Parker, C. J.
We are of opinion that the deposition of Thomas Bailey must be suppressed. He is a party to the suit, and cannot be examined except upon leave granted by the court, or by a judge in vacation, for that purpose. If it appears that a party has no interest in the subject matter respecting which his testimony is required, leave is granted, as of course, subject to farther exceptions. The rule, and the reason of it, are thus stated in Gresley’s Equity Evidence 338 : “ As a suit in equity often contains many issues, and the general rule compels all who are interested in any way to be made parties, either plaintiffs or defendants, it often happens that a person who could furnish material evidence [326]*326respecting one point in dispute, is precluded from doing so by being made a party, in consequence of some interest in another point. Others, who might be witnesses, are often made parties for form’s sake, as a mere trustee. Leave is, therefore, frequently given in equity, for a party to be examined, on motion, suggesting that he is not interested, and saving all just exceptions. The interest spoken of in the motion is, interest in the matter to be examined into, not interest generally in the cause.” See, also, 1 Greenl. Ev. 361. “ Defendants who are trustees, or who have otherwise been made parties for mere form’s sake, and against whom no decree is prayed, are always examined if necessary.” Gresley’s Eq. Ev. 339.
But it has been held that an executor in trust is not capable of being examined for his cestui que trust. The reasons given have been that he is answerable for devastavits, is liable to be sued by creditors and to answer in costs, and has something more in him than the mere legal right as a bare trustee. Gresley 340; 3 P. Wms. 181, Croft vs. Pyke; 3 Atk. 96, Perrot vs. Perrot. Unless we should be justified in departing from the rule thus laid down, it seems that a motion for the examination of the defendant Bailey must have been overruled, had it been made.
Upon the evidence before us, we are of opinion that the plaintiffs are not entitled to the benefit of the bequest in the will of Amos Bailey. They cannot be regarded as legatees. There is no corporation or party which could establish a legal title to the bequest. “ The westerly part of Hopkinton” is the westerly part of a territorial corporation; but we are not aware of any rule by which that westerly part can be designated or divided from the rest, territorially or otherwise, so that we can say, here stands a party legally entitled to the possession of this fund. It has been held that the term “ northerly” in a grant, where there is no object mentioned to direct the inclination of the course towards the east or [327]*327west, is construed to mean due north. 1 Johns. R. 156, Brandt vs. Ogden; but the rule will render us little aid here, for there is no point to start from. The easterly part of Hopkinton is not included, and the question, “ where is the line to be drawn north and south which is to sever the westerly part of Hopkinton from the easterly part,” is one of difficult solution.
It is sufficient, however, in this case, if the plaintiffs can establish an equitable title to the legacy ; and extrinsic evidence of the existing state of facts may be admitted, for the purpose of ascertaining who was intended as the object of the testator’s bounty, as well as to show the subject of disposition, or the quantity of interest given by a will. “ A court may inquire into every material fact, relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.” 1 Greenl. Ev. 287, note; Wigram on the admission of Extrinsic Evidence 51.
But the plaintiffs can derive no aid from this principle. There is some evidence to show what was known in general terms as “ the westerly part of Hopkintonbut the plaintiffs do not come within the specification, nor do they appear to have been in any way within the contemplation of the testator, except as the individuals composing the Second Congregational Society may be a component part of the mass of inhabitants residing in the westerly part of the town. The village which now exists in the part of the town where the meeting-house of the plaintiffs is situated, has grown up since the will was made, into a size which it did not even promise at that time; and the religious society there existing, and appearing as plaintiffs in this case, has been formed entirely since that time, and even since the testator’s death.
[328]*328Whether the plaintiffs might not have established a claim to the bequest, although they do not comprise all that has been, in a loose manner, designated as “the westerly part of Hopkinton,” and although they have acquired their existence as a society since the execution of the will, upon the ground that they were within the contemplation of the testator, if no other facts appeared than those already adverted to, we need not enquire. There is other evidence in the case which, we think, conclusively shows that the testator had no reference to them, and that they do not substantially appear to be the object of the testator’s bounty. The evidence shows that there had been, for the term of twenty-five years or more, a meeting-house within the westerly part of Hopkinton, situated nearer the territorial centre of that westerly part than the plaintiffs’ house, near which the testator resided, and at which he had been accustomed to worship. There had also been originally a controversy in the town respecting the location of the meeting-house, which seems to have ended in the erection of two, one in the east village and the other near the residence of the testator. The neighborhood where the last named meeting-house stood, according to the testimony of several witnesses, “ has been known by the name of the westerly part of Hopkinton.” As often happens in such cases of controversy, it seems that the burden of supporting a minister and providing for public worship at this place, was too great for those who lived in that section, and the house was taken down in the life time of the testator, one witness says in 1831, which was the year in which the will was made.
As the case appears before us upon these facts, we cannot doubt that the testator was desirous of encouraging the reestablishment of public worship at or near that place; and that the bequest to “ the westerly part of Hopkinton” was designed to aid in the accomplishment of that object. And if the inhabitants of that part of the town had reestablished public worship at that place, in the manner provided in the [329]*329clause in the will, there would probably have been no question respecting their right to the legacy; or if there had been, the fact that, they had no corporate existence as “ the westerly part of Biopkinton,” and tio well defined territorial limits answering to such a designation, might have interposed no obstacle to a decree in their favor, under our equitable jurisdiction in cases of trusts.
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Parker, C. J.
We are of opinion that the deposition of Thomas Bailey must be suppressed. He is a party to the suit, and cannot be examined except upon leave granted by the court, or by a judge in vacation, for that purpose. If it appears that a party has no interest in the subject matter respecting which his testimony is required, leave is granted, as of course, subject to farther exceptions. The rule, and the reason of it, are thus stated in Gresley’s Equity Evidence 338 : “ As a suit in equity often contains many issues, and the general rule compels all who are interested in any way to be made parties, either plaintiffs or defendants, it often happens that a person who could furnish material evidence [326]*326respecting one point in dispute, is precluded from doing so by being made a party, in consequence of some interest in another point. Others, who might be witnesses, are often made parties for form’s sake, as a mere trustee. Leave is, therefore, frequently given in equity, for a party to be examined, on motion, suggesting that he is not interested, and saving all just exceptions. The interest spoken of in the motion is, interest in the matter to be examined into, not interest generally in the cause.” See, also, 1 Greenl. Ev. 361. “ Defendants who are trustees, or who have otherwise been made parties for mere form’s sake, and against whom no decree is prayed, are always examined if necessary.” Gresley’s Eq. Ev. 339.
But it has been held that an executor in trust is not capable of being examined for his cestui que trust. The reasons given have been that he is answerable for devastavits, is liable to be sued by creditors and to answer in costs, and has something more in him than the mere legal right as a bare trustee. Gresley 340; 3 P. Wms. 181, Croft vs. Pyke; 3 Atk. 96, Perrot vs. Perrot. Unless we should be justified in departing from the rule thus laid down, it seems that a motion for the examination of the defendant Bailey must have been overruled, had it been made.
Upon the evidence before us, we are of opinion that the plaintiffs are not entitled to the benefit of the bequest in the will of Amos Bailey. They cannot be regarded as legatees. There is no corporation or party which could establish a legal title to the bequest. “ The westerly part of Hopkinton” is the westerly part of a territorial corporation; but we are not aware of any rule by which that westerly part can be designated or divided from the rest, territorially or otherwise, so that we can say, here stands a party legally entitled to the possession of this fund. It has been held that the term “ northerly” in a grant, where there is no object mentioned to direct the inclination of the course towards the east or [327]*327west, is construed to mean due north. 1 Johns. R. 156, Brandt vs. Ogden; but the rule will render us little aid here, for there is no point to start from. The easterly part of Hopkinton is not included, and the question, “ where is the line to be drawn north and south which is to sever the westerly part of Hopkinton from the easterly part,” is one of difficult solution.
It is sufficient, however, in this case, if the plaintiffs can establish an equitable title to the legacy ; and extrinsic evidence of the existing state of facts may be admitted, for the purpose of ascertaining who was intended as the object of the testator’s bounty, as well as to show the subject of disposition, or the quantity of interest given by a will. “ A court may inquire into every material fact, relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will.” 1 Greenl. Ev. 287, note; Wigram on the admission of Extrinsic Evidence 51.
But the plaintiffs can derive no aid from this principle. There is some evidence to show what was known in general terms as “ the westerly part of Hopkintonbut the plaintiffs do not come within the specification, nor do they appear to have been in any way within the contemplation of the testator, except as the individuals composing the Second Congregational Society may be a component part of the mass of inhabitants residing in the westerly part of the town. The village which now exists in the part of the town where the meeting-house of the plaintiffs is situated, has grown up since the will was made, into a size which it did not even promise at that time; and the religious society there existing, and appearing as plaintiffs in this case, has been formed entirely since that time, and even since the testator’s death.
[328]*328Whether the plaintiffs might not have established a claim to the bequest, although they do not comprise all that has been, in a loose manner, designated as “the westerly part of Hopkinton,” and although they have acquired their existence as a society since the execution of the will, upon the ground that they were within the contemplation of the testator, if no other facts appeared than those already adverted to, we need not enquire. There is other evidence in the case which, we think, conclusively shows that the testator had no reference to them, and that they do not substantially appear to be the object of the testator’s bounty. The evidence shows that there had been, for the term of twenty-five years or more, a meeting-house within the westerly part of Hopkinton, situated nearer the territorial centre of that westerly part than the plaintiffs’ house, near which the testator resided, and at which he had been accustomed to worship. There had also been originally a controversy in the town respecting the location of the meeting-house, which seems to have ended in the erection of two, one in the east village and the other near the residence of the testator. The neighborhood where the last named meeting-house stood, according to the testimony of several witnesses, “ has been known by the name of the westerly part of Hopkinton.” As often happens in such cases of controversy, it seems that the burden of supporting a minister and providing for public worship at this place, was too great for those who lived in that section, and the house was taken down in the life time of the testator, one witness says in 1831, which was the year in which the will was made.
As the case appears before us upon these facts, we cannot doubt that the testator was desirous of encouraging the reestablishment of public worship at or near that place; and that the bequest to “ the westerly part of Hopkinton” was designed to aid in the accomplishment of that object. And if the inhabitants of that part of the town had reestablished public worship at that place, in the manner provided in the [329]*329clause in the will, there would probably have been no question respecting their right to the legacy; or if there had been, the fact that, they had no corporate existence as “ the westerly part of Biopkinton,” and tio well defined territorial limits answering to such a designation, might have interposed no obstacle to a decree in their favor, under our equitable jurisdiction in cases of trusts. But if, instead of settling a minister in the ordinary mode, whose duty it would be to reside among them and perform all tSie customary parochial duties, they had merely engaged one who resided in another town, to preach on Sundays, provided they could obtain possession of this legacy, we are of opinion that it would not have been a compliance with the condition of the bequest, and they must have failed in an attempt to recover the income of the fund, for chat reason. And this is all the plaintiffs have done to bring themselves within the terms of it.
They have, perhaps, gone through tire customary forms for the. settlement of a minister, agreeably to the usages of the Congregational denomination. There has been the organization of a society, the letters missive, the convening of a council, the gathering of a church, the call of a minister by the church and society, the acceptance, the due examination of the candidate, the evidence of Ins qualifications satisfactory to the council, and the installation in due and solemn form of one who had before been ordained as a minister of the gospel. But behind all this is the evidence that the incumbent was to receive but f20Q the year, and that he not only resided in another town, where he was pursuing a secular business, (connected it is true with religious purposes,) and that he did not change his residence; but the inference is apparent that it was probably well understood that this foreign residence and business were to continue; and, if the society failed of obtaining the income of Mr. Bailey’s legacy, this settlement was to dwindle down into an engagement for occasional preaching. However laudable all this may have been, if the means of the society were [330]*330inadequate to the support of a minister, it does not seem to us to be such a settlement as the testator contemplated. We do not say that the settlement must have been irrespective of the provision that the testator had made, or that the minister should have been required to reside within his parish all the time ; but we are of opinion that a settlement, to be within the provision of the testator’s will, should have been something more than the ordinary formalities of ordination or installation, superadded to an engagement for preaching upon Sunday and other stated days, without any provision for residence or other parochial duties.
But the plaintiffs contend that the court have power to carry the gift into effect, although a literal compliance is impracticable. Sitting as a court of equity, by virtue of the general jurisdiction we have over gifts to charitable uses, if the charitable intention of the testator could not be carried into effect, we might perhaps apply the doctrine technically called cy pres, and, to prevent a failure of the charity, direct the income of the fund to be applied to the use of some other congregation in Hopkinton than that which the testator intended. But, in that case, it might deserve inquiry whether the objections to the settlement of the minister, already referred to, would not exclude the plaintiffs, and compel us to direct an inquiry whether there was not some other congregation in the town, which, having a minister ready to perform all parochial services which might be required by the inhabitants of the westerly part, would be better entitled to come in to the succession as next of kin. But happily the testator has relieved us from all difficulty on this point. “ If they do not settle a Congregational minister in the westerly part of Hopkinton within three years” after his decease, he directs the interest of the whole to go to the First Congregational Society. This court have no jurisdiction to devise a new scheme for a charity, so long as that devised by the donor may take effect. 2 Story’s Eq., <§> 1176. Bill dismissed.