
    Scott v. Trustees of Marion Township.
    1. Property was devised to the trustees of M. township, and their successors perpetually, for the exclusive benefit of the poor of the township, with authority to the trustees to manage the trust “ as they think best for the benefit of said poor.”
    
      Held : The trustees were thereby authorized to invest the moneys belonging to the trust, in notes or other securities, and such power was not limited, by the act of April 19, 1865, S. & S. 910, to loans upon realestate security.
    2. In an action by such trustees, to recover upon a promissory note, purchased with moneys of and belonging to said trust,- it is no defense, that the township records do not contain the evidence of such purchase or ownership.
    Error to the District Court of Allen county.
    By will admitted to probate in 1858, Philip Beilis devised a farm of 200 acres to the trustees of Marion township, Allen county, naming them and their successors in office perpetually, for the exclusive use and benefit of the poor of said township, authorizing said trustees and their successors to dispose of said farm as they might think best for the benefit of said poor; said trustees to do in all matters as they think best for said poor by renting the farm, or if authorized by vote of the citizens of the township, by selling it. The farm was sold and a fund of about $5,000 realized therefrom, which was loaned out by the trustees, the interest being sufficient for the purposes of the trust.
    In 1875, C. A. Evans, one of the defendants in error, borrowed $370 of this money from the trustees and executed his note therefor. While the note was liekl by the trustees, Evans proposed to exchange therefor a note which lie owned, of which the following is a copy:
    “ $500.00. Detphos, O., March 1, 1875.
    “ On or before June 1st, A. d. 1876, we, or either of us promise to pay to Dr. O. A. Evans, Esq., five hundred dollars, for value received, with 8 per cent, interest until due.
    .Indorsed, “ O. Jettinger,
    “ C. A. Evans.” Clarence W. Scott.”
    The trustees had no formal meeting to consider the transfer or exchange of notes, but each trustee assented to it and authorized the clerk to make the exchange. The old note was delivered up to Evans' and this one, indorsed by Evans, taken in its stead. . There was no record of this transaction upon the township books, beyond the mere entry of the note by the clerk in the list of notes belonging to this fund.
    The action was by the trustees against Scott and Jettinger as makers, and' Evans as indorser, upon the note last mentioned. The answer of Scott and Jettinger admitted the execution of the note, but denied the ownership of plaintiffs. The proof established the facts above recited. No claim was made that the note was paid, or that there was any defense against it in the hands of Evans.
    The action was tried to the court without a jury, and judgment rendered in favor of the defendants. Upon error the district court reversed that judgment, and this proceeding is prosecuted by Scott and Jettinger to procure a reversal of that judgment of reversal. Evans refusing, to join as plaintiff is made defendant in error.
    
      
      Mead d¡ Townsend, for plaintiffs in error:
    1. The township could under no circumstances become the owner of the note sued on. It lacked the corporate power. 1 Cooley’s Blackstone, 188, and note 471; Dillon’s Mun. Corp. 75; 2 Bonvier L. Dic. 201, 401; Wilson v. Trustees, 20 Ohio St. 362; 32 Conn. 131; Strauss v. Ins. Co., 5 Ohio St. 60; S. & C. 1565; S. & S. 910; Brice Ultra Vires, 66; Trustees v. Miller, 5 Ohio, 185.
    2. The testimony introduced by the township in support of its action was insufficient in law to entitle it to a judgment against the plaintiffs in error. Rev. Stats. § 4993 ; Steinbeck v. Treasurer, 22 Ohio St. 144; McCortle v. Bates, 29 Ohio St. 419; S. & C. 1576, §10 ; Beebe v. Scheidt, 13 Ohio St. 406; Ratcliff v. Teters, 27 Ohio St. 66, 74; Reynolds v. Scweinefus, 27 Ohio St. 311; Commissioners v. Chitwood, 8 Ind. 504; Dillon’s Mun. Corp. §§ 258, 259 ; Commonwealth v. Wilder, 6 Cinn. Law Bulletin, 377; Allegheny Work House v. Moore, 22 Albany L. J. 518.
    
      T. E. Cunningham, B. J. Broiherton and John F. Br'otherton, for the township trustees.
    
      MacKenzie <£ Robb, for C. A. Evans:
   Doyle, J.

It is insisted, in support of the judgment of the court of common pleas, first, that the trustees could not, under any circumstances, become the owners of the note sued upon, and second, if they could, the only way such ownership can be proved, is by the records of the township.

We are referred to the act of March 14, 1853 (S. & C. 1565), as amended April 13, 1865 (S. & S. 910), which, it is claimed, conferred upon the township, the only power it had to sue and be sued, as well as to accept the devise in question, and which, it is also insisted, by expressly authorizing such township to receive real estate in payment of, or security for debts due it, withheld from it the power to receive anything but real estate security.

The statute referred to, whether that construction is correct or not, has no application to the case at bar. The devise in the will of Beilis, was not to the township, nor to any of the uses named in said act. It was a devise to the trustees for the exclusive use of the poor of the township, creating a charitable trust to be administered by said trustees. The statute authorizing said devise, if it needed the authority of statute, has been in force in substantially the same form, since 1789. See S. & C. 926, § lé; R. S. § 20; Urm,ey'’s Executors v. Wooden, 1 Ohio St. 165. The testator had the power to devise the property to the poor of the township, in which case the statute provided the trustees, or to make such devise to trustees for the benefit of such poor. In either case granting such discretion and power, in the management of the trust, to whoever the trustees might be, as he saw fit.

By the will of Beilis, the trustees are given full power to manage the trust fund, “as they think best for the ben fit of said poor.” They may invest it upon real estate security, or in notes or bonds without such security, being resposible for good faith and prudent management.

Having the power to purchase the note and maintain an action upon it, the rules of evidence, under the issue presented, are the same as in other cases on a like cause of action. The proof was that the trustees bought the note, which was in their possession regularly indorsed by the payee, and that it belonged to, the trust fund. The payee was a ]3arty to the action and admitted the title of the plaintiffs therein. It was not essential to their right to recover that there should be a record, in the township books, of the transaction. It would be a prudent course for the trustees, and indeed their duty, to keep accurate accounts of all their dealings with this fund, but their failure to enter the same in the township records does not furnish the defense sought to be made here, even a technical support.

Judgment affirmed.  