
    St. Peter’s Church vs. Helen A. Brown, Executrix.
    PROVIDENCE—
    JULY 1, 1899.
    Present : Matteson, 0. J., and Tillinghast, J.
    (1) Chancery Jurisdiction of Court.
    
    The decision of this court given in the case of Pell v. Mercer, 14 R. I. 412, relative to the law of charitable uses and of the cy pres jurisdiction of the court, affirmed.
    
      (2) Charitable Uses. Cy pres Doctrine.
    
    Although a testamentary bequest to a charitable use is to a voluntary association or unincorporated society, a body uncertain, indefinite, and fluctuating in its membership, the court will, under its chancery jurisdiction, uphold it and will appoint a trustee to take and administer the fund agreeably to the bequest.
    Bill in Equity for the appointment of a trustee to receive and hold a bequest, given to an unincorporated religious society for religious purposes. Heard on bill and demurrer. Demurrer overruled.
   Matteson, O. J.

This is a bill in which the complainant prays to be appointed a trustee to receive and hold a bequest of a thousand dollars under the codicil to the will of Elisha O. Angelí, late of Providence, deceased, which codicil is as follows : “I hereby give and bequeath the sum of one thousand dollars to the St. Peter’s Protestant Episcopal Church in Mantón, in trust forever, to use and apply, the income therefrom accruing for such purposes in connection with the maintenance and support of said church as to the rectors and wardens of the said church shall seem best.”

The bill' alleges that said St. Peter’s Protestant Episcopal Church in Mantón was an unincorporated religious society, organized for religious purposes and carrying on religious work, and was an ecclesiastical organization recognized by and in full union with the Protestant Episcopal Church in the State of Rhode Island, and was in existence at the time of the making and execution of the codicil and the probate thereof, and that membership in said St. Peter’s Protestant Episcopal Church in Mantón was determined by and in accordance with the laws and ecclesiastical authority of the Protestant Episcopal Church in the diocese of Rhode Island ; that on June 13, 1898, its wardens and members duly organized themselves into a parish of the Protestant Episcopal Church of the diocese of Rhode Island, under the name of St. Peter’s Church, located in the village of Mantón, in Johnston, and became a corporation under that name, duly created under the laws of this State; that it is carrying on as such corporation and as a successor of the St. Peter’s Rrotestant Episcopal Church in Mantón the same religious work as the former church, and under' the same rules, regulations, and principles, in the same building and town, and having for its congregation the members of the former •church; that its membership is still determined by the laws and ecclesiastical authority of the Protestant Episcopal Church in the diocese of Rhode Island ; and that it is in every .sense the successor of the former church, having succeeded "to its property, having the same congregation,-carrying on dhe same work, the former church having been incorporated into the present organization.

The respondent demurs to the bill because the St. Peter’s 'Protestant Episcopal Church in Mantón, having been an unincorporated body, was incapable of receiving or administering the trust; and because there was not during the lifetime ■of the testator, nor at his decease, nor at the time of the probate of his will, a body inchoate or corporate known as St. Peter’s Protestant Episcopal Church in Mantón and capaple of administering the trust provided for in the codicil.

Our opinion is that the demurrer must be overruled. The law of charitable uses, as administered by the English chancery in its regular jurisdiction, is a part of the law of this State; and this court, having full chancery powers by statute, has so much of the cy pres power as is exercised by the 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 ; Rhode Island Hospital Trust Co. v. Olney, 14 R. I. 449. By the English chancery .system a charitable trust', unlike a private trust, is not allowed to fail for want of a trustee; but the court will appoint a trustee to carry it into effect, or will itself establish a scheme by which the purpose of the donor may be accomplished as though the legal title had been invested in a certain trustee. It follows from this principle that, though the gift to a charitable use, as in the present instance, is to a voluntary association or unincorporated society, a body uncertain, indefinite, and fluctuating in its membership, the court will nevertheless uphold it and will appoint a trustee to take and ad minister the fund agreeably to the bequest. Cocks v. Manners, L. R. 12 Eq. 574 ; Goodell v. Union Association, 29 N. J. Eq. 32 ; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Byers v. McCartney, 62 Ia. 339; Wood v. Paine, 66 Fed. Rep. 807 ; 5 Am. & Eng. Ency. L. 2 ed. 918, note.

Bassett & Mitchell, for complainant.

Wood & Fitch, for respondents.

A decree may be entered for the appointment of the complainant as trustee, according to the prayer of the bill.  