The opinion of the court was delivered by
Ross, J.
The questions raised in this case are in regard to the validity of the third and fifth bequests in the testator’s will. The third bequest is expressed as follows: “ I give and bequeath the sum of one thousand dollars, to be paid by my executor here[280] inaftcr named, for the education of the Freedmen of this nation, as soon after my decease as it can reasonably be collected and appropriated to that end: his best judgment and discretion to be exercised in said appropriation.”
The sum withdrawn by the testator from his estate and set apart for the object named, is definite and certain- — one thousand dollars. The beneficiaries who are made the subjects of the testator’s bounty, are the “ Frcedmen of the nation,” a well known class, and at the time of making the bequest, March, 1866, recently emancipated from slavery. Their wants and condition were then subjects prominently before the public, and well known to the testator. The object for which the bequest was to be expended is specifically named — the education of this class of persons. The person who is to be the almoner of the testator’s bounty is appointed by the testator- — -“my executor hereinafter named.” Everything is thus made definite and certain by the testator, except the particular mode of appropriating the bequest for the object named. This the testator has entrusted to the “ best judgment and discretion” of his executor. The executor is alive and willing to discharge the duty thus cast upon him. • No authority has been cited by the counsel for the heirs, nor do we think any exists, which holds that the testator may not entrust the particular mode of appropriating his bounty for the object named, to the -determination of a person appointed by him. There are many authorities which hold that the testator has this right and power, and its exercise will not render void the bequest. The general doctrine is, that whenever a testator has appropriated a definite portion of his property to a specific object, without appointing a trustee, the court of chancery will administer the trust, and allow no trust, otherwise valid, to fail for the want of a trustee. We do not think the Freedmen’s Bureau has any claim upon this bequest. To give it to that society, though organized under an act of Congress, and operating for the education of the freedmen, would defeat rather than execute the intention of the testator, who has entrusted the selection of the mode of appropriating the bequest to his executor. We think the decree of the probate court and of the c-'mrt of chancery, leaving this bequest in the hands of the executor, to [281] be appropriated by him in his best judgment and discretion to the education of the Ereedmen, was correct, and in accordance with the intention of the testator.
II. The fifth bequest isj “ I give and bequeath the residue of my property to the Methodist Episcopal Mission at Bombay.” It is conceded that, neither at the time of the execution of the will by the testator, nor at the time of his decease, was there, nor since then has there been, any such person, or body corporate or incorporate, in existence, known by the specific name of the Methodist Episcopal Mission at Bombay. This bequest, therefore, cannot be upheld as a bequest to any person or body corporate or incoi'porate by name. If it is a bequest to a legal devisee, it must be to such devisee by description rather than by name. Bequests may be made to a devisee by description, as well as by name. Button, Exr. v. American Tract Society, 23 Vt. 336 ; Brewsters v. McCall’s Devisees, 15 Conn. 274; Minot v. Boston Asylum, 7 Met. 416 ; Tucker v. Seaman’s Aid Society, 7 Met. 205. It is evident that the testator at the time he made the bequest, had in mind some object for which he desired to have the residue of his property expended, and some person or corporation through whose instrumentality he desired the expenditure to be made. Has the testator by the words, “ The Methodist Episcopal Mission at Bombay ” sufficiently described the object for which he desired to bestow the residue of his property, and the person or corporation through whose instrumentality the same was to be appropriated to that object, one or both ? To aid in determining this question, extrinsic evidence of the circumstances which surrounded the testator at the time he made the bequest, may be received.
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The opinion of the court was delivered by
Ross, J.
The questions raised in this case are in regard to the validity of the third and fifth bequests in the testator’s will. The third bequest is expressed as follows: “ I give and bequeath the sum of one thousand dollars, to be paid by my executor here[280] inaftcr named, for the education of the Freedmen of this nation, as soon after my decease as it can reasonably be collected and appropriated to that end: his best judgment and discretion to be exercised in said appropriation.”
The sum withdrawn by the testator from his estate and set apart for the object named, is definite and certain- — one thousand dollars. The beneficiaries who are made the subjects of the testator’s bounty, are the “ Frcedmen of the nation,” a well known class, and at the time of making the bequest, March, 1866, recently emancipated from slavery. Their wants and condition were then subjects prominently before the public, and well known to the testator. The object for which the bequest was to be expended is specifically named — the education of this class of persons. The person who is to be the almoner of the testator’s bounty is appointed by the testator- — -“my executor hereinafter named.” Everything is thus made definite and certain by the testator, except the particular mode of appropriating the bequest for the object named. This the testator has entrusted to the “ best judgment and discretion” of his executor. The executor is alive and willing to discharge the duty thus cast upon him. • No authority has been cited by the counsel for the heirs, nor do we think any exists, which holds that the testator may not entrust the particular mode of appropriating his bounty for the object named, to the -determination of a person appointed by him. There are many authorities which hold that the testator has this right and power, and its exercise will not render void the bequest. The general doctrine is, that whenever a testator has appropriated a definite portion of his property to a specific object, without appointing a trustee, the court of chancery will administer the trust, and allow no trust, otherwise valid, to fail for the want of a trustee. We do not think the Freedmen’s Bureau has any claim upon this bequest. To give it to that society, though organized under an act of Congress, and operating for the education of the freedmen, would defeat rather than execute the intention of the testator, who has entrusted the selection of the mode of appropriating the bequest to his executor. We think the decree of the probate court and of the c-'mrt of chancery, leaving this bequest in the hands of the executor, to [281] be appropriated by him in his best judgment and discretion to the education of the Ereedmen, was correct, and in accordance with the intention of the testator.
II. The fifth bequest isj “ I give and bequeath the residue of my property to the Methodist Episcopal Mission at Bombay.” It is conceded that, neither at the time of the execution of the will by the testator, nor at the time of his decease, was there, nor since then has there been, any such person, or body corporate or incorporate, in existence, known by the specific name of the Methodist Episcopal Mission at Bombay. This bequest, therefore, cannot be upheld as a bequest to any person or body corporate or incoi'porate by name. If it is a bequest to a legal devisee, it must be to such devisee by description rather than by name. Bequests may be made to a devisee by description, as well as by name. Button, Exr. v. American Tract Society, 23 Vt. 336 ; Brewsters v. McCall’s Devisees, 15 Conn. 274; Minot v. Boston Asylum, 7 Met. 416 ; Tucker v. Seaman’s Aid Society, 7 Met. 205. It is evident that the testator at the time he made the bequest, had in mind some object for which he desired to have the residue of his property expended, and some person or corporation through whose instrumentality he desired the expenditure to be made. Has the testator by the words, “ The Methodist Episcopal Mission at Bombay ” sufficiently described the object for which he desired to bestow the residue of his property, and the person or corporation through whose instrumentality the same was to be appropriated to that object, one or both ? To aid in determining this question, extrinsic evidence of the circumstances which surrounded the testator at the time he made the bequest, may be received.
Erom such evidence, we learn that the testator, who had never been able to read or write, through a defect in his eyesight, had for a long time been a devoted member of the Methodist -Episcopal Church, and as such, had been acquainted with, interested in, and a contributor to, the- work of missions as carried on by that church in foreign lands, and especially in India. That church distributed its contributions for missions, domestic and foreign, through a regularly incorporated society denominated “ The Missionary Society of the Methodist Episcopal Church.” That society [282] had established several years before the making of said bequest, a mission in India. It was among the largest and most prosperous, if not the largest and most prosperous foreign mission established by the society. The missionaries sent out by the society to this field of labor, landed at Bombay. In returning home, they sailed from Bombay. The centre of the operations of this mission was established at Lucknow, from which place the missionaries went forth, itinerating over a vast area of the country, populated with millions of inhabitants. It is to be borne in mind that.the testator could neither read nor write, and that all the information he could obtain in regard to these. missionary operations, must of necessity have been acquired from'hearing others speak of them. In speaking of these missionary operations, one would be very likely to mention, that a missionary had arrived at Bombay, or left Bombay for the interior, or on his return home. The testator, obtaining his information from this source alone, with no special knowledge of India as a country, would be very likely to understand that Bombay was the central point from which all the missionary operations of the Methodist Episcopal Church in that country emanated. Hence the bequest to the Methodist Episcopal Mission at Bombay. From this language, interpreted by his knowledge of, connection with, and love for, the Methodist Episcopal Church, there can be no doubt that he intended and made this bequest to carry forward missionary work in the foreign field, under the care and charge of that church, and in that part of the foreign field which, to his mind, was represented by Bombay. This is evident from the words used by the testator, “ Methodist Episcopal Mission at .Bombay.” These words clearly import a gift of the residue of his property to a mission under the charge and care of the Methodist Episcopal Church. The testator has described this mission as located at Bombay. In this there is a misdescription of the location of the object of his benefaction, as there was no such mission located at that place, under the care of that church. A misdescription by the testator of the place at which the beneficiary or object of his bounty is located, will not avoid the bequest, if the beneficiary or object to which the bequest is made, is sufficiently described so that it is made reasonably cor[283] tain. If a testator should make a bequest to his oldest son, at Bombay, and it should turn out that he had no 'oldest son at Bombay, but had one at Lucknow, the bequest would not be void, but would be a valid bequest to the testator’s oldest son, wherever he might be. It would be very different if the bequest should be to his nephew at Bombay, and it should turn out that the testator had no nephew at Bombay, but had several nephews at other places. In- such a case, it would not be clear whicii nephew he intended, without the aid of other proof than that furnished by the bequest. In this case, it appears that no missionary work is carried on under the name of Methodist Episcopal missions, or under the care of the Methodist Episcopal Church, of which the testator was a member, except by the missionary society of that church ; and that that society had no mission located at Bombay, but did have one located at Lucknow, a place in the same country as Bombay, not far from it, and to reach which the missionaries must pass through Bombay. From the language of the bequest, in connection with the facts known to the testator, and the circumstances surrounding him, we think no reasonable doubt can be entertained that the testator intended by this bequest a gift to the missionary society of the Methodist Episcopal Church, to be expended in carrying forward the work of that society in India, through a mission located, according to the testator’s understanding, at Bombay, but which in fact was located at Lucknow. We therefore think and hold, that this fifth bequest is a valid bequest to the missionary society of the Methodist Episcopal Church, to be expended for the object and purpose we have just indicated. In coming to this conclusion, we have had occasion to consider in connection with the language of the bequest, only the circumstances attending the making of the bequest, and surrounding the testator at the time he made the bequest. Such circumstances are always admissible in evidence, to aid in construing written instruments, that the court may be enabled to look at the subject-matter from the same stand-point from which the maker of the instrument viewed it, and thus be enabled to understand and apply the language used, in the same sense in which the maker of the instrument understood and applied it at the time he [284] made the written instrument. Hence we have had no occasion to consider whether.the court of chancery in this state, has all the powers exercised by that court in England before or since the passage of the 43d of Elizabeth, in regard to bequests for charitable purposes; nor whether the doctrine of cy pres prevails hone to the same extent as in England; questions which have been argued at length by the counsel on both ¿sides.
The decree of the court of chancery in regard to the fifth bequest is reversed, and the cause is remanded to that court, with a mandate to enter a decree accor iing to the views herein expressed.