Pell v. Mercer

14 R.I. 412, 1884 R.I. LEXIS 26

Opinion

Dtjrfee, C. J.

This is a bill for instruction in regard to the execution of the will of Alexander G. Mercer, late of Newport, deceased. By the first clause of the will the complainant and Edward King of Newport, and Frederick W. Rhinelander of New York, are appointed executrix and executors, and, in case of the failure of either of them, John J. Townsend of New York as substitute. Edward King died before the testator, and, the other executors named having failed to qualify, the complainant has instituted the suit alone.

The property of the testator amounted, at bis decease, to nearly a million of dollars. It consisted of some real estate, of his personal effects, of a note for $10,000, secured by mortgage given by the complainant, of $136,455.19 in money, and of stocks and bonds. The will is in eleven sections. It does not expressly direct the payment of debts. It expresses tbe hope that the executors will accept a thousand dollars each in lieu of all other remuneration, giving as a reason that the testator regards the execution of his will as “ a work of charity as well as of friendship.” It makes numerous pecuniary bequests, one of five thousand, three of two thousand, and the rest of one thousand and of five hundred dollars each, to individuals and to religious, charitable, and literary societies or corporations. It gives his real property, consisting of a building called All Saints Church in Newport, to trustees in trust for the purposes and uses of religious worship according to the forms of the Protestant Episcopal Church in the United States of America. It gives certain articles, precious to the testator on account of their associations, to two of his friends as souvenirs, and then bequeaths “ all the rest of my personal effects, such as silver, jewelry, furniture,” &c. to the complainant, desiring her, however, to present from the testator to each of his friends some book or other article at her discretion, naming many whom he wishes her to remember. The will declares that the testator does not leave any share of his property to his brother John C. Mercer, “ because he will need none of it,” but requests him to accept two marble lions “ with every kind and earnest good wish.” The will then by Section IX. makes provision in regard to certain other property ; whether it be all his other property is one of the questions which we are asked to decide. The testator divides it into thirty shares, to be held and managed in trust, with direction that the interest on all the shares but two shall be paid to certain persons for life, and that the interest on the remaining two shall be paid to four cousins of the testator until the decease of his brother John C. Mercer. The will then provides by Section X. that, on the death of each of the legatees named in Section IX., his or her share of interest shall accumulate until the death of the last of said legatees, and that then the property with its accumulations shall be divided in three equal parts, and be distributed or applied to differ ent religious, educational, charitable, or benevolent purposes. Tbe eleventh and last section appoints the Boards of Domestic Missions in the Protestant Episcopal and Presbyterian Churches of the United States “ residuary legatees, so that,” in the language of the will, “ in case any of my preceding gifts, specially my gifts to public purposes, should fail (for any reason now unimaginable to me), my property shall surely go, in such event, to the work of establishing the knowledge and following of Jesus Christ among our American people.” “ In conclusion, it is my earnest desire,” says the will, “ that by the wisdom, honor, and energy of my executors, and of the persons intrusted with the several trusts aforesaid, my property may go in the most prudent, economical, and effectual manner to the permanent good benefit of men in case of the bequests to public objects, and in case of the bequests to persons to their comfort and happiness.” This analysis exhibits the general scope and scheme and the more salient features of the will, and, if the entire property of the testator be disposed of, demonstrates a purpose on his part to dedicate by permanent trusts much the larger portion of his large means to the temporal relief and amelioration and to the moral, intellectual, and religious improvement of his fellow men.

The will, which is holographic, bears the date of September 28, 1870. The testator died November 3, 1882. In the interim, between the date of his will and his death he largely increased his property. The bill but slightly shows the circumstances under which the will was made. It does not tell us what was the age, character, habits, or profession of the testator. We infer from the will, however, that he was a clergyman, for he bequeaths his sermons in. it, and that he was a man of mature age, of superior education, of large views and of considerable knowledge of and capacity for business and finance. We also infer from this distribution of bequests and souvenirs that he was a man of genial and affectionate temper, who valued his friends and was glad to have them know that he valued them. The bill shows that the only next of kin of the testator who survived him were his brother John C. Mercer, and his three nieces, daughters of his brother Singleton Mercer. The bill shows that John C. Mercer was a man of large fortune, a fact recognized in the will, and that the three nieces are legatees to the extent of $2,000 each under Section III.

The bill presents thirteen questions under the will on which it asks for instruction from the court. The first question is virtually whether the testator died intestate as to any of his property. The answer to this question depends mainly on the interpretation which is to be put upon certain language contained in Section IX., taken in connection with Section II. Section II. reads as follows, to wit:

“ Section II. I desire my executors to select from my stock investments such of them as it may be most judicious to sell, and to realize from such sales enough money to pay the gifts made in Section III., and afterwards and gradually and to the best advantage to sell all my shares of stock, and to invest the proceeds in the bonds of the State of California, and to deposit said bonds, together with all my other bonds, with the ‘ Pennsylvania Company for Insurance on Lives and Granting Annuities,’ in the city of Philadelphia, for the purposes hereinafter named.”

Sections IX. and X. contain the general residuary bequest, if there be any such, for though the eleventh section appoints the Boards of Domestic Missions in the Protestant Episcopal and Presbyterian Churches residuary legatees, it appoints them such only'to a limited extent: in so far, namely, as bequests made in preceding sections fail. The following is the language of Section IX., which is pertinent to our present inquiry, to wit: “ All my property over and above the gifts made in the preceding sections, consisting of the bonds I now hold or may acquire, and the bonds of the State of California to be purchased by the sale of my stocks as aforesaid, and all of which is to be deposited as aforesaid with the said Pennsylvania Company of Insurance, &c., I divide into thirty (30) shares, to be held and managed by said company, in trust, to pay the interest on these shares to the following persons for the term of their natural lives, to wit: to pay,” &e., naming the legatees for life. The principal of the property, the interest of which is given by Section IX., is, as before stated, disposed of by Section X.

We do not find anything in the will to take it out of the ordinary rule that a will speaks in regard to personal property from the death of the testator, unless it appears affirmatively that it speaks from some other period ; and we therefore cannot discover any ground for contending that the stock and bonds belonging to the testator at his decease did not all pass, unless the provision for investment in California bonds, which we will consider later, may be found to be an insuperable obstacle. The next of kin contend that the only personal property which passes by the will, in addition to what is specifically bequeathed, is that which was invested at the death of the testator in bonds and stocks, and that as to all the rest the testator died intestate. The argument for this rests on the restrictive effect attributed by the next of kin to the words, “ consisting of the bonds,” &c., in the language of Section IX. above recited. The contention is that the purpose of these words is to limit the generality of the preceding words, and so to confine the testamentary operation of Sections IX. and X. to the bonds which the testator had when he died, and to the • stocks then belonging to him which he directs his executors to sell for reinvestment in California bonds. Doubtless the words ought to have this restrictive effect if they were intended to have it. There are two ways of regarding them. One way is to regard them as intended to be restrictive. The other way is to regard them as intended to be enumerative and as failing in completeness of enumeration. When they are regarded in the latter way the testator is supposed to have used the words, “ all my property over and above the gifts made in the preceding sections,” in all their plenitude of meaning, with the intent of disposing of the entire residuum of his personal estate, and that, having used them with that intent, he added by way of enumeration or description the words, “ consisting of the bonds,” &c., and unwarily failed to accomplish a complete enumeration or description. The question is which of the two ways is the true way.

It is reasonable to suppose that a man who makes his will does not intend to die intestate as to any part of his property, and hence courts are reluctant to construe a will so as to allow a partial intestacy if they can avoid it. Lett v. Randall, 10 Sim. 112, 115; Vernon v. Vernon, 53 N. Y. 351, 361; Raudenbach's Appeal, 87 Pa. St. 51. This reluctance becomes stronger when, as here, the bequest which gives rise to tbe claim of partial intestacy is re siduary, or is in tbe nature of a residuary bequest. Pearman v. Pearman, 38 Beav. 394, 396; Leake v. Robinson, 2 Meriv. 363, 392; Staples & Pearce, Trustees, v. De Wolf et als. 8 R. I. 74, 120. We think, too, the disposition displayed by the testator in bis will may be taken into account. It was evidently a pleasure to him to remember bis friends in bis will, and be was not likely to forego it, even in tbe case of bis next of kin, for the more inexpressive form of benefaction by partial intestacy. Moreover, be gave to all of bis next of kin except bis brother, and be excused himself for not giving to bis brother on tbe ground that bis brother did not need any share of bis estate. Tbe excuse is inconsistent with an intent to benefit him by partial intestacy. Tbe will contains other significant indications. He appoints the Boards of Domestic Missions residuary legatees, to take if any of tbe preceding legacies happen to fail; so that what be calls “my property,” using tbe words without any restriction, may go according to bis charitable intent. And afterwards he employs tbe same words still more emphatically, repeating the wish that “ my property ” may go “ to tbe permanent good benefit of men.” It seems very clear, therefore, that be did not intend to die partly intestate, and of course if be did not intend to do it, we ought not to decide that be has done it, unless his language leaves us no other alternative.

There are numerous cases in which words like those on which the next of kin rely have been construed to be words of defective description or enumeration. We refer to the following, cited in the order of their dates by Mr. Gray, counsel for some of the charity legatees. Bridges v. Bridges, 8 Vin. Abr. 295, a. d. 1729; Cambridge v. Rous, 8 Ves. Jun. 12, 26, a. d. 1802; Chalmers v. Storil, 2 Ves. & Bea. 222, a. d. 1813; Ellis v. Selby, 7 Sim. 352, a. d. 1835; Fisher v. Hepburn, 14 Beav. 626, a. d. 1851; Drake v. Martin, 23 Beav. 89, a. d. 1856; In re Goodyear, 4 Jurist N. S. 1243, a. d. 1858; Gover v. Davis, 7 Jurist N. S. 399, a. d. 1861; Dean v. Gibson, L. R. 3 Eq. 713, a. d. 1867; King v. George, L. R. 4 Ch. Div. 435; also, L. R. 5 Ch. Div. 627, a. d. 1871; Mullally v. Walsh, L. R. 3 Ch. Div. 244, a. d. 1879; Sidgreaves v. Brewer, L. R. 15 Ch. Div. 594, a. d. 1880. The case of Bean v. Gibson is exactly in point. There a market woman made her will shortly before her death, bequeath ing ber “ personal property, consisting of money and clothes,” and it was held that the words “ consisting of money and clothes ” did not cut down the gift, being merely imperfect enumeration. In Clark v. Preston, 2 La. An. 580, a will, after divers bequests, gave “the rest and residue of my estate,” and it was held that the generality of the gift was not reduced by subsequent words averring that “this residue will consist of notes due to me at New Orleans.” “ It is safer to adhere to the general rule,” says James, L. J., in the analogous case of King v. Greorge, supra, “ that clear words of gift must have their full effect unless a clear intention is shown to cut them down.” We wish likewise to call attention particularly to the elaborate opinion delivered by Vice Chancellor Malins in King v. George, as reported in L. R. 4 Ch. Div. 435. Our own case of Goddard v. Brown, 12 R. I. 31, 41, 42, which has been alluded to as holding another doctrine, was different in character. The words, “ consisting of all my interest and shares,” on which there the question was raised, were regarded by the court as simply expository and parenthetical.

The will here, drawn by the testator himself, probably without professional advice, is somewhat inartificial in structure and neglectful of detail. It makes no provision for the payment of debts, funeral expenses, or the expenses of administration, though, in its solicitude for the interests of its purposed charities, it requests the executors not to charge over one thousand dollars each for their services. The testator, after remembering his friends, seems to have given his mind wholly to the contemplation of the great charities which he was instituting, and which he meant to have remain forever for- “ the permanent good benefit of men.” It is probable that the creation of these charities had been a long cherished project with him, and that he had been long accumulating for them the bonds and stocks which he held. When therefore, in giving to them the residue of his estate, he incidentally went on to describe that residue, he naturally mentioned what was uppermost in his mind, namely, the bonds and stocks which he had long associated with the charities which he intended to found. It is our duty in construing the will to throw our minds back to the time when it was made. His investments then, so far as appears, consisted entirely of bonds and stocks, and there is no reason to suppose that be had any considerable amount of cash on hand. We are not informed what his habit was, but, judging from the indications of the will, it is not likely that it was his habit to keep any considerable amount of money earning little or nothing ; and he may have thought when he made his will, if he then gave the matter a passing thought, that his idle cash would never amount to more than the executors would require for the purposes which he left them to attend to without express provision. We conclude therefore, notwithstanding the very able argument submitted for the next of kin, that the residue in Sections IX. and X. is not to be limited to bonds and stocks, but includes everything, not included in preceding devises or bequests, over which the testator had the right of disposition.

One matter more remains for consideration before we pass to the second question. Section II. directs, or rather desires, the executors to sell the stocks and reinvest the proceeds, not required for the payment of legacies under Section III., in California bonds. Section IX. directs that the California bonds so procured shall constitute a part of the trust fund for Sections IX. and X. The bill shows that, owing to the present paucity of California bonds, the direction to sell and reinvest in them is no longer feasible. The next of kin contend that, inasmuch as the stocks cannot be converted according to direction, there is as to them an intestacy. We do not think this conclusion follows. The rule is that where the general intent is clear, it will be carried out at the expense of any particular intent which cannot be carried out consistently with it, the paramount purpose being entitled to prevail. Lessee of Findlay v. Riddle, 3 Binney, 139, 162. Parks v. Parks, 9 Paige, 107; Purnell v. Dudley, 4 Jones Eq. 203; Jesson v. Wright, 2 Bligh, 1, 56. In the case of Thellusson v. Woodford, 4 Ves. Jun. 227, 329, it was said that the court is bound to carry the will into effect if they can see a general intention which is consistent with the rules of law, even if the particular mode pointed out by the testator is illegal. Bartlet v. King, 12 Mass. 537, 553; Inglis v. The Trustees of the Sailors’ Snug Harbor, 3 Peters, 117, 118. Another rule is that when a will .cannot operate to its full extent it shall take effect as far as possible. Thellusson v. Woodford, 4 Ves. Jun. 227, 325. In the case at bar the general intent or par amount purpose is clear and it can be carried out, not precisely in all respects in the manner indicated by the testator, but in a manner which is substantially as good. It seems clear to us therefore, in accordance with the rules before mentioned or with the principles underlying them, that the general or paramount intent must not be permitted to fail merely because it is coupled with a particular or subsidiary intent which is impracticable. Indeed the mere fact that the will is a will ought to be enough to save it from such miscarriage. The testator himself seems to have regarded the conversion of his stocks into California bonds as simply means to an end which might or might not be adopted, for his language is “ I desire,” not “ I direct.” Evidently what he wanted was a safe investment, yielding a fixed income. Moggridge v. Thackwell, 7 Ves. Jun. 36, 68.

The second, third, and fourth questions may be considered together. They are as follows, namely :

'■‘•Second. Ought your oratrix to invest any part of the estate in her hands in bonds of the State of California as directed in Section II. of said last will and testament ?

“ Third. Shall your oratrix sell and dispose of any portion of the estate in her hands, and if so what shall she sell ?

“ Fourth. In what property shall the said estate now and at all times hereafter be and remain invested ? ”

The second question has been virtually answered already. The bill shows that bonds of the State of California are practically unavailable. It is not obligatory on the complainant to invest in them and she ought not to do it. The testator probably preferred bonds to stocks, because good bonds would yield a more uniform income for the legatees for life. We think therefore, if any of the stocks left by the testator are ineligible as an investment, or if they pay only irregular or precarious dividends, that they ought to be sold and the proceeds reinvested in safe bonds, preference being given to state bonds, but not in bonds which command too high a premium because they yield a high rate of interest, since that would be to benefit the life legatees unfairly at the expense of the permanent fund. We think the executrix is entitled to the assistance of the court in determining what changes of investment should be made and into what they should be made, and we will therefore send tbe cause to a master on that point. We cannot undertake to give instructions in regard to future investments or reinvestments; for we know not wbat the future may bring.

Tbe fifth question is this: Are the persons named in Section IX. entitled to receive the income of the estate from and after the decease of the testator ? Section IX. bequeaths a residuum, divided into thirty shares, to trustees, in trust, to pay the interest on them to certain persons during their lives, the number of shares which is to yield the interest to each person being specified. We do not think that under this bequest the life legatees can justly lay claim to anything more than the income, or what is equivalent to the income, of the residuum ; and we can see no good reason why they should not have that amount of income, less its proper part of the taxes, from the death of the testator, under the decision of this court in the case of Bailey, Petitioner, 13 R. I. 543, 560, unless the direction to convert the stocks into California bonds makes a material distinction. In the case of Bailey, Petitioner, we adopted and applied the rule laid down by the Supreme Judicial Court of Massachusetts in Lovering v. Minot, 9 Cush. 151, where it was held that in the case of a bequest of a residuum to trustees, in trust, to pay the income to legatees for life with remainder over, the life legatees are entitled to the actual income from the death. The only question therefore is whether the rule shall be varied by reason of the direction to convert. In the view which we have taken of the will the direction is merely subsidiary to the trust, not constitutive of it. We can discover no good reason why such a direction in such a case should vary the rule, even in regard to the portion of the estate to which it relates. Plain rules ought not to be obscured by unnecessary exceptions. The following cases support us in regarding the direction as immaterial: Hewitt v. Morris, Turn. & R. 241; Angerstien v. Martin, Turn. & R. 232; Douglas v. Congreve, 1 Keen, 410; Mackie v. Mackie, 5 Hare, 70; Wrey v. Smith, 14 Sim. 202; Sargent v. Sargent, 103 Mass. 297; Hilyard’s Estate, 5 W. & Serg. 30. The general rule and the ground of it are well stated by Judge Red-field in his work on Wills. “ Where the bequest is of a residue to one for life, and then over,” he says, “ the corpus of the fund vests, both in the tenant for life and those entitled in remainder, ordina rily, at the decease of the testator ; and the true rule seems to be, that for the first year the tenant for life shall be entitled to all the interest earned by the fund, as invested at the decease of the testator, until it can be permanently invested, which will commonly be at the end of the year.” 2 Redfield on Wills, 2d ed. 472.

A question which has been discussed, as incidental to the fifth question, is: What rate of interest shall be paid permanently to the life legatees, in view of the fact that the trust fund, when set apart, will consist largely of what are termed wasting securities, i. e. of bonds which are above par and will sooner or later run out ? The contention is that the life legatees, if the interest be paid to them at the rate which is stipulated in the bonds, will get under the denomination of interest a part of the capital of the trust fund. In England the chancery courts have attempted to remedy this by requiring the trustees to convert the wasting securities into consols, or to reserve a part of the interest to be added to the principal. Howe v. Earl of Dartmouth, 7 Ves. Jun. 137, 140, 141, 151, 152; Gilson v. Bott, 7 Ves. Jun. 89, 95; Dimes v. Scott, 4 Russ. 195; Brown v. Gellatly, L. R. 2 Ch. App. 751. It does not appear that this practice has ever been resorted to in this country, though occasions for it must often have occurred. We do not think we need resort to it here, for the present at least. The testator meant to have the trust fund, when fully constituted, consist of bonds which he had acquired and left, and of California bonds to be acquired by his executors by a conversion of his stocks. He divides this fund into thirty shares, and directs his trustees to pay the interest on certain specified shares to certain persons. We think there can be no doubt that what he means by the interest is the interest on the bonds, as stipulated in them. The case therefore falls within the rule laid down in Brown v. Gellatly, supra, that, where the trust fund consists of investments which are authorized by the will, the life legatees are entitled to the whole of the actual income ; for we think any bonds or stocks bought or retained in lieu of the California bonds must be regarded in the same light. Indeed the bequest here, though residuary, has mainly in this respect the chai’acter of a specific bequest, the entire produce or usufruct of which belongs, as a matter of right, to the life tenant. Kinmonth v. Brigham, 5 Allen, 270. We think therefore that, for the present, the entire interest should go without abatement to the legatees for life. Whether, after the bonds now acquired or to be acquired have run out, the new investments for the fund ought to be treated in the same way, is a quéstion which it will be time enough to answer when it arises.

The sixth and the thirteenth questions may be considered together, since they both relate chiefly to the one third of the trust residuum in remainder, which is disposed of under Section X. of the will in the following manner, to wit: “ One third (J) of said property to go to such works of religion or benevolence as my executors, after full consideration, shall select.”

The sixth question is: “ In what manner shall the selection of the works of religion or benevolence, to which the one third of the estate in remainder is to be devoted under the tenth section of said last will and testament, be expressed ? And who are the persons who shall make the said selection ? ” The thirteenth question is: “ Have the said corporations, ‘ The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America,’ and ‘ The Board of Home Missions of the Presbyterian Church of the United States of America,’ any interest, vested or contingent, in the estate of the said Alexander G. Mercer ? And if so what interest, and how shall it be exercised ? ” Under the head of these two questions several questions of great interest have been raised and argued with great ability.

There is, however, a preliminary question, namely, whether the two corporations mentioned in the thirteenth question are the “ residuary legatees ” designated in Section XI. of the will under the name of “ The Boards of Domestic Missions in the Protestant Episcopal and Presbyterian Churches in the United States ” ? The bill shows that there are no boards existing under that name, but that there are two corporations organized under the laws of New York and established in the city of New York, having the names mentioned in the thirteenth question, which claim that they are meant by the designation used in Section XI. The two corporations may*be right in their claim, but we do not think enough appears for us to decide so. Section XI. of the will does not specify the locality of the boards there indicated, otherwise than that they are in the United States, and for anything that appears there may be other boards or bodies in the United States which correspond more clearly to the designation used in Section XI. than the two corporations mentioned in the thirteenth question. But assuming that they are the legatees which were intended by Section XI., they are of course entitled to take as there provided. We will for our present purposes so assume.

The contention of the two corporations is that the bequest to such works of religion or benevolence as the executors shall select is void : first, because it is too vague and indefinite to be sustained, and, second, because it cannot be sustained as a'charity, for the reason that it extends to purposes which are not technically charitable. The contention on the other hand is that the bequest is a gift to charitable uses, valid as such notwithstanding its indefiniteness.

We think it will be well for us, before considering these points, to state briefly how far in our opinion the law of charitable uses, as administered in the English chancery courts, is the law of Rhode Island. It was generally supposed at one time, in this country, that the law of charitable uses, as distinguished from the law of ordinary trusts, owed its existence to the statute of 43 Elizabeth, cap. 4. The supposition is now known to have been erroneous. It is understood now that that statute, except in its remedial provisions, was simply declaratory of the preexisting common law. It is also understood that the English chancery courts had, long anterior to the statute, exercised jurisdiction over charitable uses. The differences in the jurisdiction, as it was applied to charitable uses and to ordinary trusts, were owing chiefly to the differences between such uses and such trusts. A trust for private or non charitable purposes cannot be upheld unless the purposes are quite clearly defined. Such a trust is invalid if it violates the rule against perpetuities. A trust for charitable uses is favored in both these respects. Though indefinite it is upheld. If it be designed to be perpetual it is perpetuated. It is a matter of public policy to conserve it from failure. Under this policy a jurisdiction has grown up which has sometimes been condemned as ultra judicial. Thus, if a trust be created for charitable purposes which are too vaguely defined to be executed without further definition, the court itself, if a discretionary power be not lodged elsewhere, will devise a scheme for carrying it into effect. So if a trust be designed for a purpose which is accomplished before it becomes available, or is impracticable, the court will sometimes, though not always, apply it to some other proximate purpose. And again in the case of a trust which has been long in existence, if, by change of circumstances, it ceases to be useful according to its original intent, it will be reapplied either wholly or in part to some new purpose, as nearly like to the old as possible. This is what is known as the cy pres jurisdiction. It is sometimes confounded with the prerogative power which is exercised by the chancellor in England in particular cases under the sign manual of the sovereign as parens patrice. It is not clear that a resort to this last named power is necessary in more than two classes of cases, to wit: when, the bequest is to particular uses charitable in their nature but illegal, and when the bequest is to charity generally without any trust interposed, and no power exists in any person to appoint trustees. Jackson v. Phillips, 14 Allen, 539; Moggridge v. Thackwell, 7 Ves. Jun. 36, 83; but see Felan v. Russell, 4 Irish Equity Reports, 701. We are not aware that any American court has ever claimed the power in so far as it may be regarded as a purely prerogative or parens patrice power.

There is no branch of the law which has been more diligently explored than that which relates to charitable uses and to the exercise of the cy pres power. The result has been to create or confirm the belief that the power, apart from the prerogative power, is a regular chancery power, and that there is no reason why any court, invested with full chancery powers, and untram-melled by precedent or legislation, should not assume and exercise it. The progress of this belief in the Supreme Court of the United States is very instructive. Baptist Association v. Hart's Executors, 4 Wheat. 1; Vidal et al. v. Girard's Executors, 2 How. U. S. 127; Russell v. Allen, 17 Otto, 163. The Supreme Judicial Court of Massachusetts has accepted it with hearty faith, the opinion on the subject in Jackson v. Phillips, 14 Allen, 539, 574, delivered by Mr. Justice Gray, being extremely able and learned. There are other states in which the same view has prevailed. Estate of Hinckley, 58 Cal. 457; Academy of the Visitation v. Clemens, 50 Mo. 167; Erskine v. Whitehead, 84 Ind. 357; Heuser v. Harris, 42 Ill. 425; Heskett v. Murphy, 36 N. J. Eq. 304; Clement v. Hyde, 50 Vt. 716; Bispham’s Principles of Equity, § 130. In this State there is no reported decision in which the doctrine of cy pres has been adopted, though the decision in Brown et al., Trustees, v. Meeting Street Baptist Society, 9 R. I. 177, rests upon principles which lie at the foundation of the docrine. There are, however, unreported cases in which the doctrine has been recognized or applied. The earliest of these of which we have any knowledge is the case of William C. Gardiner et al. v. Kingston Academy, decided in Washington County in 1840. The case involved the employment of a fund derived from a sale, authorized by the General Assembly, of certain lands in the Petaquamscut purchase conveyed in trust in 1695 by Judge Sewall and wife for the education of the youth of that purchase. The case was tried by the court, not by virtue of its general equity power, but under a special statute; but in the course of its opinion the court refers to its power as a court of equity, and declares that if the scheme for the administration of the charity as settled by the opinion shall on experience turn out to be defective, it can be modified on representation made on the chancery side of the court, thus clearly recognizing the existence of a cy pres power in the court. In two other cases quite recently decided the power was not only recognized but applied without question. In one case 1 an ancient charity which had ceased to be useful as originally founded was applied to other purposes; and in the other case 2 a charity which could not be carried out as intended by the founder was settled in a different manner. Jurisdiction in equity is granted to this court by our statute in the broadest terms, Pub. Stat. R. I. cap. 192, § 8; and we see no reason to doubt that the cy pres power is included in the grant, in so far as it is a regular chancery power, unless it must be deemed to have been excluded because it is inconsistent with other legislation or with the settled policy of the State as evinced by other legislation. The general understanding is, that a full grant of equity powers carries all the powers which are exercised hy the English chancery courts acting within their regular jurisdiction.

We are aware that this conclusion is at variance with the conclusion which has been reached by the higher courts of some of the states. White v. Fisk, 22 Conn. 31; Adye v. Smith, 44 Conn. 60; Green v. Allen, 5 Humph. 170; Lepage v. McNamara, 5 Iowa, 124. The courts of these states regard the cy pres power with disfavor, as an excrescence on the law, sapping and perverting it, rather to be cut off than adopted. We think this view is erroneous. It ignores the difference between charitable and other trusts. Charity cannot be confined to the narrow channels,' prescribed for other trusts, without detriment to its inmost character. It flourishes by diffusion. It belies itself when it contracts itself. Uncertainty is its native element. The contributor to a fund for the relief of sufferers by fire or flood or pestilence does not particularize. He trusts his contribution will go by preference where the need is sorest, but he commits it to the discretion of the distributor. We have here the cy pres power in its rudimentary form. It is not a pernicious excrescence, but the natural outgrowth of charitable trusts. If property be given in trust for a general charitable use, the question instantly arises, to what purposes shall it or the income of it be applied, and in what manner shall it be administered. A court of chancery answers the question by devising a scheme of administration. It does not permit the trust to fail because its particular purposes are uncertain, but furthers the general intent of the donor by defining them. We think there can be no doubt that when the court thus gives effect to the intent of the donor, instead of allowing it to be defeated, it fulfils a legitimate" function. If, however, the trust is for some particular purpose which has been accomplished before the trust becomes available, or which is impracticable, there a cy pres application is more questionable; but even then, if it be clear that a general charitable intent has simply taken form in a particular purpose, the court will best carry out the will of the donor by applying his donation to some other purpose which is as nearly as possible akin to the purpose which is named. Or, again, if some charity, founded to endure forever, after long diffusing its bless ings, languishes or becomes inoperative by change of circumstances, can there be a doubt that the court is carrying out the intention of the founder when it revives his charity by reapplying it, wholly or in part, to some new purpose of beneficence of kindred character with the old ? Surely not: yet this is only an exercise of that cy pres power which is so much decried. We know of but few things of earthly institution which more impressively proclaim the lesson of our common humanity than one of these ancient charities, which, descending from a remote past to a remote future, knitting the generations together, dispenses its good gifts continually by the way. It would certainly be a reproach to our civilization if, when such a charity ceases to be efficacious in the particular form which was given to it by its founder, there were no power to make it efficacious in some other form, in which it could still testify of the benevolent purpose in which it had originated. And we cannot think it is any sufficient answer to these considerations for the opponents of the power to tell us, that such a power may exist, but, if it exist, it is not a chancery or judicial power, but belongs rather, by reason of its arbitrary character, to the executive or legislative branch of the government. When we read the cases in which the English chancery courts have exercised the power, and remark with what scrupulous care and consideration, as a rule, they have endeavored to follow out the express or presumed paramount intention of the donors, and at the same time have studied to make it redound to the public good, we are constrained to think that the refusal to recognize the power as a true judicial power is determined mainly by a misconception of it.

The legatees under Section XI. contend that the bequest is invalid because the cy pres power of English chancery, which is necessary to the maintenance of indefinite charitable trusts, has never been adopted here and is inconsistent with the legislation of the State. They contend that in Rhode Island the founder of a charity, to make it good, must himself designate its specific purpose, appoint the trustees to execute it, and select or provide a constituency for selecting the beneficiaries. We think it unnecessary, after what we have said, to inquire further whether the power has been adopted here; for it follows from what we have said that, unless it be inconsistent with other legislation, it must be held to have been conferred in tbe general grant of chancery powers. The question is, then, is there any legislation inconsistent with it ? Tbe earliest statute of the State on the subject was passed in 1721. It is entitled “ An act to redress tbe misemployment of property given to certain charitable uses,” and was manifestly modelled after the statute of 48 Elizabeth, tbe town councils of the several towns being invested with the*same sort of remedial powers as, under the statute of Elizabeth, were to be delegated to commissioners. Its object was to restore charity funds and estates which were being misemployed to their proper employment “ to and for the charitable uses and intents of the donors.” Appeals were allowed, at first, to the governor and council, later to the Supreme Court. The statute as originally passed had reference to only two classes of charitable trusts, namely, “ for the relief of the poor or the bringing up of children to learning; ” but in the Digest of 1844 it was extended to trusts “ for any other specific purpose.” The same Digest also added a new section, to the effect that nothing in the act should be construed to deprive the Supreme Court of original jurisdiction of the matters placed within the jurisdiction of the town councils, thus recognizing the fact that the court had jurisdiction over charitable trusts independently of the statute. The statute remained in force until 1872, when it was repealed.

The argument is that, inasmuch as the statute extended only to trusts “ for the relief of the poor or the bringing up of children to learning or for any other specific purpose,” therefore any trust which is indefinite in its terms is invalid. The logic is clearly inconclusive. The jurisdiction conferred was special. The town councils of the several towns were empowered to redress the mis-employment of charity funds and estates, and to restore them to the uses for which they were given. Evidently they could not perform this function, if the uses were indefinite, without first defining them, or, in other words, without exercising the cy pres power, which was too delicate a power to be delegated to them. Naturally, therefore, the jurisdiction was limited to trusts for the two purposes mentioned, “ or for any other specific purpose.” Indeed, the extension of the jurisdiction in 1844 to trusts “for any other specific purpose” was of doubtful constitutionality. We think, therefore, that the inference that only such trusts are valid as were within tbe purview of tbe statute is not legitimate. Tbe conclusion is too broad for tbe premises. The same sort of logic would lead to tbe conclusion that prior to 1844 tbe only trusts which were valid were trusts “for the relief of the poor or for the bringing up of children to learning.” This point was taken in Potter v. Thornton, 7 R. I. 252, 263, but it met with no favor from the court. It is incredible that the statute would have been permitted to drop entirely out of the statute books if it had been supposed to have the significance which is imputed to it.

The only other legislative provisions which are entitled to consideration here are Pub. Laws R. I. cap. 372, of March, 1861, and Pub. Laws R. I. cap. 625, of March, 1866. The earlier chapter provides for the appointment of trustees, whenever any trust created for any purpose, mentioned in the statute which we have just been considering, should become vacant, or cease to be administered, on application of any interested person. We cannot infer from it that only specific trusts are valid. Chapter 625 provides that, “in case the bill of complaint in any suit regularly instituted for the appointment of a trustee or trustees, or a new trustee or new trustees, for any charity or' charitable or public purpose, shall allege substantially that the purposes expressed by the donor in and by the instrument creating the trust cannot be effectuated, the prayer of the bill may include, in addition to the other relief asked for, a prayer for a cy pres application of the trust property,” and that the court may apply the property cy pres accordingly. The statute does not purport to confer the cy pres power, to be exercised by the court only under particular circumstances, but recognizes its anterior existence in the court, and provides that a bill in equity may be brought for the double purpose of procuring the appointment of new trustees and the cy pres application of the trust property. The statute is clearly against the proposition maintained by the legatees under Section XI., that the court has no cy pres power, and that indefinite charitable trusts are invalid in Rhode Island. Our conclusion is that the proposition is untenable.

The counsel, analyzing his first objection into separate points, contends that the bequest is void “because there is an absolute failure to specify: first, the trustees of the fund; second, the classes of objects and purposes of application of the fund; third, the beneficiaries of the fund ; and fourth, any method of selecting either trustees or beneficiaries.” We do not think the first point is well founded in matter of fact. By Section IX. the residuum is to be deposited with the Pennsylvania Company for Insurance and Granting Annuities, and, being divided into thirty shares, is “ to be held and managed by said company in trust to pay the interest on these shares ” to certain persons for life. By Section X. the company is required to reinvest any interest which ceases to be payable under Section IX., and to accumulate it until the death of the last surviving life legatee, whereupon the entire fund is disposed of in equal thirds which are “ to be paid ” or “ to go ” as there bequeathed, the company being clearly charged by implication with the duty of paying them and causing them to go as bequeathed. The only admissible construction is that the company was intended to be made, and, subject to the power vested in the executors by Section XI. has been made, the trustee of the fund. As trustee it is to hold the fund at first for purposes which are clearly defined, and afterwards to cause the one third which is here in dispute “ to go to such purposes of religion or benevolence as my executors, after full consideration, shall select.” The other points taken amount simply to this, that the purposes of the bequest and the beneficiaries are not pointed out, and no means are provided by which they can be pointed out. This objection is certainly untenable if the executors qualify and exercise the power which has been committed to them, or if the executrix, who has qualified, can exercise it. Going v. Emery, 16 Pick. 107; Brown v. Kelsey, 2 Cush. 243; Moore's Heirs v. Moore's Devisees, 4 Dana, 354; Wilkinson v. Lindgren, L. R. 5 Ch. App. 570; Horde v. The Earl of Suffolk, 2 Myl. & K. 59.

We now pass to the second ground on which the bequest is impugned, namely, that the bequest is not in terms limited to charitable uses, and is therefore void. It is well settled that if the property, bequeathed by so indefinite a bequest, can consistently with the will be applied to other than charitable uses, the bequest is invalid. In the case at bar the objection is, that the bequest is to such works of religion or benevolence as the executors may select, and that, consistently with this bequest, the entire fund may be applied to works of benevolence which are not works of charity, for the reason that the word “ benevolence ” is a word of larger meaning than tbe word “ charity,” as it is understood in the law of charitable uses, and therefore, while it includes charitable purposes, may also include other purposes of mere personal goodwill which are not charitable. We think it is well established by the clear current of authority that, if the word “benevolence” be used in its larger meaning, the bequest cannot be sustained; the fact that the bequest is in the alternative, “ to works of religion or benevolence,” being immaterial, inasmuch as, the bequest being in the alternative, it is in the power of the executors to apply the property wholly to works of benevolence, and, among such works, to works which are not technically charitable. Morice v. The Bishop of Durham, 9 Ves. Jun. 399, 405; James v. Allen, 3 Meriv. 17; Mitford v. Reynolds, 1 Ph. 185, 190; Ellis v. Selby, 1 Myl. & Cr. 286; Williams v. Williams, 5 L. J. N. S. Eq. 84; Nash v. Morley, 5 Beav. 177; Kendall v. Granger, 5 Beav. 300; In re Jarman’s Estate, L. R. 8 Ch. Div. 584; Boyle on Charities, 281 sq. It does not follow, however, that the bequest is invalid because the word “ benevolence ” is used; for the question is a question not of language but of meaning, and it may appear by the context of the will, or by the will taken as a whole, that, though the word benevolence was used, the only thing which was intended to be denoted by it was charity. If it be clear that this was the meaning, the will must be executed in accordance with it. Suter v. Hilliard, 132 Mass. 412; Rotch v. Emerson, 105 Mass. 431; Saltonstall v. Sanders, 11 Allen, 446, 468; Morice v. The Bishop of Durham, 10 Ves. Jun. 522, 542, 543; Whicker v. Hume, 7 H. L. 124; De Camp v. Dobbins, 29 N. J. Eq. 36; Boyle on Charities, 286. The question then is : Was the word used in its larger meaning or in a narrower meaning as synonymous with charity ?

We have seen that the testator, by the first section of his will, appoints the executors and expresses a hope that they will be content with a thousand dollars each for their services, giving as a reason that he regards the execution of the will “ as ..a work of charity as well as of friendship.” There is reason to think that these two words, “ friendship ” and “ charity,” are the two keys, so to speak, wbieb fully unlock tbe meaning of every part of tbe will. Tbe will is a will of friendship in so far as it contains bequests and directions in favor of particular persons ; for tbe rest, it is a will and testament of charity. This character shows itself with special emphasis in Section XI. The testator there designates certain gifts as public gifts, evidently meaning the gifts not given to particular persons. He there appoints the boards of domestic missions to take any of his preceding gifts which may fail, “ specially my gifts to public purposes.” Again he speaks of this class of gifts as '■'•public benefactions.'’'’ He commends the boards of missions to his executors “ as a proper object for the whole or a part of the third of my property which I have left to their appropriation for religious or benevolent purposes.” This recommendation shows very clearly that what he meant was not any exhibition on the part of his executors of their mere personal favor or good will, but works for the general good of men without regard to persons. “ In conclusion,” he says, in words which throw a flood of light on his intention, and meaning, “ It is my earnest desire that by the wisdom, honor, and energy of my executors, and of the persons intrusted with the several trusts aforesaid, my property may go in the most prudent, economical, and effectual manner to the permanent good benefit of men in case of the bequests to public objects, and in case of the bequests to persons to their comfort and happiness.”

It is clear from these expressions that the works of benevolence intended by the testator were works for the public benefit. The counsel for the legatees under Section XI. contends that bequests for public purposes are not necessarily gifts to charitable uses. We think, however, that a gift for purposes which are both public and benevolent, particularly when it appears, as here it does appear, that the gift is inspired, not by any partisan or political motive, but by the simple love of men as men, and by a desire for their permanent good, must be regarded as a charitable gift. Ould v. Washington Hospital for Foundlings, 5 Otto, 303. Lord Hardwicke’s definition of a charity was : “ A gift to the general public use, which extends to the poor as well as to the rich.” Jones v. Williams, Amb. 651. In Attorney General v. Heelis, 2 Sim. & Stu. 67, 76, Sir John Leach said he was of the opinion “ that funds supplied from the gift of tbe crown, or from tbe gift of tbe legislature, or from private gift, for any legal, public, or general purpose, are charitable funds to be administered by courts of equity.” See, also, Nightingale v. Goulburn, 5 Hare, 484, 486; Dolan v. Macdermot, L. R. 5 Eq. 60; also L. R. 3 Ch. App. 676; Attorney General v. The Earl of Lonsdale, 1 Sim. 105; Attorney General v. Webster, L. R. 20 Eq. 483; Drury v. Inhabitants of Natick, 10 Allen, 169; Townley v. Bedwell, 6 Ves. Jun. 194. If tbe gift be charitable it is good however general. Morice v. The Bishop of Durham, 9 Ves. Jun. 405; Horde v. The Earl of Suffolk, 2 Myl. & K. 57; Waldo v. Caley, 16 Ves. Jun. 206; Perry on Trusts, § 705 and cases cited; Bispham’s Principles of Equity, § 119. See, also, Pub. Stat. R. I. cap. 178, § 6. Our conclusion is that the bequest is valid.

Other questions under the sixth question remain for consideration. Two of them arise from the fact that two of the persons named as executors have not qualified as such. The first is whether the persons who have not qualified are entitled, without qualifying, to participate with the executrix in exercising the power of selection given to the executors in regard to the one third of the residuum which is to go to works of religion or benevolence. We think they are not. The power is given by the testator to “ his executors,” not there named, and the persons nominated are not executors until they qualify as such. Attorney General v. Fletcher, 5 L. J. N. S. Eq. 75; Keates v. Burton, 14 Ves. Jun. 433. The second question is whether the executrix who has qualified can exercise the power. The question is not free from difficulty, but the more recent cases maintain the doctrine that where a discretionary power is given to executors, without naming them, it will, even when it relates to the realty, unless there be something else to show an intent to give it to them as individuals, vest in the qualifying or surviving executor. Brassey v. Chalmers, 16 Beav. 223; also 4 De G., M. & G. 528; Houell v. Barnes, Cro. Car. 382; Weimer v. Fath, 43 N. J. Law, 1; Jennings v. Teague, 14 S. Car. 229; Chandler v. Rider, 102 Mass. 268; Gould v. Mather, 104 Mass. 283. In Attorney General v. Glegg, Amb. 584, the testator left bequests for fifty two persons to be selected by his executors. Two of the executors, there were three, died before the charity was administered. Lord Hardwicke decided that, as the power related to personal estate, it was a power coupled with an interest, and consequently went to the survivor. We do not see how the case is distinguishable from the case at bar ; for the power here relates to personal estate, and when executed will pro tanto control the disposition of it. Moreover our statute provides that, where there are several executors named in a will some of whom do not accept the trust, those who accept “ shall have the same power and authority as is given by such will to the whole of them, to every intent and purpose whatever.” Pub. Stat. R. I. cap. 184, § 21. The language is very broad and peremptory, and we think it must control, at least unless the will itself clearly shows a different intent. The provision was in force when the will was made. Rev. Stat. R. I. cap. 156, § 18. And see Weimer v. Fath, 43 N. J. Law, 1, 9; Brown v. Armistead, 6 Rand. 594; Taylor v. Morris, 1 N. Y. 341.

The next question is in what manner shall the selection, made in pursuance of the power, be expressed ? We think this is a case in which the executrix, having come to the court for instruction, must exercise the power under the supervision of the court, the more especially as the fund, if it be turned over to the Pennsylvania Company, will as soon as it is turned over pass out of the jurisdiction of the court. In such circumstances we are clear that the fund ought not to be turned over until the purposes to which it is to be eventually applied are definitely determined, so that the company, when it receives the fund, may know with certainty the obligations which it assumes as trustee both under the will and under the purposes so determined, which being declared will become in legal effect a part of the will, binding' the company as such. We will therefore let the cause go to a master for the executrix to submit to him a scheme for the distribution of the one third of the residuum which is subject to the power, to be settled before him, subject to the approval of the court. Boyle on Charities, 213-220; Attorney General v. Glegg, Amb. 584, note 3; Paice v. The Archbishop of Canterbury, 14 Ves. Jun. 364, 372.

The seventh, eighth, ninth, tenth, and eleventh questions are questions of identity. Section III. of the will gives “ to the So ciety for the Aged and Infirm (women or men) in Newport $1,000.” The bill shows that there is no society of that name but that there is a corporation incorporated as the “ Association for the Aid of the Aged,” established in Newport for the relief of poor, aged, and infirm persons, now by a recent change of name called “ The Townsend Aid for the Aged.” The rule is that a misnomer of the legatee or devisee is immaterial, if the person intended can be identified by the description in the will. 1 Jar-man on Wills, 5th Amer. ed. 760, note; Button, Executor, v. American Tract Society, 23 Yt. 336; Straw v. Societies, 67 Me. 493 ; Trustees v. Peaslee, 15 N. H. 317; Newell’s Appeal, 24 Pa. St. 197; Maund’s Adm’r v. McPhail, 10 Leigh, 199. The legacy should go to “ The Townsend Aid for the Aged.” 1

Section X. gives one third of the residuum, after the decease of the legatees under Section IX., to “ The Managers or Directors of the Pennsylvania Hospital on Pine Street, in Philadelphia, and to the Managers or Directors of the Massachusetts General Hospital,” &c. The bill shows that there are no such persons as the “ Managers or Directors of the Pennsylvania Hospital on Pine Street, in Philadelphia,” nor any corporation known by that name, but that there is a hospital on Pine Street, in the city of Philadelphia, in the State of Pennsylvania, which is controlled by “ The Contributors to the Pennsylvania Hospital,” which is the corporate name of a corporation established under the laws of said State of Pennsylvania, which said corporation claims that it is meant by the testator.” We think “ The Contributors to the Pennyslvania Hospital ” are entitled to the legacy. Winslow v. Cummings, 3 Cush. 358. Section X. directs that one third of the residuum, last mentioned, “ be paid to the President of Harvard University, in Cambridge, Mass., to the President of Yale College in Connecticut, to the Secretary of the Smithsonian Institute at Washington, D. C., and to Alexander Mercer Biddle, Alexander Mercer King, and Philip Mercer Rhinelander, should they or either of them then,” i. e. at the death of the last surviving legatee under Section IX., “ be alive, to be used by them for the establishment of scholarships or foundations in such colleges as they may select, for the benefit of such poor students as have passed through some of the public schools with the best reputation for character and ability.” The bill shows, we think, that there are several misnomers in this bequest: to wit, that “ Harvard University ” is a misnomer for “ The President and Fellows of Harvard College; ” “ Yale College ” a misnomer for “ The President and Fellows of Yale College;” and “The Smithsonian Institute at Washington, D. C.,” a misnomer for “ The Smithsonian Institution ” of that city. We think, therefore, that one third of said residuum should, when the time comes for paying it, be paid to the president of the corporation in Cambridge, Massachusetts, denominated “ The President and Fellows of Harvard College ;” to the president of the corporation in Connecticut, known as “ The President and Fellows of Yale College; ” and to the secretary of the corporation at Washington, D. C., known as the “ Smithsonian Institution,” and to such of the three other persons named as are then alive, if either of them be then alive. For we are clearly of the opinion, and this answers the twelfth question, that the bequest is to the presidents and secretary of the corporations indicated, who hold office as such when the bequest shall be paid, and that the words, “Should they or either of them then be alive,” apply only to the three persons designated by their names. Of course if these three persons should happen to die before the last surviving legatee under Section IX., the bequest will still remain to be paid to said presidents and secretary.

Samuel P. Honey, for complainant and for the life beneficiaries. Francis B. Pechham, for the testator’s next of kin and for the respondents Rhinelander and Townsend. Christopher M. Lee, for the Townsend Aid for the Aged. Julien T. Davies, for the Foreign and Domestic Missionary Society. John F. Parsons, for the Presbyterian Board of Home Missions. John Q. Cray $ William Caleb Loring, for the other respondents.

1 St. Michael’s Church v. Willard Sayles, Attorney General. Bristol County, May, 1882.

2 Attorney General v. City Council of Newport. Newport County, March Term, 1882.

1 The unreported case of the Providence Children’s Friend Society v. Howard, decided by the Supreme Court in Providence County at the March Term, 1840, is in point. The testatrix there gave the residue of her personal estate “to the charitable female society established on the west side of the river in Providence, for the education of orphan children.” The court decided that “The Providence Children’s Friend Society,” which was a charitable corporation, incorporated for the support and education of indigent children of both sexes, which prosecuted its work on the west side of the river, was entitled to the legacy.