
    Curling’s Administrators and Others against Curling’s Heirs.
    Chancery.
    [Mr. E. Wiclcliffe Jr. for appellants: Mr. Owsley and Mr. J. T. More-head for appellees.]
    From the Circuit Court eor Trigg County.
    
      April 22.
    Devise of the whole estate of the testator who died childess,) to his wife for life, remainder (except a slave manumitted,) to the use, previledge and benefit a public seminary not to be sold, but rented and hired out the purpose aforesaid:—
    As a will is undertood as speaking at the testator's death as to slaves, those which the testator acquired after the date of this will, passed by it.
    
      Meld that the devise over is a charity, within the 43 Eliz. not void, but valid— creating a charitable trust, which may be lawfully andjudicially upheld & executed. And—
    The testator, by designating a gen eral objeetof cha rity — “ a public seminary,” must be understood as intending, either a seminary or the seminary of his county, or any which his executors or a court of equity, in the exercise of a sound judicial discretion, should select.
   Chief Justice Robertson

delivered the opinion of the Court.

James Curling — who died in 1833 — by his will, pub^she<I ^11 1815, devised his estate to his wife during her life, and then made the following devise: — “And at the “ decease of my said wife, it is my will and desire that “my negro boy Harry shall cease from slavery and be “emancipated and set free, and that the remaining part “of my estate shall be left for the use, privilege and “benefit of a public seminary — that the said property “ shall n°t sofej I>ut rented and hired out for the purit p0se aforesaid.”

. It appears that, at the time oí his death, the testator, wh° was childless, owned a tract of land, of no great va^ue’ ™ coutlt7 °f Trigg, on which he had continued to reside from some time prior to the date of his will, a few slaves, some of whom he had acquired after the publication of his will, and an inconsiderable personal estate.

Mrs. Curling, the devisee for life, having renounced the will and taken dower, the appellees, claiming the estate as the collateral kindred of the testator, and insisting that the devise to the use of 11 a public seminary” was void, filed a bill in chancery against the administrators with the will annexed, for settlement and distribution.

The administrators denied that the devise was void; and having made their answer a cross bill, and made the Attorney General a defendant to it, they prayed for a decree for applying the testator’s bounty in aid of some seminary of learning already established, or to the founding of a new one.

As the fund is not sufficient to found a new institution, it Í3 presumed, that the testator intended it for one thatwas or might be already established. And that the seminary' in the testator’s county, the only one there, — tho it was established after the date of his will — is en titled to the benefit of the devise,'' on the ground that the testator would probably have preferred it, and the ground also,that that selection, by the executors, or by the Chancellor, would be most appropriate.

A trustee to be appointed by the court below, to manage -the estate, for the use of the seminary.

The trustees of the Trigg county Seminary, established and organized since the date of the will, being afterwards made defendants to the original bill, filed an answer in which they insisted that the institution under their superintendence was entitled to the fund dedicated by the will “ to the use, privilege, and benefit of a public seminary.”

The Circuit Court, being of the opinion that the devise to “a public seminary” was void, dismissed the. cross bill, and decreed that the appellees were entitled to the estate as heirs and distributees. And, by consent, this appeal is prosecuted by the administrators and trustees, for reversing that decree.

As hitherto decided, the will as to the slaves should be understood as speaking at the testator’s death, and therefore, those acquired after the publication, passed by the will.

The devise to a public'seminary is evidently a charity within the scope and protection of the statute of 43rd Elizabeth. And, as thé testator has manifested an intention to dedicate his estate to one specified class of objects embraced by the statute, if his bounty can be applied to any single object within that class, consistently with his declared purpose, and without the hazard qf violating his will, or of making a will for him, there is no doubt, that a trust exists which may be lawfully executed and judicially upheld and enforce'd.

Now, though the devise to “a public seminary” may not necessarily identify any one institution of learning, yet, according to the well established exposition of the statute of Elizabeth, this devise is not, as at common law, void. The statute makes it valid, according to the British doctrine. And if it can be judicially executed, it is good according to the Kentucky doctrine also.

So far as the Chancellor of England has applied an indefinite charity to a specific object in a class of objects not designated by the donor, or has applied the donor’s bounty to a purpose different from that to which it was dedicated by himself, we should be unwilling to follow the example. The cy pres doctrine of the civil law, as applied by the Chancellor of England to charities, -is not, to its full extent, a judicial doctrine, and so far as it is ultra judicial it cannot bé recognized by courts of equity here.

But, in this case, the testator, by designating a general object of charity, {‘a public.seminary?) must be understood as-intending either a seminary dr the seminary of his county, or any seminary which his- executors or a court of equity, in the exercise of a sound discretion, should select as best adapted to effect the object of the charity. And upon'either of these hypotheses, the testator’s purpose, as declared, and circumscribed by himself, may'be fulfilled by applying the fund to a specific object without any hazard of perverting his bounty in a manner not contemplated by him and authorized by his will.

If property bé devised to education, it could not, in our opinion, be judicially diverted to religion, or the relief of the poor or the sick, or to general charity, or to any other object than that designated by the testator. Nor, if he shall have dedicated' it to a designated college, could a court of equity authorize or sanction the application of it to an essentially different institution; because, by doing so, the Court might apply the charity to a specific object to which the testator did not intend that it should be applied, and to which he never would have devised it.

But no such unjudicial latitude of discretion is neces.sary for applying the chárity in this case. And therefore, according to principles well established as perfectly judicial, we are of the opinion that the devise created a- charitable trust which may be executed according to law, and without violating the will of the testator, or making a will for him.

The only doubt we feel, is as to the precise application of the charity in such a mode as will accord most certainly ánd fully with the testator’s object.

The value of the property devised appears to be insufficient for founding any useful seminary of learning. And therefore, we must infer that the testator intended that the profits should be applied in aid of some existing seminary. And we are inclined -to the conclusion that hé contemplated the publicSeminary of his own county whenever established — there being, as we infer, none such at the date of his will. In England a devise “to the poor” has been frequently construed as meaning the poor of the testator’s parish, because it was but reasonable to presume that the testator preferred the poor among his own neighbors and friends, rather than the paupers of other parishes with whom he had no peculiar sympathies, and whom it was the duty of others to sustain.

Like considerations would conduce, in some degree, to a similar deduction in this case. And even if the Trigg seminary could not claim the bounty as a matter of clear and exclusive right — nevertheless, we are of the opinion that the application of the fund to that seminary would effectuate the declared purpose of the testator more certainly and appropriately than any application that could be made of it to any other seminary of learning.

And therefore we conclude, that the Circuit Court ought to have decreed the appropriation of the profits of the devise to the use of the Trigg seminary and appointed a.trustee to execute the trust; and consequently, erred in dismissing the bill.

Wherefore, the decree is reversed, and the cause remanded for a decree conformable with this opinion.  