
    John McIntire's Administrators, and The Zanesville Canal and Manufacturing Company v. The City of Zanesville.
    Where a fund was devised in 1815, with directions to the trustees thereof to invest a portion of the fund in certain specified stocks, and to apply the proceeds of the fund for the use and support of a “poor school” or “institution,” for the benefit of poor children in the “ town of ZanesvilleHeld — •
    1. That if an investment of such fund in the stocks so specified has become impracticable, or the stocks named have become valueless, the trustees will be directed to invest the fund in other safe and productive forms.
    2. The benefit of the devise is not limited to the children of the town as it existed at the date of -the will, or to the corporate limits of the town or city, but extends to poor children residing in additions made, or to be made thefeto, according to the popular sense of the word at the time of dispensing the charity.
    3. Any permanent appropriation of the proceeds of such fund, to aid the public schools of the city of Zanesville, and thus lighten the taxes assessed upon the property of the city, would be a perversion of the fund from the legitimate objects of the donation; and a discontinuance of such appropropriation will be directed.
    4. The ultimate object of the bequest was the education of poor children in Zanesville; the establishment and maintenance of a “ school" or “ institution" being mere means to that end; and when a change of circumstances has rendered other means indispensable to the accomplishment of that end, the trustees may resort to such other means, in connection with said school or institution, and as incidental thereto, including, among such other means that of so far relieving the necessities of poor children, as to make their education-practicable, in cases where that result can not otherwise be attained, and when the proceeds of the fund are sufficient for that purpose.
    Appeal. Reserved in the district court of Muskingum county.
    
      John Mclntire, the original proprietor of the town (now city) of Zanesville, died in August, 1815. By his last will, *which was executed in March, 1815, he directed that, upon certain contingencies — which soon thereafter happened — the greater part of his estate should- be invested in the stock of the Zanesville Canal and Manufacturing Company. In the event of said investment being made, the will farther provides as follows :
    “ And I direct that the president and directors of said company are annually forever to appropriate all the profits, rents, and issues of my stock as aforesaid, and all of my estate, of whatever kind the same may be, for the use and support of a poor-school, which they are to establish in the town of Zanesville, for the use of the poor children in said town; the children, who are the objects of the institution, to be fixed upon by the president and directors of said company.”
    At the date of the will said Zanesville Canal and Manufacturing Company were unincorporated; but soon after the death of the testator they were duly incorporated and authorized to accept and execute the trust; and their corporate existence has been made perpetual for that purpose by a subsequent act of the legislature.
    Upon the happening of the contingencies upon which dejoended this devise, the Zanesville Canal and Manufacturing Company accepted the trust, erected a school building in the city of Zanesville, and supported therein a “poor-school” until about the year 1856, when, owing to the flourishing condition of the public free schools of the city, and the repugnance of parents and children toward a distinctive “ poor-school,” the said Zanesville Canal and Manufacturing Company placed the building under the control of the city board of education; which board conducted schools therein in the same manner as if it were a ward school, the Zanesville Canal and Manufacturing Company paying the expenses of said school.
    In 1865, the said Zanesville Canal and Manufacturing Company assumed the expense of maintaining another of the ward schools of the city.
    The annual income of this fund amounts to some twelve thousand dollars, and the greater part of it is now being thus applied in aid of the public schools of the city, irrespective *of the pecuniary condition of the children who attend them.
    Since the death of the testator, several additions have been made to the town of Zanesville. Some of these additions are included in present corporate limits of the city and some are not. Of the latter description is a village, on the west side of the Muskingum river, called “ West Zanesville,” in which lots were laid out by the testator, and denominated by him on the plat as “ lots in Zanesville.” The incorporated town, in 1815, was situate entirely on the east side of the river.
    A part of the fund so donated is still uninvested, and stock in the Zanesville Canal and Manufacturing Company can not now be purchased, and, if so purchased, would be of little or no value.
    There are in the city many children of poor parents who can not, or do not, avail themselves of their right to attend the public schools of the city, on account of their want of books, of proper clothing, or of time, or from other such causes, notwithstanding the schools are free to all alike.
    The present case is a petition filed by the Zanesville Canal and Manufacturing Company, and the administrators with the will annexed of said estate, asking the court for directions and advice as to the manner of investing the remaining part of the fund, as to the extent and limits of the “ town of Zanesville ” within the meaning of said will, and as to the proper manner of executing the trust within those limits.
    The city of Zanesville answers, claiming that the present application of the fund, in aid of the free schools of the city, shall be continued.
    Since the filing of the petition, a voluntary association denominated the “ Muskingum Children’s Home Association,” has been made a party defendant, and filed an answer in the cause. The object of this association is “ to secure proper care, culture, and homes for children in the city and vicinity of Zanesville, who, by misfortune or vice, are left in destitute circumstances, without the comforts or culture of home, church, or school.” It is located at Zanesville, and has already received from the trustee some part of the Mclntire *fund to aid it, from time to time, in its charitable enterprise; and the asssociation asks that the trustee may be advised or directed to appropriate at least a part of the trust fund permanently for that use.
    
      Moses M. Granger, one of the plaintiffs, in person :
    1. The Zanesville Canal and Manufacturing Company have always considered the arrangement with the board of education as a temporary measure, intending, so soon as the entire estate shall bo converted into money, to apply the rents and profits, under instruction of the court, as nearly in accordance with the direction of the will as is now possible. It is admitted that the establishment of the free school system has made it nearly, if not quite, impossible to maintain a distinctive poor-school in competition with the public schools. Under this state of facts, I think our case comes clearly within the language used by Judge Lane, in the case of LeClerq et al. v. The Town of Gallipolis, 7 Ohio (pt 1), 217: “When circumstances are so changed that the direction of the donor prescribing the use, can not be literally carried into effect, the legislature, or the court, in those cases where general intention can be effected, may lawfully, in some cases, enforce its execution as nearly as circumstances admit, by the application’of the doctrine of cy pres, and when the object of the trust wholly fails, the fund does not become public property but reverts to the donor.”
    2. This naturally brings us to the inquiry : “ In what particular, or particulars, can not the directions of John Mclntire’s will be now literally carried into effect?”
    (1.) The property comprising the subject of the trust is in full existence; but as the stock of the Zanesville Canal and Manufacturing Company has long since ceased to have a money value, it is both improper and impossible to invest the fund in that stock. It is now invested partly in United States bonds, and partly in notes secured by mortgages on real estate. Upon this point, then, the direction of the court is asked.
    (2.) The trustee appointed by the will is still in existence, acting, and with full power to act, and possessed of all the ^powers given by the will, and accepted by the trustee, under the special authority of an act of the legislature. 14 Ohio L. 393-304 ; 39 Ohio L. L. 115, 116 ; 63 Ohio L. 204. One of those powers, is the right to select from among the poor children of Zanesville, the objects of the bounty, and another is the right to “ establish ” the institution through which that bounty is to be distributed. In these particulars, the Zanesville Canal and Manufacturing Company is the representative of John McIntire. Dartmouth College v. Woodward, 4 Wheat. 518; Trustees of McIntire Poor-school v. The Zanesville Canal and Manufacturing Company, 9 Ohio, 203, 286; Story’s Eq. Jurisp., sec. 1170, and cases there cited.
    So far, then, as the trustee empowered to select the objects of the bounty and to distribute it, is concerned, the directions of the will can not be literally complied with.
    
    It follows, then, that neither the city of Zanesville, the Board of Education, the Muskingum Children’s Home, nor any other person, persons, or corporations, can be authorized by the court to act as such trustee and exercise the powers incident to the trust.
    (3.) The objects from among whom the trustee is to select the recipients of the bounty, are described as the “ poor children in said town ” of Zanesville. The instruction of the Supreme Court of the State of Ohio, as to the interpretation of this portion of the will was given in the case of The Zanesville Canal and Manufacturing Co. v. City of Zanesville. 20 Ohio, 483, 488, 492.
    (4.) The mode in which the bounty of the testator can now by the trustee of his own appointment, be bestowed upon the objects of such bounty, when selected by the said trustee:
    While it has become impossible, as already admitted, to support a distinctive “ poor-school ” in competition with the free schools of the city, in furnishing a common-school education, it not only does not appear in this case that it is impossible to establish and support a “poor-school” of the class, academy, institute, or high school, which, receiving from the schools of the city those pupils who have there exhibited capacity for instruction in the higher branches, and have stood the test of examination required by the president and ^directors of the Zanesville Canal and Manufacturing Company, may afford them instruction in the higher branches, fitting them to enter upon the preparatory studies for the profession or business for which they may evince an aptitude. It not only does not appear that such a school is an impossibility, but it is, on the other hand, an actual possibility.
    Nor would this kind of a school furnish such education to only a few beneficiaries. “ Poor ” is a relative term. Hundreds of families rich enough to pay .for a common-school education are too poor to secure for their children tuition in the higher branches. My construction of the words “ poor children ” would include all whose parents could not afford to pay for this higher education.'
    It seems to me clear that, until it does appear that it is impossible to establish and support a school such as I have just described, for the benefit of the poor children of Zanesville who may be selected by Mclntire’s designated trustee, the court can not direct a different mode of applying the charity.
    3. Neither the city of Zanesville, the Muskingum Children’s. Home, nor any other claimant, can claim any part of the Mclntire fund, as of right. The utmost that can be accorded them, is to announce, as the opinion of the court, that the Zanesville Canal and' Manufacturing Company, president and directors, may, if they think fit, make appropriations of money arising from the rents, issues, and profits of the estate, in such sums as they deem right and proper, in aid of the public schools, or in aid of the Children’s Home, or in aid of both, in consideration of the instruction afforded by them or either of them to poor children of Zanesville.
    (1.) To make such arrangements, or either of them, permanent would clearly violate, in most material particulars, the intent of the testator. His appointed trustee has no voice or control or influence in the establishment or management of either the public schools of the city, or of the Children’s Home; no voice whatever in the selection of the children to be received into either.
    (2.) Again, the testator designed a benefaction to be known as his gift. Were he now living, can you suppose for one *moment that he would cast his estate into the fund produced by taxation, to relieve the property of Zanesville yearly from a few mills of tax per dollar ? Did he not wish the scholars taught by his bounty to recognize their obligations to him ?
    (3.) Does the Children’s Home stand in any better situation ? The children to be received into their charge, belong not to “ poor children ” generally, but to certain classes of poor children. They must not only be “poor,” but they must be of classes made destitute by misfortune or vice — destitute not only of money, but of good homes.
    (4.) The like objections will apply as against the claims of the Catholic schools, or any other claimants who may present themselves as parties defendant.
    4. While claiming that the trustee appointed by the will must establish, what I will here call in anticipation, “ The Mclntire Institute,” I see clearly that it may do more. The free schools have occupied the ground so far as common-school education (so called) is concerned, but as they do not supply books and such clothing as is necessary to enable some of the poor to attend school, the president and directors of the Zanesville Canal and Manufacturing Company •will gladly set apart a fixed sum annually for the purpose of providing-books and clothing for such of the poor children of Zanesville as they deem necessitous in those particulars, and worthy of the benefaction, if the court shall be of opinion that they have power to do so; and to make like provision in the institute whenever shall be established.
    
      Charles C. Goddard, for plaintiffs,
    referred to the following cases in which this court has passed upon questions arising under John McIntire’s will: Young & wife v. McIntire’s Executors, 3 Ohio, 498; McIntire Poor School v. Z. C. & M. Co., 9 Ohio, 203; Z. C. & M. Co. v. Zanesville, 20 Ohio, 483.
    
      A. W. Train, for the city of Zanesville r
    1. It is clear by the will that the intention of the testator was that the rents, profits, and issues of his- estate should be annually appropriated to aid the poor children of Zanesville in obtaining a common-school education.
    *By reason of our system of free schools, it is no longer practicable to maintain a distinct poor school; neither parents nor children will accept this offer; and the will of the testator can no longer be literally complied with.
    2. It being no longer practicable to maintain a distinct poor school, I claim, on behalf of the city, that the rents, issues, and profits of the Mclntire estate should be annually paid into the city school fund, for the general use of the public schools of the city. And for the reason that it will most nearly comply with the intention of the testator.
    (1.) In no other way can the poor children of Zanesville receive the benefits of this charity to aid them in obtaining an education.
    (2.) In this way the benefits of the fund will be sure to reach the poor children of the city, and will be confined to a common-school education, which just meets the wants and necessities of the masses.
    (3.) This construction will confine the benefits of the charity to the city of Zanesville, in compliance with the intention of the testator. 20 Ohio, 483.
    (4.) This construction will effect the general intention of the testator ; and a literal compliance being no longer possible, the court may enforce it in this manner by applying the doctrine of ey pres. 
      LeClercq v. Gallipolis, 7 Ohio, 221, and cases there cited; Story’s Eq. Jurisp., sec. 1169 ; Adam’s Eq. 69.
    3. The trustees of this charity should be instructed to disregard the requests of the Muskingum Childrens’ Home Association.
    (1.) The benefits of the “Home” are not limited to the children of Zanesville; while the testator’s charity is. 20 Ohio, 483.
    (2.) The leading object of the “ Home ” is not to educate its inmates, but to-furnish a home for the destitute and abandoned, while the great object of the testator was to assist the poor in obtaining an education; not to clothe and board them.
    (3.) In administering charities cy pres, the court will carry out tne intention of the testator as nearly as the circumstances will admit; and the more remote objects will be rejected. Story’s *Eq. Jurisp., sec. 1170; Attorney-General v. Ironmongers’ Co., 1 Craig & Phillips, 508, 522, cited in note in Story Eq. Jurisp., sec. 1170.
    4. The fund should not be appropriated for the support of a Mclntire Institute.
    (1.) It was not the intention of the testator that the trustee should select, from among the poor children, a few to receive the benefits of his bounty.
    (2.) The Mclntire Institute will not only not furnish such an education as the testator contemplated, but it will not furnish such an education as the great mass of poor children need.
    (3.) The Mclntire Institute is impracticable. But a small number of the poor children of Zanesville would accept its offer. It would require for its support more than the income of the entire fund. The success of such an institution is too uncertain to hazard the fund in it.
    5. The charity belongs to the poor children of the city. The testatator bequeathed it to them. The city is a party here, and makes her claim because she is the guardian of her poor children.
    6. We do not propose to substitute the tax-payers for the poor children of the city. Every dollar of the fund that goes to the support of the schools of the city, directly aids all her poor children.
    
      T. J. Taylor, for Childrens’ Home :
    It is not practically true, that in Ohio all can obtain an education. The doors of the public schools are closed against the vicious and corrupt — the very class whose education is essential to the well-being of society, tbe means therefor being provided, so far as relates to Zanesville, by the Mclntire fund. The object of the McIntire charity, the education of the “poor children of Zanesville,” still existing, Story’s Eq. Jurisp., sec, 1170a, has no application in that sense; the only question being the mode of administering the charity so as best to carry out the design of the testator. Mills v. Farmer, 1 Mer. 55, 94; Hill on Trustees, 450 ; Philadelphia v. Girard’s Heirs, 45 Penn. St. 9, 27, 28; Inglis v. Trustees of the Sailors’ Snug Harbor, 3 Peters, 99; Vidal et al. v. Girard’s Ex’rs, 2 How. 127; Chittenden v. Chittenden et al., 1 Am. Law Reg. 538.
    *In what mode can the charity of McIntire be administered?
    1. This fund can no longer be given to the general school fund of the city of Zanesville. It has been too long thus used, while the streets, lanes, and alleys of the city have been crowded, by beggars and thieves, under the age of sixteen.
    2. It certainly can not be administered by the establishment of the “ McIntire Institute.” The object of Mr. McIntire was to bring a common English education within the reach of all the poor children, or as many of them as possible; and this plan proposes to take only those who already possess that, while hundreds are without that, and without the means to procure clothing, etc., suitable to attend school; nor can such be induced to attend school without first securing a respectable appearance.
    3. The Muskingum Children’s Home Association, in its scope and spirit, is doing the work that was projected by Mr. McIntire. The very poor, the vicious, and corrupt, are not of the number who attend the public schools, but are of the number cared for at the “Home.” Within two years, twenty-five such have been removed from the many temptations to which, through poverty and ignorance, they are exposed, and started in careers of respectability and usefulness.
    It may be objected to the claim of the Children’s Home Association :
    1. That its operations are not confined to Zanesville.
    True; but can not that class of children be sent from Zanesville, and the expenses attending their care, board, and education, be paid for by the Mclntire fund ?
    2. That being a -charity, it will be shunned as was the McIntire school.
    
      The history of the past two years, and of the present moment, shows that as a home it is sought after, and doubtless because the inmates are removed from evil associations, and clothed and fed as well as educated.
    3. That the boarding and clothing are not within the scope of the bequest.
    If it be necessary to board and clothe the poor children in order to their education, then the authorities referred to fully *sustain the right, not to say duty, of the court to order the clothing .and boarding.
    4. That the object of the “ Home ” is not to furnish, permanently, & residence and education within the city, but only to sustain until suitable homes can be obtained for the children.
    This is true; but by the very terms of the bond given by every person receiving a child, a common-school education is secured to the child, including clothing, books, etc., suitable and necessary for .attending school.
   Welch, J.

The first question presented for our opinion and advice is, what shall be understood as the “ town of Zanesville,” within the meaning of this will? It seems to us that this question has been substantially answered in the case of The Zanesville Canal and Manufacturing Company v. The City of Zanesville, 20 Ohio, 483. The court in that case decided that the words are to be understood in their most general and popular sense;” that they are not to be confined to the town as incorporated, or as it existed at the time of testator’s death; but that they are to be understood in the sense in which they are popularly used, or may be used, at the time the -charity is dispensed. The court say in the case referred to : It could not but have been contemplated by its original founder, that it would, in process of time, expand itself greatly beyond the limits which at that time served its municipal purposes.” And, accordingly, the court advised that the trustees should not be limited by .any arbitrary lines, whether of town, borough, or city; but that the fund should be administered according to the dictates of that enlarged philanthropy which it may be supposed actuated its founder in making the bequest.” In accordance with this liberal interpretation, with which we fully agree, we have no hesitation in advising that all the poor children residing within any of the present or .future additions to the city, on either side of the river, should be •considered and treated as beneficiaries of the bequest, including those in said village on the west side of the river.

As to the uninvested funds, we advise and direct that they =*=be invested otherwise than in the stock of said Zanesville Canal and Manufacturing Company, in such way and manner, and at such time or times, as shall be found convenient by the trustees, and as will make the funds most productive and safe.

The question of greatest difficulty in the case, and that upon which the direction and advice, of the court is mainly asked, regards the manner of dispensing the charity. Shall the present plan of applying the principal part of it to aid the public schools of the ■city be continued ? Shall the whole fund be used in that way, as seems to be claimed on behalf of the city? If not, in what other manner shall it be dispensed?

We have no hesitation in advising and directing, that the plan •of aiding the public schools be discontinued. Appropriated thus, the fund inures equally to the benefit of the rich and poor children, .and has the effect merely to lighten the school tax assessed upon the property of the city. As a permanent plan, in our judgment, it would be a perversion of the gift from the purpose of the donor, which was that it should be wholly expended for the benefit of the “ poor children ” in the town or city.

But the purpose of the donor being to establish a “ school ” or “ institution ” for the use of poor children, and the state having supplied free schools for all children, what shall be done with the fund ? Is the object of the charity exhausted, and must the fund be paid over to the heirs of the donor? We think not. Wo must look deeper than the mere words of this donation, and, through them, see its spirit. We must inquire what the donor himself would now direct, had he lived to witness the present altered circumstances of the case. His object was to educate poor children to the extent of the fund bequeathed, and the “ school ” or “ institution ” provided for in the will, were mere means to that end. Had circumstances remained unchanged, perhaps a free “school” for poor children would have been the only necessary and appropriate instrumentality for that purpose, and the whole fund might have been exhausted, by thus merely remitting tuition fees to the scholars who should attend. But this means having ^become impracticable, can no other be adopted to the same end ? The law having anticipated and supplied the charity, so far as free schools are required, should not the trustees reach their hands further, and do more, and for that purpose resort to other means to effect, as far as the fund will go, the ultimate object of the donor? That object was, to instruct poor children in spite of their poverty. It was, so far to relieve their poverty as to make education accessible to them — to lift from them, as it were, that poverty which shuts out the light of knowledge, or so far to break through it, as to let in that light. This can be done by other methods than by merely remitting their tuition fees, which form but án inconsiderable part of the expenses of an education. It can be done as well by furnishing books. It can be done, when •other means fail, by furnishing shoes, clothes, and, in rare cases, perhaps even food. Of course, means of this nature should be-made incidental or secondary to the central idea of a school or institution, and should only be resorted to as aids thereof, in furthering the ultimate object in view, to wit, the education of poor children, and then only when the funds will admit of their use. Among such other means, I would recommend and urge a system -of night schools, as perhaps less objectionable, and more efficient for-reaching the minds of children who can not, or will not, attend upon the public schools of the city, than'any other that can be named. Such a system, it seems to me, might be arranged to bi'ingthe schools, as it were, home to the children, by making the schools numerous and small, or by distributing them, or alternating them, in the different parts of the city. All would have time to attend, such schools, and much of the difficulty arising from want of clothing, suitable for the appearance of children in the public schools, would be obviated. The use of books might be supplied in such schools, and the books themselves be retained in the schools, or loaned, or given to the scholars, as found to be best adapted to the end in view. Of course, such a school might also be opened and taught in the main edifice appropriated for general instruction.

Another use to which this fund can, doubtless, be legitimately-applied, is, in furnishing to poor children an education *in. the higher branches of learning, such as are not taught in the common or public schools of the city. If the child has not riches, there is no good reason why he should not, if found a suitable subject for it, have a liberal education instead of riches. When the rich man’s child has gone through the public schools, he has the-means to go further and complete an education. The poor man’s child has no such means. To furnish such means, in proper cases, is clearly within the object of this donation. The counsel for the-trustees seems to claim that this should now be regarded as the-principal or only object. We think otherwise. We believe the purposes of the donor would be best subserved by making that object secondary to the procurement of a common or rudimentary education for the mass of poor children in the city. To devote the whole fund, or the principal part of it, to the former use, would be to establish an institution with a full corps of professors, at high salaries, and with comparatively few students to instruct. To admit into such an institution, as it is suggested by counsel might be done, “ pay-students ” from outside the city, would be either to leave the fund undiminished by their admission, or to expend it on objects not contemplated by the donor.

I know not that my brethren agree with me in all I have said, as to the manner of administering this charity within the limits specified; but we concur in advising that the scope and extent of the powers of the trustees are as I have indicated. In the absence of any report of a master, or of evidence of the particular circumstances, we do not undertake to adopt or advise any plan or scheme-for the exercise of these powers. The will intrusts a largo discretion to the trustees, and they are perhaps as competent to adopt a scheme for themselves, which, under all the circumstances, will be best adapted to fulfill the purposes of the gift, as any officer of the court would be to devise one for them; and we leave that matter to their discretion, to be exercised as varying circumstances-may require.

We advise, however, that the trustees maintain and use a suitable buildi-ng for general purposes of instruction, supplied with such teachers in the different branches of learning, as *they shali from time to time find necessary, and as the wants of the beneficiaries may require; but in connection therewith, or in addition thereto, to employ such other agents and instructors, to operate elsewhere in the city, as may be found convenient and necessary in executing their powers aforesaid. We advise, moreover, that in all cases where any part of the funds shall be placed in the hands of other associations or persons, for distribution or use in effecting the objects of the donations, such associations or persons shall be regarded as mere aids or agencies of the trustees, who should at all times retain in their own hands the power to super - vise and control the administration of the funds, and to withdraw them at pleasure.

A decree will be entered accordingly, as follows:

DECREE.

This cause came on to be heard upon the petition and amended petition 'of the plaintiffs, the answers of the defendants, and the exhibits and testimony, and was argued by counsel. On consideration whereof, the court direct and advise that the uninvested part of the fund, referred to in the petition, be invested otherwise than in the stock of said Zanesville Canal and Manufacturing Company, in such way and manner as shall be most productive and safe. And the court are of opinion, and so advise said trustees, that it is'the true meaning and intent of said will, that, in the selection of children to be the beneficiaries of said bounty, they are not confined- to the limits of the original town of Zanesville, or to the corporate limits of the borough or city of Zanesville, but may and should select them also from the said village of West Zanesville, or from any and all other additions to said town or city, which, in the common and popular sense, constitute parts thereof at the time of selection. And the court further advise and direct the said trustees to discontinue the present plan of applying a portion of the proceeds of said trust fund in aid of the common or public schools of said city of Zanesville, being of opinion that any permanent appropriation of said funds, or any portion of them, in that way would be a perversion of the same, from the true objects and purposes *of the donation. And the court, further proceeding to advise said trustees as to their duties in the premises, are of opinion, and declare, that the real and ultimate purpose of the donor was to educate poor children resident in Zanesville; that, in carrying out that purpose, the powers of the trustees are not confined to the mere establishment and maintenance of a free school or institution for the education of poor children; but that they may, when found proper and necessary to the end proposed, also adopt other means for the education of such poor children, in connection with such school or institution, and as incidental thereto, including, among such other means, that of so far relieving the wants of such poor children as to make their education practicable, when that end can not be otherwise attained, and the proceeds of said fund are sufficient for that purpose. But the court further advise, that the trustees maintain and use at all times some suitable edifice or edifices for instruction, and that when they see proper to dispense any part of said funds through other associations or persons, they retain in their own hands a supervisory power over them, and the right at all times to control their action. And it is further ordered and adjudged by the court, that all the cost herein be paid by said trustees out of the proceeds of said trust fund.

Day, C. J., and White, Brinkerhoee, and Scott, JJ., concurred.  