thereunder, and the organization was kept up and continued until the year 1866, having in the meantime possession and control of said cemetery, and, during which time, many of the lots therein were sold, from time to time, and conveyed to the purchasers by the said John B. Morrow, Benjamin McMechen, Benjamin B. McMechen, and Joseph M. Bushfield, respectively, the conveyances all being so restricted and conditioned, that the lots so conveyed are to be “used for burial purposes and none other, and under and according to the terms of the charter granted for the incorporation of said cemetery, and in-conformity with the rules and regulations that may from time to time be adopted by the Mount Wood Cemetery Company, under the charter aforesaid; that in course of time difficulties arose between the officers and trustees of the “Mount Wood Cemetery Company, and the lot holders on one part, and the said John B. Morrow, the owner- of the unsold lots and ground, upon the other, which seemed impossible to reconcile under the charter of March 20, 1848, and therefore by the mutual consent of the lot holders, and the said John B. Morrow and the “Mount Wood Cemetery Company,33 the re[136]*136spondent was incorporated and organized under the general law of March 2, 1864, to take the. place, .and act as 4he successor of Mount Wood Cemetery . Company,” and the said John R. Morrow sold and conveyed .to respondent all the unsold lots in said cemetery, being, in number from one thousand to two thousand, and all his interest in said cemetery, which conveyance was executed June 10, L867,.and recorded August -5, 1867, in. said .recorder’s office; that- on the fust of September,.1869, respondent purchased from one William Tallant, an additional piece of ground contiguous to that conveyed to it by ' said Morrow, and within the cemetery enclosure, and immediately thereafter laid the same out into burial lots, walks, .and carriage ways, as part of said Mount Wood Cemetery; that said Tallant conveyed said . piece of ground to respondent by deed of September 1, 1869, which was duly recorded April 15,1570, in said recorder’s office; that ever since said conveyances, were made to respondent, it has endeavored to make sales of the unsold lots to every person desiring to purchase .for burial purposes, and it has sold many lots for such, .purposes-, and none other, executing .to the purchaser deeds therer for; that about mne thousand of said lots remain unsold, and are.now owned by respondent; that by the act of March. 4, 1868, entitled .“An Act to authorize the trustees of.Mount Wood Cemetery,Association to levy a special annual tax upon the lot .holders..thereof,” the Legislature of the State recognized respondent as in the possession.and control .of said Cemetery, it being,the only burial ground owned, controlled and possessed by it; that respondent consents to the trust created -by .the said sixth clause of said, will, and asks that the,same may be carried out fully and in good faith. ■ The answer further alleges that the, testatrix was. the widow of Charles D. Knox,- deceased, who died many years before, the said Martha, and who was buried upon one. of the lots in said cemetery, .which he owned at his death,-and which after-wards was improved by and claimed, and under the con- ■ [137]*137trol of the-said testatrix,-as a family burying ground until her death, she having also donated money for the general improvement of said Cemetery. Copies of the deeds referred .to in said answer,, from-John R. Morrow and William Tallant, are'filed therewith as exhibits.”
The deposition of John Bishop is taken and filed by defendants, and he therein deposes to the truth • of the facts stated in .the-answer -of said Association. By the second clause • of said will the testatrix devises all her “estate both real and ■ personal, to Daniel C. List and James P. Rogers, to be.held by them, and the suvivor of them, on the trusts hereinafter mentioned, and not otherwise.” And in orden that they may have the fall control of her estate, as she' says in" said clause, she nominates and appoints said List, and-Rogers the executors of the will.
On the amended bill there is this endorsement, signed by the counsel of each of the defendants -and of the plaintiffs to this effect: “Agreed, that this case shall be heard as if proper summons had been, in due time, issued and served on the amended, as well as original bill, against all the-.defendants.- The demurrer-of List and Rogers is to be regarded ■ as a demurrer to each of said, bills.”
■ The cause was heard by. the said circuit court on the twenty-third day of January* 1875, on the-original and amended bills, and the-exhibits filed therewith, the summons and returns, the agreement of the- parties endorsed on the amended bill, the demurrer of the defendants and joinder therein by the plaintiffs, the answers and exhibits therewith filed, and the general replications of the plaintiffs to these answers respectively, the- deposition of John Bishop, and the former orders'and proceedings in the cause : And the court adjudged and declared the sixth clause of the will of Martha Knox-, mentioned in the bills and proceedings,-and the devise and bequest in said clause expressed, to be made* to be void and of no effect; and that the plaintiffs, as the heirs and distribu-[138]*138tees,of tbe said Martha.Knox, are entitled to-fhe residue" i» that clause mentioned-of the estate real and personal, to which 'the s.aid Martha Knox at the. time of her death was entitled, including the proceeds mentioned in the original bill, of that portion • of said residue which ■ was.sold by the- defendants, List and Rogers, trustees and executors, named in said will, and th.e interest, profits, rents and dividends arising since the death of the said Martha Knox, from the said residue and proceeds or. any part thereof, os which without the neglect or default of the said trustees and executors, ought to have been collected and received- by them, subject nevertheless to the. costs of the suit, and- the expenses of disposing of, ascertaining and distributing th.e said residue, as herein provided, which cost and expenses the said trustees and executors are “hereby directed to payout of said residue- and proceeds.-’- And the court also adjudged, .ordered and decreed, that the cause be referred to a commissioner of the co.urf, who giving .reasonable notice to the parties, shall; take and state an account of the residue and pro.-eeeds aforesaid) and of the interests, profits, rents and dividends and expenses aforesaid, and make report thereof, to the .court, with all convenient speed, -together with anything deemed pertinent by himself, or specially required by any party. And all other questions and directions are reserved. From this decree the defendants applied for, and-obtained from, one of the Judges, of this Court-an appeal-to this Court. The appellants in their petition assign the following as errors in said decree, yiz.:
“1. Because the bill- was insufficient, and did not show any cause for the annulling the said sixth clause of the. said will, and the demurrer • thereto ought, to have been sustained.
“•2, Because th.ere is. nothing contained in the said sixth clause in any .wise contrary t.o the law of the land) or was in any manner- unlawful, as appears by the. said will and the other pleadings..
[139]*139“3. Because there was no judgment on the demurrer.”
No other errors of importance have been assigned or brought to the attention of this Court by, the appellants’ counsel. And no exception has been made or interposed by, the appellee’s counsel as to the decree in this cause not being such from which, an appeal is authorized. The."' counsel for appellants and appellees in their arguments before this Court, seem to admit that the decree is such as authorizes an appeal, therefrom to this Court. I have not, therefore, examined this question with the s.ame. care as I should, if the jurisdiction of this Court to entertain this appeal had been brought in question by the counsel ; but from the examination a.nd reflection I have given the subject, I think this Court has authority under the law, to entertain this appeal and to consider and- determine- • upon the correctness of the decree appealed from.
The appellees, by their counsel, claim, and argue .that ■ the said sixth clause of said will is void because it is an indefinite charity or- trust, and, ■ if no.t void, on- this account, it constitutes a perpetuity and-is therefore void at common daw. Before entering upon the discussion of any of the questions involved,.for- decision, I deem it proper to state some of the legislation of Virginia and "West Virginia, bearing, in principle, at least, upon, some of the questions before us. In 1832 the case of Gallego’s Exors. v. The Attorney General, 3 Leigh. 450, which is hereinafter referred to, was decided, and- in, and by, that case, some of the most important principles of law and equity applicable to this case were settled- and determined ; and as thus settled and. determined -they have remained and continued to be the law and rule in Virginia and West Virginia from that .time-to the present, except so far as changed by subsequent acts of the legislatures or the constitutions of the states, respectively. By an act of the Legislature of Virginia, passed Februar.y 3, 1842, (Va. Acts, 1841-2, p-. 60,) it was provided-that “when ■ any lot or part of .a lot, tract or parcel of land, has been heretofore conveyed .or devised, to one or [140]*140more trustees for the use and benefit of any religious congregation, as and for a- place of public worship, the same, and all buildings' and improvements thereupon, shall be held by such trustee or trustees and their successors for the purposes of the trust and not otherwise.” This act applied alike to conveyances and devises whether made before or-after it took effect; but is expressly limited, by its terms, to conveyances and devises to trustees for the benefit of a religious congregation. So far as I now remember, the law .remained in-this form until the revision of 1848 of the laws of Virginia. The re-visors, in their report of 1848, proposed a- provision of wider scope and operation. They reported the following as the eighth section of chapter seventy-seven of the code of Virginia. (See revisers’ report, page 411.) “8-Every conveyance, devise or dedication, shall be valid, which, since the first day of January, 1777, has been, or hereafter shall be, made of land for the use or benefit of any religious congregation as a place for public worship, or for religious or other instruction, or as a burial place or residence for-a minister; and the land shall be held for such use or benefit, and for such -purposes, and not otherwise.” But the legislature in acting on the report, made a material change in the section so reported. The said eighth section, as adopted by the legislature of Virginia, reads as follows: “8. Every conveyance, devise or dedication, shall be valid, which, since the fifst day of January, 1777, has been made, and every -conveyance shall be valid which hereafter shall be made, of land for the use -or benefit of any religious congregation as a place of public worship, or as a burial place or a residence for a minister; and the land shall be held for such use or-benefit, and for such purpose, and not otherwise.” The -section as reported by the- -revisors, declared every- conveyance, devise or dedication for the purpose'specified to be valid;- but the section, as adopted as applicable to the future, only provides as ■ to conveyances and not devises. ■ In the case of Seaburn’s [141]*141Exors. v. Seaburn, 15 Gratt. 423, it was decided, by the court of appeals of Virginia, in 1859, that “The code of Virginia, chapter seventy-seven, section eight, does not authorize a devise'of land for the use of a religious congregation, but' only a conveyance by deed.” Of course the same rule must apply, to a “burial place or a residence for a minister,” in construing said eighth section. Said eighth section as' found in the code óf Virginia’ of 1849 is contained in the code of 1860, page 412. The provision contained in’the code'of West'Virginia of 1869 is the same, in' effect, as the eighth section of said chapter seventy-seven, in the code of 1849 of Virginia. (See section one of chapter fifty-seven, page 414 of Code of "West Virginia.) The eighth section- of chapter seventy-seven of the code of Virginia, continued to be the law of "West Virginia, until the code of 1869, of West Virginia took effect, and was continued by said last named code, and is still in force.
Mrs. Martha Knox, as we have seen, died in September, 1871, at which time her will-took effect. The said first section of chapter seventy-seven of the Code of West Virginia, does not authorize or make valid the said sixth clause of said will. And' it may-safely be: assumed-that there was no statute law in force at the making-of said will, or the death of said testatrix, or since, that authorized or made-valid, the said sixth clause of- said will. The sixth clause of said will, manifestly, is not covered by any provision in tlie said first section of chapter seventy-seven of the code of West Virginia; and 'if said sixth clause of said-will is valid, it must be so by virtue of some law independent of any statute law of this State; and I am not aware that we have any law in force in this State applicable to this'case independent of the statute law, unless it be the Constitution or the common law. It is not contended that there is any provision in the Constitution which- authorizes the- said- -sixth clause, or can be applied to it. The English statute of uses, (if- ever in force in Virginia) was repealed in-1792 by the Legisla[142]*142ture of Virginia, and courts of-chancery have no juris-^o- decreé' charities -under and by virtue of that statute. Gallego’s Exors. v. The Attorney General, 3 Leigh. 450; Brooke v. Shaklett, 13 Gratt. 301; Seaburn’s Exor. v. Seaburn, 15 Gratt.; Bible Society Pendleton, Trustee, 7 W. Va,, 79.
It only remains to inquire whether said sixth clause, of said will, is valid at common law,-and, if not, to whom .should‘the property or estate, real and personal, mentioned in said sixth clause, or the proceeds 'thereof, -go ?
Joseph Gallego1, who died in .July,- 1818, was seized and possessed of a large estate, real and personal. He resided, at his death-, in the city of Ri'chtnond, Virginia. He made a- will before his death, which 'seems to have been duly executed, and in his said will he directed his executors to layby $2,000, to be distributed clmong needy, poor and respectable widows; and, in case the Roman Catholic Chapel shall be' continued at the time of his death, to pay $1,000 -towards -its support; and, if the Román Catholic Congregation shall come to a determination to build á chapel at Richmond, to pay $3,000 towards its accomplishment; and-he devises a lot in Richmond, to four trustees in fee, upon trust to permit, all and every person belonging to the Ro'man Catholic church, as members thereof, or professing that religion, (md residing in Richmond at the time of his death, to build a church on . the lot, for the use of themselves,- and of all others of that religion] who may hereafter reside in Richmond-. Upon information filed by the Attorney General, in chancery, to enforce the charitable bequests and devise; Held, that the beqtíests and devise are uncertain as to the benefi.ciaries,-and are, therefore, void; Gallego’s Exors. v. The Attorney General, 3 Leigh 450. In that case Judge Carr, on page, 462, says, in speaking 'of the statute 43, Elizabeth: “and ás that statute-,.¡if ever in force here, was repealed in 1792,1 conclude that charitable beqtíests -stand ■ on the same footing, with .-us, as-all others,-and [143]*143will alike be sustained or rejected by courts of equity. I think that the bill of the attorney general must be dismissed.” Cabell, Judge, concurred in opinion with Judge Carr. Judge Tucker, in same case, on page 465, says: “ There is no principle supposed tobe more perfectly settled, in reference to conveyances* than that every deed must have sufficient certainty, as to th'e grantee, who is to take under it. If there be such uncertainty as to the grantee, that it cannot be known distinctly who is to take by the grant, it is ipso facto void, for that uncertainty.” Again on page 466, Judge Tucker says: “ There is not more necessity for á properly defined grantee, in a deed,- than for a cestui que trust capable of taking, and so defined and pointed out, that the trust will not be void for uncertainty. In short, there cannot be a trust without a cestui que trust; and if it cannot be ascertained who the cestui que trust is, it is the samé thing as if there was none. These principles, it is confidently believed, are the general principles of the common law upon this subject.” Again, on page 467, the same Judge says: “A diligent search has led me to the conviction, that there was no case at common law, in which a bequest or a trust of this indefinite character, could be supported; and the learned counsel on both sides have acknowledged that they have been unable to discover any case anterior to the statute of 43 Elizabeth, in which the validity of such bequests or trusts has been distinctly recognized by the courts. It ought, therefore, perhaps, to suffice to rest the argument here ; since, if under the general principle the bequest would be void, it is incumbent upon those who claim to be protected by an exception, to establish that exception. Accordingly, it is contended that gifts for charitable uses furnish an exception ; and when it is answered that indefinite charities received their whole force and efficacy from the statute, 43 Elizabeth it is confidently replied, that charities existed, and Avere recognized by law, anterior to that statute; that the -statute itself affords evidence of the fact; that it [144]*144oughl not to- be regarded as an enabling statute, or as 'creative of an original power not before existing, but as affording new and additional facilities for the administration of charities of a particular description. * * That charitable gifts were known and recognized by- the law anterior to the statute of Elizabeth, it is not necessary to deny. It is not doubted that many charitable gifts were so known and recognized. Charitable gifts for meritorious -purposes, not within the statutes of mortmain, were doubtless held good and enforced, when the beneficiary or grantee was a person,' whether natural or artificial, capable to take. Thus a bequest to acorpo.-ration capable to take, is, and always was valid as a charitable gift.-” *- * Again, on page 471: “It is far more reasonable to conclude, that, as these vague dispositions were certainly against the principles of the common law, this new statute was enacted for the purpose of giving validity, and enforcing them, by a scheme, cl umsy enough, it must be admitted, and therefore affording strong evidence that the commodious remedy in equity was unknown, but obviously designed for that purpose as I shall presently show.” Again, on page 474 the same Judge says: “ Having thus deduced from the statute of charitable uses, that before its enactment, indefinite legacies were not considered as susceptible of being enforced, though for charitable objects, it may next be observed, that- the scanty cases to be found in the early reporters, afford no ground-for a contrary opinion-.”. See also 4th Wheaten 1. Judge Tucker, at pages 480 and 481, 3 Leigh, further says: “ But it is relevant to observe, that conveyances in mortmain to corporations, were not more calculated to produce a pernicious locking up of property, than charitable bequests of this indefinite character. A corporation may be dissolved, and the property may be again taken up into the general circulation, by reverting to the donor. . But these charities never die. - There is no means of putting an end to them in the lapse of ages,; for according to this celebra[145]*145ted doctrine of cy pres, if the original object should fail, the attorney general and the master in chancery go to' "work to digest another scheme, cy pres the original tention of the donor. Such was the case of the charity to William and Mary College. Experience has justified these complaints, and accordingly, about. one hundred years ago, the parliament of Great Britain found itself compelled to pass the statute of 9 George II, which, in important particulars, repeals the statute of 43 Elizabeth. It is at this moment, when the country whose -laws we have adopted, has partly receded from the wretched policy of permitting the whole property of society to be swallowed up in the insatiable gulph of public charities, that Ave are called upon to reanimate the pernicious principle, which they now deprecate, and \\'hich with us has been sleeping in inaction, for nearly two centuries and a half. And this, too, when we have put off the panoply of the mortmain acts by the general repeal of them in 1792. It is said, indeed, that the legislature may pass the necessary laws for regulating these charitable gifts, and thus prevent the evils that might flow from the unlimited permission of them. But I think, under the existing doubts which hang around the subject, and after the lapse of centuries, during Avhich the latv respecting charities, if it ever existed here, has. been silent and quiescent, it behooves the judiciary to leave to the legislatures the duty of waking it into life.” I shall not quote further from this case, but refer to the other portions of'the opinion of the judge bearing on the question under consideration, not quoted. In the case of Brooke v. Shacklet 13, Gratt. 301, the ease of Gallego’s Exors. v. The Attorney General was approved. So also in the case of Seaburn’s Exor. v. Seaburn, 15 Gratt. 423 the case of Gallego’s Exors. aforesaid, was recognized as laAAq except so far as it may have been modified by statute. And this Court, in the case of the Bible Society v. Pendleton, Trustee, 7 W. Va., recognized the principles determined in the -Gal-lego case as law in this State, except so far as modified [146]*146^7 subsequent'legislation, and in that case,.the lamented Pauli, in delivering the opinion of the court, said “These indefinite charities, however it may.be in other States, have in "Virginia been held, invalid at common law by the highest court, and since the repeal of the statute of 43 Elizabeth, by her legislature, have, been held incapable of execution. The want of clearly recognized grantees or of clearly recognized beneficiaries, constitute the indefinite character of these charities, and renders them void at common, law.”. See also Dashiell v. The Attorney General, 5 Har. & Johns, 392, 6 Ib. page 1. Levy v. Levy, 33 N. Y. 97. In the case of Dashicll, the testator directed his executors, after payment of .his debts, to pay over the proceeds of his estate to trustees named in the will, to be applied .in part “towards feeding, clothing and educating the poor children of Caroline county, in the State of Maryland,, ivhich attend the poor charity school established at Hillsborough in said county, the trustees of which school are .to receive from my trustees the aforesaid appropriation- in payments, at every six or twelve months, and appropriate the same in the manner I hay.e now willed.” The..court of appeals .of Maryland held the devise to be void, because “no persons exist having in themselves a .vested .equitable interest which they are capable of enforcing in a court of equity. “The bequest,” said the court, “therefore is too vague and indefinite to be carried into execution on general principles, .there being none who can show themselves entitled to the beneficial interest; but is void, and the subject of the trust being undisposed of, the benefit of it results to the next of kin as in the case of Morice v. The Bishop of Durham 9, Ves. 399. If it were otherwise, the trustees, by neglecting to execute the trust, might virtually convert the trust into the ownership of the .trust fund. * * There .is no..difference whether a devise or bequest be immediate to an indefinite, object, or to a trustee for the use .and benefit of an indefinite object.,. If it be immediate.,to an indefinite object, it.is void, :and if the trust be [147]*147for an indefinite object,-the property-that is the subject of the trust-is not- disposed - of, and the trust results for the benefit of -those- to whom the law gives the property in the absence of any disposition of it by the testator or donor," 5 Han. & Johns 399, 400. In the case of Levy v. Levy, 33 N. Y. 97, Wright, Judge, who delivered the only opinion that appears in the'-easc, says-on page 101, “the residue of the estate is donated in trust, to establish and maintain,-perpetually, in-a foreign State, a school for agricultural instruction of half orphan - children ot warrant officers of the United States Navy. This disposition, it must be conceded, according to the -ordinary rules of law, and'-the general rule in-'chancery as to trusts, •is void. It cannot be .claimed -that at common law, there can be a val-id devise or bequest to-an -indefinite object, or a-valid use without-an ascertained cestui que trust or beneficiary. Again he says on same page, “There must be a beneficiary or certain equitable donee,- grantee or devisee. If a trust be by will declared, and there be a certain--beneficiary, capable of coming into court and claiming the benefit of the trust, it is good. On the contrary, if-there be ho ascertained beneficiary,-no definiteness of purpose will raise a trust.”' Again on page 102, he says, “there can be no valid trust unless there be a certain donee or beneficiary whom the law will recognize ; and if there be, the use will not be defeated, though no trustee be named, or the trustee named be incapable of taking.” And the Judge cites a number of authorities to sustain this proposition, and he recognizes the decision in Gallego’s Exors, as being a correct exposition of the law, and approves, and quotes largely from, the opinion of Judge Tucker in that ease.
In the Levy case the judge further says on page -102; “There being a sufficient declaration of the use, and a certain beneficiary ascertained, -the presence or absence of a trustee-in the-limitation -will make--no-difference-, for equity will not- allowa-gift-to -fail -for want -of'a trustee,” and oU'pagB-one hundred-and seyen/he further- say's: [148]*148charitable trust is simply an indefinite, or uncertain h’ust — a trust without a beneficiary; and certainly a trust of that description is void by the rules of the common law as it existed at the time of its adoption by us, and now exists,” etc. In the case of Morrice v. The Bishop of Durham, 9 Ves. 521, Lord Chancellor (Elden) says on page 527 : “If a testator expressly says he gives upon trust, and says no more, it has been long established that the next of kin will take. Then if he proceeds to express the trust., but does not sufficiently express it, or expresses a trust that cannot be executed, •it is exactly the same as if he had said, he gave upon trust and stopped there, as in The Bishop of Cloyne v. Young. There is no difficulty upon that.” See also p.p. 537, 539. “Once establish that a trust was intended ? and the legatee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the objects of that trust, or though he declares the trust in such way as not to exhaust the property, or though he declares it imperfectly, or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded, and the next-of kin will take.”
In the case of Wheeler v. Smith, 9 Howard, 55, it was held by the Supreme Court of the United States, “That .the statute of 43 Elizabeth, respecting charitable uses, having been repealed in Virginia, the courts of chancery have no jurisdiction to decree charities when the objects are indefinite and uncertain. Therefore when a bequest was made to trustees for such purposes as they considered might promise'to be most beneficial to the town and trade of Alexandria, such bequest was void.” In that case Justice McLean delivered the opinion of the court, and after citing several cases bearing on the question, he says: “From the principles laid down in the above cases, it is clear that the devise under consideration cannot be sustained. A trust is vested in the executors, but the beneficiaries of the trust are uncertain, and the mode of applying the bounty is indefinite. It is [149]*149urged that the testator intended to give to the town-of' Alexandria in its corporate capacity, the residmim of his“ estate. But he did'not so express himself.' ' On'the contrary, it clearly appears- that the executors were made the repositories - of hi's confidence, and'the only persons -' vtho were authorized to administer the trust. The cestui' qué trusts were the town and the trade of the-town'. It' would-be difficult to-'express in more indefinite language the beneficiaries of a trust. How cari’ a court' of chan- 1 eery administer this trust? On what ground can they' remove the trustees for an abuse of it ? - The discretion ' of the trustees may be exercised without limitation, ex- ’ cepting that the fund must be applied for the benefit of the trade ánd town of Alexandria.” It ■ must be clear, from the authorities cited, that the statute 43 Elizabeth; if ever in force in Virginia, was repealed, and that the principles settled in the case of Gallego’s Exors. v. The Attorney General, 3 Leigh., is the-law in Virginia and. West Virginia, except, so far as-since modified or changed" by acts of the legislature; Whatever may be the law- in.’ other states, there can 'no longer be any doubt that-in-Virginia and West Virginia indefinite charities are-void. The want of clearly recognized beneficiaries, constitutes the indefinite character of these • charities and renders them void.
It seems the Mount Wood Cemetery Association is-a-' corporation organized in 1866, under an act of the legislature. The bequest under ■ consideration in this case is not to the Mount Wood Cemetery Association, nor -in-, trust for it, but for the' repair and embellishment of Mount Wood Cemetery, near the city of Wheeling, irrespective of the ownership. The corporation is- no -more the' cestui que'trust than is each owner of. a burial Tot. The bequest fails to designate or recognize clearly any cestui que trust. There is no' beneficiary who could compel t-he‘ trustees to administer the trust, according to the terms- or meaning of the bequest. ' The bequest recognizes no -beneficiary who can sue the-trustees in equity. There is [150]*150n0 certain beneficiary recognized by the bequest who has • any. certain, definite right.-- The investment, is to remain perpetually, and'the income is to be appropriated by trustees who were selected by. the testatrix as the repositories of her confidence,.as they shall..deem necessary or proper-'to the .purpose expressed-in-the¡will. -If the owner of any one burial lot claims' that any amount of the income shall be applied- .to repair his grounds,, or to embellish them, it would, on the part of the trustees, be a sufficient answer, -that t-hey had appropriated or intended to appropriate, -the income of the fund in a differ-ferent.place consistent-with-the .purpose declared in the will, or to the repair -and embellishment of other portions of the Cemetery. If the provision of the bequest is to be carried into execution,-the plan and mode in which the income'is to; be-applied to the repair and embellishment of the Cemetery, -depend upon the the judgment of-the trustees .and- they- may apply, much or little, or none of it to any particular part of. the land. No person is’ entitled to any definite or ce'rtain right, nor can any one' file a bill in equity against -the- trustees on - the .ground, that they have applied,-or are .about to apply, .the income of the fund to other parts of the cemetery grounds not belonging to the complainant. The highest courts of several states of the Union have ruled and decided differently, as-to-indefinite charities, from the'courts of Virginia, but it is only because of the courts of those states determining the. law in> their respective states on'the subject to -be different from what it is in-Virginia and West Virginia -upon' the subject. Upon the -whole, I am of opinion that said bequest is void, because as a charity, it is in definite ¡and uncertain — no cestui que trust is clearly ascertained. And I-am further of the opinion under the, authorities cited, bearing on the subject, that the whole amount of the proceeds of .the -property real and personal mentioned in said sixth bequest, and devised, to said trustees in and by said sixth-clause of -said will,, should ’and does,-by the -law-of this- State, pass:to the [151]*151plaintiffs as the next of- kin and legal heirs of' the testatrix.
But it is-arguedthat'the plaintiffs- must elect; and if they claim the provisions made for their benefit in the third and fourth, clauses of the will, they must confirm the devise contained in the sixth clause. The principle of election by implication, in equity, depends o'n the circumstances that the same instrument which transfers or conveys certain property of the testators to one legatee or devisee, transfers or conveys certain other property to another legatee or devisee, and that the former beneficiary, availing himself of the instrument in one particular, must not defeat its operation in another. But if the latter devise or bequest be invalid — if the instrument in respect to it be legally inoperative and void — the former beneficiary, retaining his own property, does- not defeat the operation of the instrument. If it be a will, it does not defeat the intention of the testator legally declared. Retaining the subject of a transfer does not disappoint the instrument, if the law has already avoided and nullified the transfer.” 1, Leading Cases in Equity, ed. 1859, top page 404; Hearle v. Greenbank, 3 Atk. 715; Kearny v. Macomb; 15 N. J., ch. 195-7; Gardner v. Fell, 1 Jac. & Walk. 22; Sheddon v. Goodrich, 8 Ves. jr. 481; Wellaston v. King, Law R. 8 Eq. Cas. 165; Fowler v. Fowler, 33 Beavan 616; Thorndike v. Loring, 15 Gray 391; Battle Square Church v. Grant. 3 Gray 143.
The court in decreeing, as it did, on the bills, must be considered as having passed upon the sufficiency tíf the bills on-the demurrer. = And although the court did not “proforma, overrule the demurrer filed in the cause, the bill being sufficient and containing sufficient- matter to give a court of equity, jurisdiction, the court did not commit an error -for which its decree should be reversed.
It is also argued by the counsel for the appellee that said sixth-clause or bequest in the will of the testatrix, is void, because it constitutes a .perpetuity of the-estate devised, and is prohibited by the common law. • We have [152]*152no statute in this State prohibiting perpetuities, but under 'and by the express provision of the thirty-sixth section of Article eight of qur State Constitution; such parts of the common law as were in force when, the Constitution went into operation and are not repugnant thereto, shall be and continue the law of the State until altered or repealed by the legislature. The common law prohibiting perpetuities, is in force in this. State, except so far as it has been modified or repealed by the legislature by general or special act. In the second volume of Bouvier’s Law, Dictionary, a perpetuity is defined to be “Any limitation tending to take .the subject of it out of commerce for a longer period than a life or lives in being, and twenty-one, years beyond; and in case of a posthumous child, a few months more, allowing for the term of gestation. Randall on Perpetuities, 48 or it is such a limitation .'of property as render it unalienable beyond the period allowed by law, Gilbert on Uses, by Sugden, 260, note.” See also Scattergood v. Edge, 12 Mod. 278; Randall on Perpetuities 49; Cruise’s Digest tit. 32, c. 23;, 1 Supp. to Ves. Jr. 406; 2 Ves. ch. 357; 3 Saunders 388 h. note; Com. Digest, Chancery, 4 G. 1; 3 Chan. Cas. 1; 2 Bouv. Inst. n. 1890—All of which are cited by Bouvier. In the case of Adams v. Alvin Perry, 43 N. Y. 487, it was held that a bequest to trustees of personal estate to invest and re-invest and pay over the income to an incorporated academy forever, is void under the statute of perpetuities. In New York, there is a statute against perpetuities, but is not different in principle from the common law as to prohibiting perpetuities. It may be that if said sixth bequest was not void for the reasons hereinbefore stated, and it were admitted that the cestui que trust was sufficiently, .ascertained to be “The Mount Wood- Cemetery Association,” then that still, said sixth bequest or clause of said will would be void at common law, as tending to create a perpetuity. But I do not now decide that question, as it is immaterial under the view already taken. Thomas v. Shakespear, [153]*15362 Eng. ch. 399; Carne v. Long, 63 Eng. ch. 75. 2 Redfield on Wills ed. of 1866, p. 821, note, and ed. of 1870, p. 546, note. Lloyd v. Lloyd, 2 Simons, N. S. 255; Ricard v. Robson, 31 Beavan 244; Fowler v. Fowler, 33 Beavan; Hare v. Osborn, Law. R. 1 Eq. Cas. 585. Fisk v. Attorney General, L. R. 4 Eq. Cas. 521. It will be seen by said sixth bequest in connection' with the seventh, that in addition to giving the property expressly to the trustees, creates an active trust in them, and their successors.
For the reasons herein stated, the decree of the circuit court of the county of Ohio, rendered in this cause on the twenty-third day of January, 1875, must be affirmed with costs and $30 damages.
Moore and Green, Judges, concurred.
Degree Affirmed.