
    Sowers v. Cyrenius.
    1. A residuary clause in a will in these words : “At the decease of my wife Esther I give and bequeath all my estate, real and personal, for the preaching of the gospel of the blessed Son of God, as taught by the people known now as Disciples of Christ. The preaching to be well and faithfully done in Lorain county in Birmingham, and at Berlin in Brie county, Ohio, and I nominate and appoint John Cyrenius, Silas Wood and Samuel Steadman executors of this item of my last will and testament, and I request them to do the business without remuneration,” — creates a valid trust which will be enforced in a court of equity.
    2. Whether the legal title to the real estate devised, is in the trustees, or descended to the heir at law, it is subject to the trust.
    3. When one of the trustees named in the will died, and another removed to a place unknown, the probate court had power to fill such vacancies, although there was a surviving trustee capable of executing the trust. (S. & C. 1630, §§ 66, 67.)
    Error to the District Court of Lorain county.
    Samuel G. Cable, a resident of Lorain county, by his will gave to his wife all of his estate during her life, and appointed her sole executrix of the will. The will then provided as follows :
    “Item 8: At the decease of my wife Esther, I give and bequeath all my estate, real and personal, for the preaching of the gospel of the blessed Son tif God, as taught by the people known now as Disciples of Christ. The preaching to be well and faithfully done in Lorain county in Birmingham, and at Berlin in Erie county* Ohio, and I nominate and appoint John Cyrenius, Silas Wood and Samuel Steadman, executors of this item of my last will and testament and 1 request them to do the business without remuneration.”
    The testator died without issue, and the will was- admitted to probate in Lorain county. The testator’s widow afterwards married Samuel Sowers, the plaintiff in error, and died intestate, leaving said Sowers her heir-at-law. Silas Wood having died, and Samuel Steadman having removed from the state of Ohio to some place unknown, the probate court of Lorain county appointed in tlxeir places as trustees under the will, Stanley M. Parmley and James T. Robinson. Cyrenius, Parmley and Robinson duly qualified as trustees and filed a petition in the common pleas court of Lorain county against Sowers, asking for a construction of the w-ill and for authority to sell the real estate of which the testator died seized, and to carry out the trust created by the will.
    Sowers demurred .to the petition and hi» demurrer was overruled. He then answers denying the due appointment of Parmley and Robinson as trustees, and the legal power of Cyrenius, Parmley, and Robinson, to act as trustees, and averring that the provisions of the third item of the will are vague, uncertain, and void, and that no power or authority is by the terms of said item vested in the executors therein named to sell or dispose of the property. The court of common pleas held that the trust was valid and rendered judgment for the trustees in accordance with the prayer of the petition, which judgment was affirmed by the district court, on error.
    This proceeding is prosecuted to reverse the judgment of the district court.
    W. I. Johnson, for plaintiff in error :
    First. The probate court had no power to appoint Parmley and Robinson trustees, and they have no authority to act as such under this will. Wills Act, §§ 66, 67, S. & C. Stat. 1630. I think a fair construction • of these sections leads to the result that, when any of the trustees survive, he or they must execute the trust. But when none survive the court may, in a proper case, appoint.
    Second. The provisions of the will are vague, indefinite^ and uncertain. 1. It gives the estate to nobody. It appoints executors, requests them “ to do the business without remuneration,” and nothing more. They are not even requested to administer the estate. Their duties are left to the law under their appointment. The request of the testator is that they seek no remuneration. No authority to deal with or dispose of the estate, can be gathered from this request. 2. It purports to give the estate to an object of the most vague and indefinite character. Nothing can be more vague than “the preaching of the gospel.” The will prescribes a territory, but this adds nothing to its definiteness. The beneficiaries are the people of the territory, but the will prescribes no method of securing to them the proposed benefits. It does not even provide that the preaching shall be done by licensed or ordained clergymen. Preaching by the executors at their own doors, to the value of the estate, would fulfill all the conditions of the will. And if appealed to by the beneficiaries, how can the courts determine -whether there is or is not a compliance with the testator’s intentions, where none are expressed? What scheme does the will disclose to aid the court in rejecting one plan of operations and substituting another ?. Can the courts of this state “devise a scheme for the application of a vague charity ?” 3. It prescribes no method of dealing with the estate, whether the lands shall be retained or sold, whether the income only shall be used, or the entire estate be devoted to a single grand round of preaching. The intention of the testator respecting this most important matter nowhere appears. How can the courts direct or restrain the action of the executors ?
    Third. Are the chancery powers of the courts of this state broad enough to administer a charity as vague and indefinite as this ? It is believed this court will ground no jurisdiction, in cases of charitable uses, on the statutes or decisions in England prior to the enactment of 43 Elizabeth, which transcend the ordinary jurisdiction of a court of equity. It is not intended to enter upon the discussion of a subject that has enlisted the abilities of many of the most eminent jurists both in this country and in England. It is sufficient to show that anterior to the enactment of that statute, the jurisdiction of the English court of chancery over charities is obscure and controverted. See Baptist Association v. Hart's Exrs., 4 Wheat. 1; McGill v. Brown, Bright. (Pa.) 346; Burr v. Smith, 7 Vt. 241; Vidal v. Girard, 2 How. 127; 14 N. Y. 380; 9 How. 77; 22 Mo. 543, It is certain that this court has hitherto, in no case, sanctioned a resort to any other than its ordinary equity powers in dealing with charitable uses. Trustees v. Zanesville, 9 Ohio, 254; Zanesville, &c. Canal Co. v. Zanesville, 20 Ohio, 483; Mc-
      
      Intire's adm'rs. v. Zanesville, 17 Ohio St. 352; Urmey's Ex'rs. v. Wooden, 1 Ohio St. 160 ; Miller v. Teachout, 24 Ohio St. 425 ; Board of Education &c., v. Ladd, 26 Ohio St. 210; Tract Society v. Atwater, 30 Ohio St. 77; Perrin v. Carey, 24 How. 465.
    Fourth. When a devise is to a purpose or object merely, as a general rule, the American courts possess no power to enforce it, unless the testator has given the estate to some definite purpose or object, furnishing a complete and intelligible scheme for the ajiplication of the trust property; or has given the estate to trustees with ample discretionary ¡cowers in applying it.
    In addition to the cases above referred to, the following are cited: Whitman v. Lex, 17 S. & R. 88; Williams v. Williams, 8 N. Y. 525; Owens v. Missionary Society, 14 N. Y. 380; Beekman v. Bonsor, 23 N. Y. 298; Phelps' Ex'rs. v. Pond, Id. 69; Wheeler v. Smith, 9 How. 55 ; Attorney General v. Soule, 28 Mich. 153 ; Holland v. Peck, 2 Ired. Eq. 255 ; Ruth v. Overbrunner, 40 Wis. 238 ; Heiss' Ex'rs. v. Murphy, Id. 276; White v. Fiske, 22 Conn. 31; Le Page v. McNamara, 5 Iowa, 124; Galligo's Ex'rs. v. Attorney General, 3 Leigh, 450; Barker v. Wood, 9 Mass. 419; Trippe v. Frazier, 4 Harr. & J. 392; Wildman v. City of Baltimore, 8 Md. 551; Grimes' Ex'rs. v. Harmon, 35 Ind. 198; Deshiel v. Attorney General, 5 Harr. & J. 392; Fountain v. Ravenel, 17 How. 369; Perry on Trusts, 1 Ed. §§' 720, 722; Baptist Association v. Hart, 4 Wheat. 1.
    
      Pennewéll de Lmnson, and Geo. P. Metcalf, for defendants in error:
    In all essentials, the trust created by this will is definite and certain, and such as the courts of this state, by the chancery powers which they possess, can control and enforce.
    First. The testator devotes his estate to be used for the preaching of the gospel of Christ as taught by the denomination or “ people ” called “ Disciples of Christ.” This is the general purpose of the trust.
    Second. The beneficiaries of the trust are the people residing in Lorain county and in Birmingham and Berlin in Erie county, Ohio.
    Third. In these localities the preaching of the gospel is to be well and faithfully done.
    Fourth. John Cyrenius, Silas Wood and Samuel Steadman are appointed by the testator to execute the trust.
    Fifth. John Cyrenius, Silas Wood and Samuel Steadman are requested to do the business as “ executors of this third item of my last will and testament” without remuneration. The general purposes and objects are here clearly stated by the testator. It is a trust for a public charity. Jackson v. Phillips, 14 Allen, 556 ; Perry on Trusts, § 687; 17 How. 384; 11 Allen, 456 ; 9 Ohio, 287. For the rule in construing trusts of this hind adopted by this court, see 20 Ohio, 488; Miller v. Teachout, 24 Ohio St. 532. As to the objection that the will gives the estate to nobody, we say that courts have by construction implied an estate in trustees although no estate was given them in the words: but in all such cases the trustees were required to do something that required a legal estate of some kind in them. 1 Perry on Trusts, § 313, and notes 2 and 3 ; Hill on Trustees, 354-357; 1 Ohio St. 479, 497. But should it be held that the legal estate is not devised to the “executors of the third item,” we say this fact in noway affects or impairs the trust; that it is equally good as if the legal estate by appropriate words had been vested in the trustees or executors. Miller v. Teachout, 24 Ohio St. 533; Ambler, 571; 1 Bro. Ch. 81; 2 Delaware Ch. 456; 2 Story’s Eq. 1059 ; Cooke on Lift. 290 b. We say next that the general charity in the case before the court is not more vague and uncertain than were those which have been upheld and enforced by our own and other courts in this country many times. McIntyre v. Zanesville, 9 Ohio, 203; Urmey v. Wooden, 1 Ohio St. 160; 30 Ohio St. 77; Lockwood v. Wood, 2 Conn. 287; Brewster v. McCall, 15 Conn. 274; White v. Task, 22 Conn. 31; Treat's Appeal, 30 Conn. 113 ; Hewson v. Starke, 46 Ga. 88; State v. Griffith, 2 Del. Ch. 392; Heme v. Allen, 42 Ill. 425; Sweeney v. Sampson, 5 Ind. 465; McCod v. Ochiltrec, 8 Blackf. 15 ; Richmond v. State, 5 Ind. 334; Ex parte 
      Lindly, 32 Ind. 367; Craig v. Secumb, 54 Ind. 420; De Bruler v. Ferguson, 54 Ind. 549 ; 55 Ind. 297; Moore v. Moore, 4 Dana, 354; Chambers v. Baptist Society, 1 B. Mon. 219 ; Shopleigh v. Pittsburgh, 1 Greenl. 271; Kimbell v. Unversalist Society, 34 Maine, 424 ; Tappan v. Dubois, 45 Maine, 288; Drew v. Wakefield, 54 Maine, 297; 57 Maine, 526; Attorney General v. Garrison, 101 Mass. 227; Robert v. Emerson, 105 Mass. 433; Gooch v. Association, 109 Mass. 558; Fellows v. Minn, 119 Mass. 541; Webb v. Neal, 5 Allen, 575; Odell v. Odell, 10 Allen 1; Saltonstall v. Sanders, 11 Allen, 446 ; Attorney General v. Old South Church, 13 Allen, 474; Brown v. Kelsy, 2 Cushing, 243; North Adams v. Fitch, 8 Gray, 421; Washburn v. Sewal, 9 Metc. 280; Young v. Emery, 16 Rich. 107; Wade v. American Colonization Society, 7 Sin. & M. 695; Chambers v. St. Louis, 29 Mo. 543; Union Baptist Society v. Candia, 2 N. H. 20; Baptist Society v. Welton, 2 N. H. 508 ; Second Cong. Society v. First Society, 14 N. H. 315; Brown v. Concord, 33 N. H. 296; Dublin Case, 38 N. H. 459; Methodist Trustees v. Peasely, 15 N. H. 317; Mason v. M. E. Church, 12 C. E. Green, 47; Baldwin v. Baldwin, 3 Halst. Ch. 211; Mason v. M. E. Ch., 12 C. E. Green, 47; Williams v. Williams, 8 N. Y. 525; Matter of New York Schools, 31 N. Y. 574; Christie v. Gage, 2 T. & C. Sup. Ct. 344; State v. Gerard, 2 Ind. Eq. 210; Cresson's Appeal, 30 Pa. 437; Philadelphia v. Girard, 45 Pa. St. 9 ; Mayer v. Society for Visitation, 2 Brews. 385 ; Blennom's Estate, Bright, 338; Polts v. Philadelphia, 8 Phila. 326; Heddleston's Estate, 8 Phila. 602; Whitma v. Lex, 17 Serg. & R. 88 ; Grandom's Estate, 6 Watts & Serg. 547; Derby v. Derdy, 4 R. I. 414; Hamburgh v. Hamburgh, 12 Heisk. 635; McAllister v. McAllister, 46 Vt. 272; Clement v. Clyde, 50 Vt. 716.
   Upson, J.

The decisions in the courts of this country and of England, in cases involving the power of courts of equity to enforce charitable trusts, and the validity of such trusts, are numerous and somewhat conflicting. But they have been fully considered in several cases heretofore decided by this court, and need not now be reviewed. It is only necessary to state the conclusions at which we have arrived.

Gifts for charitable purposes have always been favored, and trusts created for such purposes are carried into effect by courts of equity upon general principles of equity jurisdiction.

In the case of Urmey’s executor v. Wooden and others (1 O. S. 160) it was decided that the courts of chancery in this state, independently of the statute of charitable uses, 13 Elizabeth, have jurisdiction to enforce such trusts, and the existence of that jurisdiction has not since then been questioned.

Among the charitable trusts which have been most liberally construed and most uniformly sustained have been those created for the promotion of religion and education. It is clear from the language used by the testator in the third item of his will, that he intended his property to be used, after the death of his wife, for the promotion of religion by the preaching of the gospel of Christ as taught by the denomination known as the Disciples of Christ. The object thus stated is claimed to be vague, indefinite, and uncertain, but the authorities decisively show that this claim can not be sustained. We need only refer to the decisions of this court in the cases of Urmey's Executors v. Wooden, supra; and Miller v. Teachout, 21 Ohio St. 525. In the former case the residue of the estate was devised to “the poor and needy, fatherless, &c. of Jefferson and Madison townships,” of Montgomery county.' In the latter case, the residue of the estate, after the death of the testator's wife, was to be appropriated and used “ for the advancement and benefit of the Christian religion. ” In neither of those cases was the object of the trust defined with greater certainty than in this.

It is no objection to the validity of the trust that the individuals to be benefited by it are not designated in the will, for this indefiniteness is a necessary characteristic of charitable trusts. It is only required that discretionary power to use the property for the purposes intended by the testator should be given to trustees appointed by him, or by the court. In this instance that power has been plainly given by the testator to the persons named as executors of the third item of the will. Although the language of the will might have been more definite, the intention is clear and the trust valid.

It is next insisted that the estate was not devised, or intended to be devised, to the trustees. It is true that the estate is not devised in express terms, but the weight of authority is m favor of the proposition that courts wfill by construction imply an estate in trustees, although none is given them in words, in cases where they are required to do something which can not be done without a legal estate, and that the estate thus implied will be an estate sufficient for the purposes of the trust. In this case, the purposes of the trust obviously require an estate in fee, and that estate would under that rule be implied by construction in the trustees. It is unnecessary however to decide whether an estate in fee was taken by the trustees, or not, for even if the legal estate descended to the plaintiff in error, it descended subject to the trust, which could still be enforced against it. This was decided in the ease of Trustees of McIntyre Poor School v. Zanesville Canal and Manufacturing Co. (9 Ohio, 203), and also in the case of Williams v. First Presbyterian Society of Cincinnati (1 Ohio St. 478).

It is next insisted that the appointment of Parmley and Robinson, as trustees, was invalid. If this were true, the plaintiff in error would not be prejudiced thereby, for the trust .might still be executed by Cyrenius, the surviving trustee; but we are of opinion that under the provisions of the act relating to wills (S. & C. 1630, §§ 66, 67) the probate court was authorized, in a proper case, to appoint suitable persons to aid in executing the trust according to the will, although there might be a surviving trustee capable of executing it, and that this power was properly exercised in this case. There is nothing in the language of the will to indicate that the power given to the first trustees is a personal trust and confidence, that cannot be exercised by others, and there is nothing in the nature of the trust to prevent its execution, in accordance with the intention of the testator, as well by trustees appointed by the court as by those named in the will.

Judgment affirmed.  