In the absence of argument we see no suffi- | school in fact, and the supposed corporation in cient reason for directing a scheme to be the mind of the testator were neither of them framed. free or public schools, as in Boxford Religious Society v. Harriman, 125 Mass. 321, and Morville v. Fowle, 144 Mass. 109, 4 New Eng. Rep. 39 (see McIntire v. Zanesville, 17 Ohio St. 352), but were both private pecuniary enterprises, to the support of which the trustees, that is to say the party interested, had power to apply the whole income. Such an enterprise is not a public charity even if indirectly it In the first place it does not appear that the will creates a public charity. It does not purport to found an institution as in Tainter v. Clark, 5 Allen, 66; Atty-Gen. v. Lonsdale, 1 Sim. 105; Russell v. Allen, 107 U. S. 163 [27 L. ed. 397]; but to give the fund to one already in existence and having a determinate character. It would seem that Mr. Curtis' medical acter of the object sought to be attained, the purpose to which the gift is to be applied, not the motive of the donor. Fire Ins. Patrol v. Boyd, 120 Pa. 624, 1 L. R. A. 417, note. A corporation which in the performance of its corporate duties is acting, without gain or profit, in aid and ease of the municipal government in the preservation of life and property at fires, whether as a volunteer or not, is a public charity and not subject to the doctrine of respondeat superior. Ibid. A devise to a lodge of Odd Fellows "for the benefit of the widows and orphans" is sufficiently definite to be sustained as a charity. Heiskell v. Chickasaw Lodge, 4 L. R. A. 699; Dickson v. Montgomery, 1 Swan, 366; Green v. Allen, 5 Humph. 204; Franklin v. Armfield, 2 Sneed, 347; Frierson v. General Presby. Assembly, 7 Heisk. 694; State v. Smith, 16 Lea, 664; Gass v. Ross, 3 Sneed, 213. If a gift is made to one charity in the first instance, and then over to another charity upon the happening of a contingency which may or may not take place within the limit of the rule, the limitation over to the second charity is good. Christ's Hospital v. Grainger, 16 Sim. 83, 1 Macn. & G. 460, 1 Hall & T. 533; McDonogh v. Murdoch, 56 U. S. 15 How. 367, 412, 415 (14 L. ed. 732); Russell v. Allen, 107 U. S. 163 (27 L. ed. 397): Storrs Agricultural School v. Whitney, 3 New Eng. Rep. 573, 54 Conn. 347; Odell v. Odell, 10 Allen, 7. Public charitable use not presumed. | ligious uses alone. Old South Society v. Crocker, 119 Mass. 23. A devise to persons named, their heirs and assigns forever, and to the survivor of them and his heirs forever, in trust to manage and appropriate such part of the principal and interest as they may deem best in aid and support of my children and their descendants who may be destitute, is not a public charity and is invalid. Kent v. Dunham, 2 New Eng. Rep. 655,.142 Mass. 216. A cemetery corporation which voluntarily uses its funds for objects akin to the purposes of its organization, is not a public charity. Donnelly v. Boston Catholic Cemetery Asso. 5 New Eng. Rep. 741, 146 Mass. 163. Gifts to trustees to be applied "for benevolent purposes" at their discretion, or "to such benevolent purposes" as they shall agree upon, do not create a public charity (Chamberlain v. Stearns, 111 Mass. 267; James v. Allen, 3 Meriv. 17; Norris v. Thomson, 19 N. J. Eq. 307; Thomson v. Norris, 20 N. J. Eq. 489); as a bequest to my executors and the survivor of them, or their successors, to be by them distributed to such persons, societies, or institutions as they may consider most deserving. Nichols v. Allen, 130 Mass. 211. A peculiar bequest for the establishment of a dispensary was held not sustainable as a charitable use. See Beekman v. People, 27 Barb. 260. A bequest for the distribution of books, in which the author describes the system by which the land owners of the country hold the title to their lands as robbery, is not such a charity as the courts will enforce. See Hutchins v. George, 12 Cent. Rep. 252, 44 N. J. Eq. 124. A bequest to an infidel society hereafter to be incorporated is void, not being for a charitable use. See Zeisweiss v. James, 63 Pa. 465. A mutual aid society is not a charity. See Babb v. Reed, 5 Rawle, 151; Swift v. Easton Beneficial Soc. 73 Pa. 362. Nor are Friendly Societies." See Re Clark's Trust, L. R. 1 Ch. Div. 497; Pease v. Pattinson, L. R. 32 Ch. Div. 154. This court will not presume a public charitable use where none was declared, although the bequest was to the trustees of a religious society. Cited in 2 Pom. Eq. Jur. 585. See Gloucester v. Wood, 3 Hare, 131, 136-148; Lewis v. Allenby, L. R. 10 Eq. 668; Wilkinson v. Barber, L. R. 14 Eq. 96; Gillam v. Taylor, L. R. 16 Eq. 581; Atty-Gen. v. Eastlake, 11 Hare, 205, 215; Pocock v. Atty-Gen. L. R. 3 Ch. Div. 342; Re Jarman's Estate, L. R. 8 Ch. Div. 584; Re Williams, L. R. 5 Ch. Div. 735; Re Birkett, L. R. 9 Ch. Div. 576; Re Hedgman, L. R. 8 Ch. Div. 156; Mills v. Farmer, 1 Meriv. 55; Moggridge v. Thackwell, 7 Ves. Jr. 36; Saltonstall v. Sanders, 11 Allen, 446; Jackson v. Phillips, 14 Allen, 539; American Academy of A. The bequest for the erection of monuments to & S. v. Harvard College, 12 Gray, 582; Vidal v. Gi- the memory of certain persons is valid; but the berard, 43 U. S. 2 How. 127 (11 L. ed. 206); Cresson's Ap-quest for assisting to raise monuments to the mempeal, 30 Pa. 437; Price v. Maxwell, 28 Pa. 23, 35; Franklin v. Armfield, 2 Sneed (Tenn.) 305; Russell v. Allen, 5 Dill. 235; Boxford Sec. Relig. Society v. Harriman, 125 Mass. 321; Ould v. Washington Hospital, 95 U. S. 303 (24 L. ed. 450); Goodell v. Union Asso. 29 N. J. Eq. 32; De Camp v. Dobbins, 29 N. J. Eq. 36; Cory Univ. Society v. Beatty, 28 N. J. Eq. 570; Stevens v. Shippen, 28 N. J. Eq. 487; Clement v. Hyde, 50 Vt. 716; Craig v. Secrist, 54 Ind. 419; Mason v. Methodist Epis. Church, 27 N. J. Eq. 47; Cruse v. Axtell, 50 Ind. 49; Old South Society v. Crocker, 119 Mass. 1; Zeisweiss v. James, 63 Pa. 465. What are not public charities. ory of all other officers and soldiers from the State who distinguished themselves is void on account of the impossibilty of its performance. Gilmer v. Gilmer, 42 Ala. 23. Chancery jurisdiction over charitable trust. Chancery exercised jurisdiction over charitable trusts antecedent to the Statute of Elizabeth; and although this statute was hever in force in Pennsylvania, yet the common law of that State had always recognized the chancery jurisdiction in cases of charity. Yates v. Yates, 9 Barb. 336; Vidal v. Girard, 43 U. S. 2 How. 127 (11 L. ed. 205). See Fire Ins. Patrol v. Boyd, 1 L. R. A. 417, note, 120 Pa. 624, 626. When there is a body or a definite number of persons clearly pointed out by the terms of the gift to Independently of the Statute of Elizabeth, courts receive, control, and enjoy the benefits of the be- of equity favor the doctrine of trusts for charitable quest, it is not a public charity, however carefully purposes, and exercise original and plenary jurisand exclusively the trust may be restricted to re-diction over them, and may maintain and enforce them by their own powers. Williams v. Pearson, 38 Ala. 299; LaGrange County v. Rogers, 55 Ind. 297; Howard v. American Peace Society, 49 Me. 289; Reformed Prot. Dutch Church v. Mott, 7 Paige, 77; Miller v. Atkinson, 63 N. C. 537; Sowers v. Cyrenius, 39 Ohio St. 29; Dodge v. Williams, 46 Wis. 91. There need not be any legally existing institution to receive the gift, but the object or purpose of the gift must be specified. Norris v. Thompson, 19 N. J. Eq. 314; Williams v. Williams, 8 N. Y. 547; Owens v. Missionary Society of M. E. Church, 14 N. Y. 397; Beekman v. Bonsor, 23 N. Y. 298. The beneficiaries must necessarily be described in the will or gift in general terms. Coit v. Comstock, 51 Conn. 377. It is their number and the indefiniteness of the object which is the essential element which constitutes a charity. Newson v. Starke, 46 Ga. 93; Simpson v. Welcome, 72 Me. 501; Saltonstall v. Sanders, 11 Allen, 456; Burr v. Smith, 7 Vt. 241. According to the law of England as understood at the time of the American Revolution, and as it exists at this day, conveyances, devises, and bequests for the support of charity or religion, though defective for the want of such a grantee or donee as the rules of law require in other cases, would be supported and established in the court of chancery. Kennedy v. Palmer, 1 Thomp. & C. 584, note. See Williams v. Williams, 8 N. Y. 541; Re Christ's College, 1 W. Bl. 90; Going v. Emery, 16 Pick. 107; Búrr v. Smith, 7 Vt. 241; McCartee v. Orphan Asylum Society, 9 Cow. 437; Philadelphia Baptist Asso. v. Hart, 17 U. S. 4 Wheat. 1 (4 L. ed. 499); Vidal v. Girard, 43 U. S. 2 How. 127 (11 L. ed. 205); Inglis v. Sailors' Snug Harbor, 28 U. S. 3 Pet. 99 (7 L. ed. 617). A full grant of equity powers carries all the powers which are exercised by the English chancery courts acting within their regular jurisdiction. Pell v. Mercer, 14 R. I. 438. Funds supplied from the gift of the Crown, or from the gift of the Legislature, or from private gift, for any legal, public or general purpose, are charitable funds to be administered by courts of equity. See Nightingale v. Goulburn, 5 Hare, 484, 486; Dolan v. Macdermot, L. R. 5 Eq. 60, L. R. 3 Ch. 676; Atty-Gen. v. Earl of Lonsdale, 1 Sim. 105; AttyGen. v. Webster, L. R. 20 Eq. 483; Drury v. Natick, 10 Allen, 169; Townley v. Bedwell, 6 Ves. Jr. 194. | If the gift be charitable it is good, however general. Morice v. Bishop of Durham, 9 Ves. Jr. 405; | Horde v. Earl of Suffolk, 2 Myl. & K. 59; Waldo v. Caley, 16 Ves. Jr. 206; Perry, Trusts, $ 706 and cases cited; Bispham, Eq. $119. See also R. I. Pub. Stat. chap. 178, § 6; Pell v. Mercer, 14 R. I. 445. Courts of equity may exercise the cy près 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 près 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 untrammeled by precedent or legislation, should not assume and exercise it. The progress of this belief in the Supreme Court of Saltonstall v. Sanders, 11 Allen, 446, 464; Morice v. Bishop of Durham, 9 Ves. Jr. 399, 406; Ellis v. Selby, 1 Myl. & Cr. 286, 299. In the next place we think that it appears from the facts that the gift is primarily to the trustees of the college; and that the college is in another State; that the income is to be used by the college and that the whole of it may be used for its own support in the discretion of the trustees, as well as from the circumstances the United States is very instructive. Phila. Baptist Asso. v. Hart, 17 U. S. 4 Wheat. 1 (4 L. ed. 499); Vidal v. Girard, 43 U.S. 2 How. 127 (11 L. ed. 205); Russell v. Allen, 107 U. S. 163 (27 L. ed. 397). The Supreme Judicial Court of Massachusetts has accepted it with hearty faith (see Jackson v. Phillips, 14 Allen, 539, 574; Tainter v. Clark, 5 Allen, 66; Going v. Emery, 16 Pick. 119); and it is part of the common law of that State. Dexter v. Gardner, 7 Allen, 246. 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; Hesketh v. Murphy, 36 N. J. Eq. 304; Clement v. Hyde, 50 Vt. 716; Bispham, Eq. § 130; Pell v. Mercer, 14 R. I. 436. The courts of Kentucky carry out the cypres doctrine in cases of uncertain trustees and objects. Cromie v. Louisville Orphans Home Soc. 3 Bush, 365; Baptist Church v. Presbyterian Church, 18 B. Mon. 635; Hadden v. Chorn, 8 B. Mon. 70; Atty-Gen. v. Wallace, 7 B. Mon. 611; Moore v. Moore, 4 Dana, 354; Gass v. Wilhite, 2 Dana, 170; Curling v. Curling, 8 Dana, 38. The Supreme Court of Rhode Island,'having full chancery powers by statute, has so much of the cy près power as is exercised by English chancery, without recourse to the prerogative powers delegated to it in particular cases by the sign manual of the Crown. Pell v. Mercer, 14 R. I. 412. In this State there is no reported decision in which the doctrine of cy près has been adopted, though the decision in Brown v. Meeting Street Baptist Society, 9 R. I. 177, rests upon the principles which lie at the foundation of the doctrine. There are, however, unreported cases in which the doctrine has been recognized or applied. The earliest of these is the case of Gardiner v. Kingston Academy (decided in Washington County in 1840), cited in Pell v. Mercer, 14 R. I. 437. In one case an ancient charity which had ceased to be useful as originally founded was applied to other purposes; and in another case a charity which could not be carried out as intended by the founder was settled in a different manner. St. Michael's Church v. Sayles (Bristol County, May, 1882), and Atty-Gen. v. Newport (Newport County, March Term, 1882), cited in Pell v. Mercer, 14 R. I. 437, affirmed in R. I. Hospital Trust Co. v. Olney, 14 R. I. 449. In Pell v. Mercer, supra, it was held that the bequest should be paid to the Townsend Aid for the Aged, in Newport, as most closely corresponding to the designation in the will. Pell v. Mercer, 14 R. I. 412. In Peckham v. Newton, 2 New Eng. Rep. 508, 15 R. I. 321, the bequest was made to the "Home for the Aged, a benevolent association in said Newport," when there was no such association. Chancery will sustain dedications to public charities. Where the fund was dedicated to the inhabitants of the village for a schoolhouse, as a donation or gift to a public charity, it is a dedication to a public use. Potter v. Chapin, 6 Paige, 639; Mowry v. Providence, 10 R. I. 56. under which the will was made; that the main | ist and of which his friend was supposed to be object is the support of the particular institu- an officer. tion which the testator had in mind; and that the promotion, in Ohio, of Thomsonism, the form of medical art believed in by the testator, was to be accomplished as incident to that object. It is immaterial to this conclusion whether the rame described an existing beneficiary or not. At least it described an institution which was supposed by the testator to ex Property in some cases may be granted or dedicated to the use of a body incapable of holding in its own right. Robertson v. Bullions, 9 Barb. 79; Hartford Baptist Church v. Witherell, 3 Paige, 296. The court of chancery will sustain and protect a dedication of personal property to public or charitable uses, provided the same is consistent with local laws and public policy, when the object of the gift or dedication is specific and capable of being carried into effect according to the intention of the donor. Downing v. Marshall, 23 How. Pr. 29. Although a donation was given to no one by name, nor for any particular children or inhabitants, yet it was held a gift for a public charity, which this court would sustain. And on the school becoming incorporated, the estate vested in the corporation. Shotwell v. Mott, 2 Sandf. Ch. 57. See Moggridge v. Thackwell, 7 Ves. Jr. 36; Wellbeloved v. Jones, 1 Sim. & Stu. 40. Upon the united church becoming incorporated, all their united and consolidated property became vested in the corporation. Cammeyer v. United German Lutheran Churches, 2 Sandf. Ch. 21. Valid trust not to fail for want of a trustee. The court will not allow a valid trust to fail for want of a trustee. Fellows v. Miner, 119 Mass. 545; Chamberlain v. Chamberlain, 43 N. Y. 424; Washburn v. Sewall, 9 Met. 280; Sohier v. St. Paul's Church, 12 Met. 250; Atty-Gen. v. London, 3 Bro. Ch. 171; Mayor of Lyons v. East India Co. 1 Moore, P. C. 295; Atty-Gen. v. Sturge, 19 Beav. 597. If no trustee is named in the will, equity will appoint trustees to execute the trust upon a bill filed by the beneficiaries. First Universalist Society v. Fitch, 8 Gray, 421. In the ordinary case of trusts for such persons of a class as the trustee shall select, when a duty to select is imposed upon the trustee by implication, a general intention to benefit the class is recognized and the trust will not fail if the trustee accepts it and then fails to make a selection. Minot v. Baker, 6 New Eng. Rep. 688, 147 Mass. 350; Drew v. Wakefield, 54 Me. 291. Where a duty was imposed on the trustee to act, it is a strong circumstance in favor of the construction that the benefit is not intended to be made dependent on his acting. Brown v. Higgs, 8 Ves. Jr. 571; Cole v. Wade, 16 Ves. Jr. 27; Moggridge v. Thackwell, 7 Ves. Jr. 82. Enforcement of charitable trusts. A court of chancery has original jurisdiction to enforce and compel the performance of trusts for pious and charitable uses, when the devise or conveyance in trust is made to a trustee capable of taking the legal estate. Drew v. Wakefield, 54 Me. 298. If trustees have once accepted the gift, they may be compelled to apply it to the destined purposes. American Academy of Arts and Sciences v. Harvard College, 12 Gray, 535; Atty-Gen. v. Andrew, 3 Ves. Jr. 646. The court had a free and extensive jurisdiction and was not confined to foreign methods of proceeding requisite in other cases. Atty-Gen. v. Gieg, 1 Atk. 356. The testator's belief as to facts has the same effect upon the construction of his language, whether his belief was right or mistaken. Then, if the foregoing construction of the will is not strict, even if the gift were to a public charity, probably the gift would fail upon the failure of the donee. The main doubt, if it were conceded that the gift was charitable, would arise on the Jurisdiction was exercised irrespective of the circumstances whether the trustees were a corporation or individuals, and whether the gift was to trustees by name, or merely for an object sufficiently definite and specific to be carried into effect. Shotwell v. Mott, 2 Sandf. Ch. 50. The same power which is vested in the Crown, touching parties under the disability of infancy and lunacy, embraces the cases of property given for the purposes of charity, and it is vested in the sovereign in the same paternal character. Re New York P. E. Public School, 31 N. Y. 592. A charity being a trust in which the public is interested, and which is allowed by the law to be perpetual," deserves and often requires the exercise of a larger discretion by the court of chancery than a mere private trust." Jackson v. Phillips, 14 Allen, 539; Minot v. Baker, 6 New Eng. Rep. 688, 147 Mass. 352. Where the departure from the exact intent of the testator is only as to the mode of carrying out his cherished object, not a substitution of one object for another, there is nothing of the cy près doctrine in it. Bristol v. Bristol, 2 New Eng. Rep. 759, 53 Conn. 260. See 2 Pom. Eq. Jur. 596; Starkweather v. American Bible Soc. 72 Ill. 50; Heuser v. Harris, 42 Ill. 425; Gilman v. Hamilton, 16 Ill. 225; Heiss v. Murphey, 40]Wis. 276. Court may require trustee to execute the trust. Where no trustee has been appointed to carry the trust into effect, the executor or the heir at law becomes trustee, and may be compelled by the court of equity to execute the trust, or the court will appoint a trustee. Brown v. Kelsey, 2 Cush. 243; Bartlett v. Nye, 4 Met. 380; Washburn v. Sewall, 9 Met. 280; Tainter v. Clark, 5 Allen, 66; Sanderson v. White, 18 Pick. 339. The general power of the court to carry out the provisions of a will cy près, in case of donations to charitable uses, is well established. Burbank v. Whitney, 24 Pick. 146; Going v. Emery, 16 Pick. 107; Sanderson v. White, 18 Pick. 328; Bartlett v. Nye, 4 Met. 378; Mayor v. Nixon, 2 Younge & J. 60; Moggridge v. Thackwell, 7 Ves. Jr. 82: 1 Story, Eq. 8$ 94, 95; 2 Story, Eq. 88 1060, 1061, 1187, 1190, 1191; Lewin, Tr. 423. When a trustee, directed by a decree of court settling a charitable bequest cy près to pay over the trust fund to a particular object, shows by his language and acts that he will not exercise the discretion because he believes another apportionment will better conform to the intention of the testator, he will be removed. Atty-Gen. v. Garrison, 101 Mass. 223. To warrant a deviation from the plain directions of the will as to the mode of election of trustees an exigency must exist, and where the power of the judge of probate to appoint the first meetings of the towns was limited to one year, and the year expired before such appointments were made, the electors chosen thereafter were not legally constituted a board of trustees. Baker v. Smith, 13 Met. 34; Northampton v. Smith, 11 Met. 390. General intention of testator to govern. The existence of a judicial power to administer a question of construction. In such cases courts if the institution is in its nature, and by its have gone very far in discovering and sustain-name appears to be, a mere trustee or conduit for ing a general charitable intent distinct from the application of its funds to charitable purthe means indicated for carrying it out or the poses, the gift will not fail upon failure of the immediate object. Incorporated Society for donee. Winslow v. Cummings, 3 Cush. 358; Protestant Schools v. Price, 1 Jones & La T. Bliss v. Am. Bible Society, 2 Allen, 334; Old 498, 7 Ir. Eq.260, and other cases cited in Jack-South Society v. Crocker, 119 Mass. 1, 24. Seeson v. Phillips, 14 Allen, 539. Re Maguire, L. R. 9 Eq. 632. Thus, in case of a simple gift to an institution, So a fortiori, if the objects of the charitable ficient to give it effect, or would assume the office of executor. See Baylis v. Atty-Gen. 2 Atk. 239; Cook v. Duckenfield, 2 Atk. 562; Mills v. Farmer, 1 Meriv. 55. But where there is no general intention, but only a particular intention, if that fails the gift fails; so where the trust could never take effect in any other charity cu pres, where the expressed intention of the founder cannot be exactly carried out, has been either countenanced, or left an open question in all the New England States except Connecticut. See Burr v. Smith, 7 Vt. 287, 288; Second Congregational Society v. First Congregational Society, 14 N. H. 330; Brown v. Concord, 33 N. H. 296; Derby v. Derby, 4 R. I. 439; Tappan v. Deblois, 45 Me. 131; How-way than that directed it could not be applied to ard v. American Peace Society, 49 Me. 302; Treat's App. 30 Conn. 113; M'Cord v. Ochiltree, 8 Blackf. 15; Beall v. Fox, 4 Ga. 427; Chambers v. St. Louis, 29 Mo. 590; Lepage v. McNamara, 5 Iowa, 146; McIntyre v. Zanesville, 17 Ohio St. 352. Where there is a clear intention on the part of the donor to devote his gift to charity, and no object is mentioned, or the particular object mentioned fails, the court will execute the trust cy près and apply the fund to some similar object, even though the particular mode of operation contemplated by the donor is uncertain or impracticable and notwithstanding the indefiniteness, illegality, or failure of its immediate objects. See Atty-Gen. v. Baxter, 1 Vern. 248; Hayter v. Trego, 5 Russ. 113; Simon v. Barber, 5 Russ. 112; Atty-Gen. v. Glyn, 12 Sim. 84; Bennett v. Hayter, 2 Beav. 81; Loscombe v. Wintringham, 13 Beav. 87; Atty-Gen. v. Andrew, 3 Ves. Jr. 635: Corbyn v. French, 4 Ves. Jr. 418; Atty-Gen. v. Bishop of Oxford, 4 Ves. Jr. 431; Cary v. Abbot, 7 Ves. Jr. 490; Atty-Gen. v. Ironmongers' Co. 10 Clark & F. 908; Atty-Gen. v. Marchant, L. R. 3 Eq. 424; Atty-Gen. v. Bunce, L. R. 6 Eq. 563; Re Latymer, L. R. 7 Eq. 353; Re Maguire, L. R. 9 Eq. 632; Merchant Tailors Co. v. Atty-Gen. L. R. 11 Eq. 35; Re Prison Charities, L. R. 16 Eq. 129; Atty-Gen. v. St. John's Hospital, L. R. 1 Ch. 92, L. R. 2 Ch. 554; Manchester School Case, L. R. 2 Ch. 497; Atty-Gen. v. Wax Chandlers' Co. L. R. 5 Ch. 503; Sinnett v. Herbert, L. R. 7 Ch. 232; Atty-Gen. v. Duke of Northumberland, L.R. 7 Ch. Div. 745; Chamberlayne v. Brockett, L. R. 8 Ch. 206; 2 Pom. Eq. Jur. 595. Where a surplus accrues from an increase in value of the subject dedicated, the increased profits go to the charity holding the estate whence these profits issue. See Thetford School Case, 8 Coke, 130 b. In such case the plain, implied intention of the testator necessarily excludes the heir from any resulting trust in his favor to the increased rents and another charitable object. See Atty-Gen. v. Bishop of Oxford, 1 Bro. Ch. 444, note; Anonymous, Freem. Ch. 261; Cherry v. Mott, 1 Myl. & C. 123; Clark v. Taylor, 1 Drew, 642; Russell v. Kellett, 3 Smale & G. 264; Langford v. Gowland, 3 Giff. 617; Clephane v. Lord Provost of Edinburgh, L. R. 1 H. L. Sc. 417; Re Clark's Trust, L. R. 1 Ch. Div. 497; Fisk v. AttyGen. L. R. 4 Eq. 521. Scheme may be devised to carry out trust. If there is a competent trustee, although there is no ascertained or ascertainable beneficiary, the gift may be upheld, if the charitable use is so clearly and certainly defined as to be capable of being speSee Goddard v. cially executed and enforced. Pomeroy, 36 Barb. 546. On a gift of the residue of the estate to his executor "to be disposed of by him for such charitable purposes as he shall think proper," and the executor died without disposing thereof, it was held that the will created a valid trust for charitable purposes, and that the court would frame a scheme to carry out the trust. Minot v. Baker, 6 New Eng. Rep. 688, 147 Mass. 348; White v. Ditson, 1 New Eng. Rep. 485, 140 Mass. 353; Re Schouler, 134 Mass. 426; Wells v. Doane, 3 Gray, 201; Everett v. Carr, 59 Me. 325. But the court is not at liberty to alter the scheme of the testator either as to the objects of the charity or the agents by whom it is to be administered, unless it appears to be impossible to carry out his scheme according to its terms. Baker v. Smith, 13 Met. 41; Smith Charities v. Northampton, 10 Allen, 501; Harvard College v. Society for Promoting Theolog. Education, 3 Gray, 280; Jackson v. Phillips, 14 Allen, 591. Object of charity cannot be changed. American courts apply cy près rules in effectuatprofits. See Atty-Gen. v. Wilson, 3 Myl. & K. 372; ing the especial design of the testator, though not Atty-Gen.v. Sparks, 1 Amb. 201; Atty-Gen. v. John-in diverting his charity to other objects than those son, Amb. 190; Atty-Gen. v. Drapers Co. 2 Beav. specified in the will. See Gilman v. Hamilton, 16 508; Atty-Gen. v. Tonner, 2 Ves. Jr. 1; Atty-Gen. v. Ill. 225. Wansay, 15 Ves. Jr. 231. In such cases the surplus is distributed cu près. See Atty-Gen. v. Green, 2 Bro. Ch. 492. But where it is the intention of the donor to limit his benefits to a certain place or class, the rule does not apply. See Atty-Gen. v. Brandreth, 1 Younge, & C. (Ch.) 200; Atty-Gen. v. Rochester, 5 DeG. M. & G. 797. So if the profits decrease the charity must bear the loss. See Atty-Gen. v. Sparks, Amb. 202; Manchester School Case, L. R. 1 Eq. 55, L. R. 2 Ch. 497; Berkhampstead School Case, L. R. 1 Eq. 102. Where the limitation is imperfect by reference to directions in the codicil which were never given, the court will appoint cy près where the bequest would indicate a general charitable intention, suf In Kentucky, where an object is pointed out, and a particular mode indicated which happens to fail, that may be lawful or suitable, but it cannot deequity may sanction or substitute any other modeclare an object for the donor. It is there held that the court acts judicially as long as it effectuates the lawful intention of the donor, but it does not so act when it applies his bounty to a specific object of charity selected by itself, merely because he had to dedicate it to charity generally." See Moore v. Moore, 4 Dana, 366. Beneficiaries uncertain. It is the very uncertainty of the beneficiaries. which gives jurisdiction in chancery. State v trust are declared by the will, and it appears that the discretion of the particular societies named is not of the essence of the gift. Reeve v. Atty-Gen. 3 Hare, 191, 197; Marsh v. AttyGen. 2 Johns. & H. 61. But if the construction of the will is settled in the sense in which we have construed the one before us, then if the donee fails, the gift fails. To that extent at least we may follow the late En glish cases with safety and without encountering the doubts expressed in Jackson v. Phillips, 14 Allen, 594 and 1 Jarm. Wills, 4th ed. 456, 457 (Clark v. Taylor, 1 Drew. 642; Russell v. Kellett, 3 Smale & G. 264; Marsh v. Means, 5 Week. Rep. 815, 3 Jur. N. S. 790; Langford v. Gowland, 3 Giff. 617; Fisk v. Atty-Gen. L. R. 4 Eq. 521; Re Maguire, ubi supra; Minot v. Baker, 147 Mass. 348, 349, 350, 6 New Eng. Griffith, 2 Del. Ch. 392; Chambers v. St. Louis, 29 | Grace, 3 L. R. A. 145, note, 112 N. Y. 299; Fire Ins. Mo. 589. Property may be bequeathed or conveyed in trust for charitable uses and purposes for the benefit of uncertain classes, such as "the poor," "the children," etc., where there is no statute inhibiting the same; and if the purposes are charitable within the meaning of that term, the trust falls within the jurisdiction of equity and will be enforced. See Cottman v. Grace, 3 L. R. A. 149, note, 112 N. Y. 299. A direction that the whole estate should "be used at discretion by the acting selectmen of B for the special benefit of the worthy, deserving, poor, white, American, Protestant, Democratic widows and orphans, residing in B, until all is expended," was held not to be void for uncertainty. Beardsley v. Bridgeport, 1 New Eng. Rep. 639, 53 Conn. 489. A provision in a will that the income of a certain fund shall be applied for the relief of the most destitute of the testator's relatives is not void for uncertainty, but a charitable trust is thereby created, to be executed by the executor according to his discretion, under the supervision of the court. Gafney v. Kenison, 5 New Eng. Rep. 81, 64 N. H. 354. The gift" to aid indigent young men in fitting themselves for the evangelical ministry," was held not to be void for uncertainty. Storrs Agricultural School v. Whitney, 3 New Eng. Rep. 573, 54 Conn. 342. Although no particular person or persons are named who may demand execution of the trust, yet the court will not suffer the gift to fail when it can be made certain. McLain v. White Twp. School Directors, 51 Pa. 199; Zeisweiss v. James, 63 Pa. 468; Perry, Tr. § 732. Where a charitable gift is made to or concerns an indefinite class of persons, the court will endeavor to ascertain a more particular intention and limit its operation accordingly. See Atty-Gen. v. Clarke, Amb. 422; Atty-Gen. v. Combe, 2 Ch. Cas. 18; Brantham v. East Burgold, cited in 2 Ves. Jr. 388; AttyGen. v. Oglander, 3 Bro. Ch. 166. Where beneficiary ascertainable. If a rule is given by which the persons can be described, if not with entire certainty, yet sufficiently so to uphold the devise, and if it can by possibility be upheld, it can never be pronounced void. Bull v. Bull, 8 Conn. 50; Coit v. Comstock, 51 Conn. 379. It is sufficient if the legatees are so described that they can be ascertained and known when the right to receive the legacy accrues. Holmes v. Mead, 52 N. Y. 332; Coit v. Comstock, 51 Conn. 379. 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 Jarman, Wills, 5th Am. ed. 760, note; Button v. American Tract Soc. 23 Vt. 336; Straw v. East Maine Conference M. E. Church, 67 Me. 493; South Newmarket Meth. Seminary v. Peaslee, 15 N. H. 317; Newell's App. 24 Pa. 197; Maund v. McPhail, 10 Leigh, 199; Pell v. Mercer, 14 R. I. 447. Legatees, even though wrongly named, will take, upon its being proved that they were the intended persons. Benson v. Whittam, 2 Sim. 493; Minot v. Boston Asylum and Farm School, 7 Met. 416; Tucker v. Seaman's Aid Society, 7 Met. 188. See Cottman v. | Patrol v. Boyd, 1 L. R. A. 417, note, 120 Pa. 624. Where a legacy was left to a society by name, evidence will be admitted to show what association was meant. See Re Maguire, L. R. 9 Eq. 632. Where there were two claimants and nothing to show a preference, and they both claimed, the legacy was divided. See Bennett v. Hayter, 2 Beav. 81; Simon v. Barber, 5 Russ. 112; Re Kilvert's Trusts, L. R. 12 Eq. 183. But a slight indication of preference will suffice to turn the scale. See Atty-Gen. v. Hudson, 1 P. Wms. 674. Selection of beneficiary. Indefiniteness is of the essence of a public charity requiring the power to select the beneficiaries to be lodged in the court of chancery. Vezey v. Jamson, 1 Sim. & Stu. 71; Ellis v. Selby, 1 Myl. & C. 286; Philadelphia v. Fox, 64 Pa. 182. The charitable object required to be named may be a benefit to a class of persons, and therefore uncertain as to the particular persons of the class that are to receive the benefit. This uncertainty may make the bequest void, unless there is a power given to some person or corporation to make a selection of the individuals. See Bristol v. Bristol, 2 New Eng. Rep. 763, 53 Conn. 242; White v. Fisk, 22 Conn. 50; Adye v. Smith, 44 Conn. 70; Fairfield v. Lawson, 50 Conn. 513; Coit v. Comstock, 51 Conn. 371; Tappan's App. 52 Conn. 412. The uncertainty that must exist in such cases is reduced to certainty if a definite class of beneficiaries is described and a mode is provided for the selection of the particular objects of the bounty. Id certum est quod certum reddi protest. Coit v. Comstock, 51 Conn. 379. In the ordinary case of trusts for such persons of a class as a trustee shall select, when a duty to select is imposed upon the trustee by implication, a general intention to benefit the class is recognized. and the trust will not fail if the trustee accepts it and then fails to make a selection. Brown v. Higgs, 4 Ves. Jr. 708, 5 Ves. Jr. 495, 8 Ves. Jr. 561; Burrough v. Philcox, 5 Myl. & Cr. 72; Penny v. Turner, 2 Phill. Ch. 493; Harding v. Glyn, 1 Atk. 469; Mahon v. Savage, 1 Sch. & Lef. 111; Spring v. Biles, 1 Sch. & Lef. 113, note, 1 T. R. 435, note. Salisbury v. Denton, 3 Kay & J. 529; Nichols v. Allen, 130 Mass. 211, 219; Drew v. Wakefield, 54 Me. 291; Minot v. Baker, 6 New Eng. Rep. 688, 147 Mass. 350. Relief must be administered according to the judgment and discretion of those who must select the objects of the donor's bounty. Beaver v. Filson, 8 Pa. 327. If the charity is general and indefinite, and no plan or scheme is prescribed, and no discretion is given to select the beneficiaries, it does not admit of judicial administration. The will should prescribe some mode of selection or give some person the discretionary power to select. Fairfield v. Lawson, 50 Conn. 513; Beardsley v. Bridgeport, 1 New Eng. Rep. 639, 53 Conn. 491; White v. Fisk, 22 Conn. 53; Grimes v. Harmon, 35 Ind. 198; Reformed Prot. Dutch Church v. Mott, 7 Paige, 77; Inglis v. Sailors Snug Harbor, 28 U. S. 3 Pet. 99 (7 L. ed. 617). Beneficiary not in being. Where the use was a charitable one, a court of |